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Hernandez v. United States

United States District Court, D. Idaho

November 1, 2016

ANTONIO ROSALES HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER

          Edward J. Lodge United States District Judge.

         INTRODUCTION

         Pending before the Court in the above-entitled matter is Petitioner's § 2255 Motion to vacate, set aside, or correct sentence. (CV Dkt. 1) (CR Dkt. 28.) The Government filed a response. (CV Dkt. 5). Petitioner failed to file a reply. The matter is ripe for the Court's consideration.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Indictment in this case charged the Petitioner Antonio Rosales Hernandez with Deported Alien Found in the United States. Hernandez entered a plea of agreement and pled guilty to the charge. The Plea Agreement provided Hernandez could receive a departure under the Fast Track program if his criminal history was not too high and did not include a prior crime of violence or a prior controlled substances offense. It is undisputed Hernandez had a criminal history of V and convictions for assault as well as one controlled substances conviction.

         On November 26, 2013, Hernandez was sentenced by the Court. The Court granted Hernandez's two level departure based on cultural assimilation and sentenced him at the low end of the applicable Sentencing Guideline range to 57 months imprisonment with no supervised release based on Defendant's likelihood of being deported after completing his term of imprisonment. The Presentence Investigation Report (which Hernandez should be able to review via his Bureau of Prisons case manager) indicates in ¶ 17 that Hernandez received a 16 point specific offense characteristic enhancement under § 2L1.2(b)(1)(A)(ii) based upon “the felony crime of violence offense Assault By State Prisoner, CR2001-1193061.” Petitioner did not file an appeal.

         Due to this crime of violence enhancement, Petitioner argues based on the Supreme Court ruling in Johnson v. United States, 135 S.Ct. 2251 (2015) that by analogy his crime of violence under the Sentencing Guidelines should also be determined to be unconstitutional based on the similar residual clause defining a crime of violence contained in § 4B1.2. Petitioner also argues his illegal reentry conviction is not a crime of violence and prior deportations should not be used as aggravated felonies to increase his sentence.

         The Government responds that the motion is untimely and barred by the waiver of the right to file a habeas petition contained in the Plea Agreement. In addition, the Government argues it has not been determined whether the Johnson reasoning applies to the Guidelines, but the Court need not reach that issue since there is another way for the Court to lawfully enhance the Petitioner's Guidelines calculation by using his prior controlled substances conviction. Therefore the sentence would be the same. Moreover, the Government argues there was no enhancement for prior deportations and prior deportations were not considered aggravated felonies by the Court.

         STANDARD OF REVIEW

         Section 2255 permits a federal prisoner in custody under sentence to move the court that imposed the sentence to vacate, set aside, or correct the sentence on the grounds that:

the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack ....

§ 2255(a); see also Hill v. United States, 368 U.S. 424, 426-27 (1962) (articulating the four grounds upon which § 2255 relief can be claimed).

         There is a distinction between constitutional and jurisdictional errors and errors of law or fact. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 593 (2d ed. 1982). If the alleged error is one of law or fact, then § 2255 does not provide a basis for collateral attack “unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 442 U.S. 178, 185 (1979) (citing Hill, 368 U.S. at 428). Section 2255 is not a substitute for appeal. Id. at 184. If the matter has been decided adversely to the defendant on direct ...


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