Martinez-Mendoza v. United States

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE

         Came on for consideration the motion of Roberto Carlos Martinez-Mendoza, movant, to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The court, having considered the motion, the government's response, the record in the underlying criminal case, No. 4:18-CR-186-A, and applicable authorities, finds that the motion should be denied.

         I.

         Background

         The record in the underlying criminal case reflects the following;

         On August 7, 2018, movant was named in a one-count indictment charging him with illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). CR Doc.^[1] 1. On September 6, 2018, movant appeared before the court with the intent to enter a plea of guilty to the offense charged without benefit of a plea agreement. Movant and his attorney signed a factual resume setting forth the elements of the offense, the maximum penalty movant faced, and the stipulated facts supporting movant's guilt. CR Doc. 16. Under oath, movant stated that no one had made any promise or assurance of any kind to induce him to plead guilty. Further, movant stated his understanding that the guideline range was advisory and was one of many sentencing factors the court could consider; that the guideline range could not be calculated until the presentence report ("PSR") was prepared; the court could impose a sentence more severe than the sentence recommended by the advisory guidelines and movant would be bound by his guilty plea; movant was satisfied with his counsel and had no complaints regarding his representation; and, movant and counsel had reviewed the factual resume and movant understood the meaning of everything in it and the stipulated facts were true. CR Doc. 39.

         The probation officer prepared the PSR, reflecting that movant's base offense level was 8. CR Doc. 20, ¶ 14. He received an eight-level enhancement because, before he was ordered deported or removed the first time, movant was convicted for a felony offense for which the sentence imposed was two years or more. Id. at ¶ 15. He received a two-level and a one-level reduction for acceptance of responsibility. Id. at ¶¶ 21, 22. Based on a total offense level of 13 and a criminal history-category of III, movant's guideline range was 18 to 2 4 months. Id. at ¶ 67. Movant filed an objection, CR Doc. 22, and the probation officer prepared an addendum to the PSR. CR Doc. 24. On December 21, 2018, movant was sentenced to a term of imprisonment of 3 0 months to be followed by deportation. CR Doc. 33. Movant appealed, CR Doc. 35, and his judgment was affirmed. United States v. Martinez-Mendoza, 774 Fed.Appx. 260 (5th Cir. 2019).

         II.

         Ground of the Motion

         Movant asserts one ground in support of his motion. Doc. 1 at PageID 4. He says:

Because my indictment not allege a prior conviction, it charged only a violation of § 1326(A) so my 30 months sentence exceeds the 2 years statutory maximum.

Id. In support of this ground, he alleges:

My guilty plea was UNKNOWING and INVOLUNTARY because I wasn't informed that the felony provision of 8 U.S.C. 1326 (B) (1) stated an essential elemnt [sic] of the offense to which I was pleading, If I was informed I would ask my lawer [sic] to guided [sic] me in a different way or maybe go to trial, I know I did wrong actions in my past I know I have to pay for what I did but if you can see in my criminal background I paid for evrything ...