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Cruz-Perez v. United States

United States District Court, S.D. Texas, Laredo Division

March 11, 2019

NABOR CRUZ-PEREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          Sam S. Sheldon, United States Magistrate Judge.

         Petitioner 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.)[1] 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.

         I. Background

         A. Petitioner's Immigration and Criminal History

         On 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.)

         B. Indictment, Guilty Plea and Sentencing

         Petitioner 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.)

         At 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, [2] 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 curiam).

         II. Standard of Review

         After 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).

         III. Petitioner's Motion

         In his 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.)

         "In Dimaya, the Supreme Court held that the definition of a 'crime of violence,' found at [18] 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.

         Petitioner's 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 ...


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