Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Cervantes-Arteaga

United States District Court, N.D. Texas, Dallas Division

January 3, 2020

UNITED STATES OF AMERICA
v.
JOSE GUSTAVO CERVANTES-ARTEAGA

          MEMORANDUM OPINION AND ORDER

          SAM A. LINDSAY UNITED STATES DISTRICT JUDGE

         The court issues this memorandum opinion and order to address Defendant Jose Gustavo Cervantes-Arteaga's (“Defendant” or “Cervantes-Arteaga”) objections to the Presentence Investigation Report (“PSR”) regarding the eight-level enhancement under U.S.S.G § 2L1.2 and his contention that application of the 2018 Sentencing Guidelines Manual violates the ex post facto clause of the United States Constitution. He asserts that this objection affects paragraphs 16, 18, 22, 26, and 58 of the PSR. In addition, Cervantes-Arteaga argues that Paragraph 18 of the PSR “inappropriately assesses an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(3), ” and that the PSR should, instead, “cite to U.S.S.G. § 2L1.2(b)(2) as it appears in the 2016 (and not the 2018) Guidelines.” Def.'s Obj. to PSR 2. The court addresses these issues in writing, as similar ex post facto issues involving the application of § 2L1.2 to post-removal revocations in light of Amendment 809 to the United States Sentencing Guidelines have arisen in prior sentencings handled by this court. For the reasons herein explained, the court overrules Defendant's objections.

         I. Factual and Procedural Background

         Cervantes-Arteaga, who is a citizen of Mexico, first entered the United States illegally on March 1, 1997. Between March 2003 and March 2010, he was arrested on three occasions, and no immigration action was taken. On January 4, 2015, Cervantes-Arteaga was arrested in Denton County, Texas, for Driving While Intoxicated (“DWI”) 3rd or More. He pleaded guilty to this offense in Case No. F15-646-211 on February 10, 2016, and was sentenced to ten-years probation. Thereafter, he was ordered removed and was deported on June 10, 2016, to Mexico.

         A short time later, Cervantes-Arteaga reentered the United States illegally and was found in Webb County, Texas, on July 9, 2016, where he was arrested and charged with the offense of Illegal Entry in a federal district court in Laredo, Texas. On July 13, 2016, Cervantes-Arteaga pleaded guilty to the Illegal Entry offense, was sentenced to 90-days custody, and was removed to Mexico a second time on October 12, 2016.

         At some point, Cervantes-Arteaga reentered the United States illegally again and was arrested on August 12, 2018, for DWI by a Farmer's Branch Police Department officer. The charge for this offense was later dismissed after the judge granted a motion to suppress evidence. Cervantes-Arteaga was not released, however, because, after his arrest, he was encountered by immigration officials on August 13, 2018, while he was still in custody for the DWI charge and subject to a detainer.

         Cervantes-Arteaga was named in a one-count Indictment filed in the Northern District of Texas, Dallas Division, on December 4, 2018. The Indictment charged him with Illegal Reentry After Removal from the United States, in violation of 8 U.S.C. § 1326(a) & (b)(1). On April 1, 2019, Cervantes-Arteaga was transferred to the custody of the United States Marshals Service, pursuant to a writ of habeas corpus ad prosequendum. He initially entered a plea of not guilty but later pleaded guilty to the charge in the one-count Indictment on July 25, 2019. Before pleading guilty, Cervantes-Arteaga's probation in Case No. F15-646-211, for DWI 3rd or More, was revoked on March 6, 2019, and he was sentenced to two-years imprisonment. It is this revocation that forms the basis for the eight-level enhancement in paragraph 18 of the PSR, to which Defendant objects.

         Regarding the offense level computation, PSR paragraph 16 states as follows:

The offense of conviction concluded on August 13, 2018. This officer has reviewed and compared the Guidelines Manual in effect on the date the defendant is to be sentenced and the Guidelines Manual in effect on the date that the offense of conviction was committed. Based on this review, this officer determined the use of the Guidelines Many in effect on the date the defendant is sentenced will not violate the ex post facto clause of the U.S. Constitution. As such, the November 1, 2018, Guidelines Manual, incorporating all guideline amendments, was used to determine the defendant's offense level. USSG § 1B1.11(a).

PSR § 16. Paragraph 18 of the PSR adds an eight-level enhancement under U.S.S.G. § 2L1.2 as follows:

Specific Offense Characteristics: Pursuant to USSG § 2L1.2(b)(3)(B), if after the defendant was ordered deported or ordered removed from the United States for the first time, the defendant engaged in criminal conduct that, at any time, resulted in a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed exceeded one year and one month, an 8-level increase is warranted. On March 6, 2019, the defendant's probation term for Driving While Intoxicated 3rd or More, in Case No. F15-646-21[1], was revoked and he was sentenced to two years imprisonment. As such, an 8-level increase is warranted.

PSR § 18.[1]

         As noted, Defendant filed objections to the PSR, contending that: (1) application of the 2018 Sentencing Guidelines Manual violates the ex post facto clause of the United States Constitution; and (2) paragraph 18 of the PSR “inappropriately assesses an 8-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(3), ” and that the PSR, in applying the enhancement under § 2L1.2, incorrectly cites to the wrong subsection. Def.'s Obj. to PSR 2.

         Regarding the first objection, Defendant argues that U.S.S.G. § 1B1.11(b)(1) requires the court to “use the Guidelines Manual in effect on the date that the offense of conviction was committed, ” and that the commentary to that section provides that “[t]he last date of the offense of conviction is the controlling date for ex post facto purposes.” Def.'s Obj. to PSR 2 (quoting § 1B1.11(b)(1) & comment. (n.2)). Defendant maintains that application of the 2018 Guidelines Manual in this case would constitute an ex post facto violation because use of the 2018 Guidelines Manual results in a higher advisory guideline range of 24 to 30 months, whereas application of the 2016 Guidelines Manual that was in effect when his 2016 DWI offense in Case No. F15-646-211 was committed and completed results in an advisory guideline range of only 15 to 21 months. Def.'s Obj. to PSR 2 (citing Peugh v. United States, 569 U.S. 530, 538 (2013)). Defendant, therefore, contends that the court should use the 2016 Guidelines Manual in calculating his sentencing range. In his related second ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.