United States District Court, S.D. Texas, Laredo Division
REPORT AND RECOMMENDATION
Sheldon, United States Magistrate Judge.
Nabor Cruz-Perez, pro se, filed a 28 U.S.C. §
2255 Motion challenging both his conviction and sentence for
illegal re-entry in violation of 8 U.S.C. § 1326. (Dkt.
Nos. 1 and 2, Cr. Dkt. Nos. 83 and 84.) The District
Court has referred this case to the undersigned United States
Magistrate Judge. (Dkt. No. 7.) Pursuant to 28 U.S.C. §
636(b)(1)(B), the Magistrate Judge respectfully submits this
Report and Recommendation recommending that Petitioner's
Motion be DENIED, and this civil action be
DISMISSED WITH PREJUDICE.
Petitioner's Immigration and Criminal History
November 3, 2015, Border Patrol agents encountered Petitioner
near Bonuglis, which is located near Laredo, Texas. (Cr. Dkt.
No. 55 at 4.) It was then determined that Petitioner
unlawfully entered the United States from Mexico by wading
across the Rio Grande. (Id.) He was also a Mexican
citizen illegally in the United States. (Id. at
4-5.) A subsequent record check further revealed that
Petitioner had twice been deported to Mexico. (Id.
at 5.) Additionally, Petitioner had three prior
convictions-one each in 2009, 2010, and 2012-in California
for "Possession for Sale of a Controlled
Substance." (Id.) Finally, he had a prior
conviction in 2013 for illegal re-entry after prior
deportation in violation of 8 U.S.C. § 1326.
(Id., Cr. Dkt. No. 56 at 45.)
Indictment, Guilty Plea and Sentencing
was indicted for illegal re-entry after prior deportation in
violation of 8 U.S.C. § 1326 (Cr. Dkt. No. 8), and he
subsequently pled guilty. (Cr. Dkt. No. 74 at 84:14-25.)
Petitioner's Presentence Investigation Report calculated
his base offense level as eight. (Cr. Dkt. No. 55 at 6.) His
base level was then adjusted upward 16 levels due to his
prior deportation following a felony drug trafficking
conviction under U.S.S.G. § 2Ll.2(b)(1)(A)(i) (2015).
(Id. at 7.) Finally, his offense level was adjusted
downward three levels for acceptance of responsibility.
(Id. at 8.) Therefore, Petitioner's total
offense level was 21, criminal history category of VI, which
resulted in a sentencing range of 77 to 96 months
imprisonment. (Cr. Dkt. No. 58 at 1.)
sentencing, Petitioner's counsel objected to the 16-level
enhancement and instead requested a four-level enhancement.
(Cr. Dkt. No. 78 at 12:2-16.) The Court sustained the
objection and recalculated the total offense level to 10,
criminal history category of VI, with a sentencing range of
24 to 30 months. (Id. at 15:18-25.) The Court then
imposed a 36-month sentence that exceeded the upper guideline
range due to Petitioner's criminal and immigration
history. (Id. at 20:11-23; Cr. Dkt. No. 66.)
Additionally, the Court imposed an 18-month sentence for his
supervised release violation to run consecutive to his
36-month sentence. (Cr. Dkt. No. 78 at 20:6-23.) The Fifth
Circuit subsequently affirmed Petitioner's conviction and
sentence. United States v. Cruz-Perez, No. 16-41563,
691 F. App"x 183, 184 (5th Cir. June 21, 2017) (per
Standard of Review
conducting an initial examination of a motion to vacate
pursuant to § 2255, the court must dismiss it "[i]f
it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief." RULE 4(b), RULES Governing
Section 2255 Proceedings. Additionally, a § 2255 motion
can be dismissed without an evidentiary hearing when
"the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief." 28 U.S.C. § 2255(b).
Motion, Petitioner contends that a new constitutional rule
set forth by the Supreme Court in Sessions v.
Dimaya, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018),
invalidates his prior removal order that served as the basis
for his conviction under 8 U.S.C. §1326. (Dkt. No. 1 at
4.) Without a predicate removal order, Petitioner argues that
his conviction for violation of 8 U.S.C. § 1326 is
unconstitutional and invalid. (Id.) In the
alternative, and if the Court is not inclined to invalidate
his prior removal order, Petitioner requests that the Court
remand the underlying criminal case for resentencing without
imposing a 16-level enhancement. (Id. at 13.)
Dimaya, the Supreme Court held that the definition
of a 'crime of violence,' found at  U.S.C. §
16(b), was unconstitutionally vague as applied and
incorporated into the immigration law."
Melendez-Jimenez v. U.S., No. CR B: 15-168-1, 2018
WL 3720064, at *5 (S.D. Tex. July 11, 2018) (citing
Dimaya, 138 S.Ct. at 1223), report and
recommendation adopted, No. 1:15-CR-168-1, 2018 WL
3708503 (S.D. Tex. Aug. 3, 2018). Section 16(b) defines a
crime of violence as "any other offense that is a felony
and that, by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense." 18
U.S.C. § 16(b). The Supreme Court deemed 18 U.S.C.
§ 16(b) unconstitutionally vague because this definition
"necessarily devolved into guesswork and intuition,
invited arbitrary enforcement, and failed to provide fair
notice." Dimaya, 138 S.Ct. at 1223.
reliance on Dimaya is misplaced because neither of
his prior deportations was premised on crimes on violence.
Dimaya created a right to challenge convictions
premised on crimes of violence as defined under 18 U.S.C.
§ 16(b). Id. Petitioner was deported in 2010
after his drug trafficking conviction and was deported again
in 2013 after his felony illegal reentry conviction. (Cr.
Dkt. No. 55 at 10-13.) Simply stated. Petitioner's
criminal history and deportation orders do not invoke 18
U.S.C. § 16(b) and. thus, are not of type of criminal
convictions to support a challenge under Dimaya. See
United States v. Castillo, No. CR H-07-492, 2017 WL
5952909, at *3 (S.D. Tex. Mar. 29, 2017) (holding that drug
trafficking offenses are not "crimes of ...