United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 44)
filed by the defendant, Hector Maldonado-Salinas. The motion
was timely filed less than 1 year after the defendant's
conviction became final. See § 2255(f). The
Court's initial review is governed by Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
defendant was convicted pursuant to a guilty plea of reentry
of a removed alien after an aggravated felony conviction, in
violation of 8 U.S.C. § 1326. The parties entered into a
plea agreement stipulating, among other things, that the
defendant had previously been convicted of burglary and
sentenced to not less than 36 months' nor more than 5
years' imprisonment, and that the defendant's base
offense level "should be increased by 16 levels for a
conviction of a felony that is a crime of violence, pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(ii), resulting in a Total
Offense Level of 24." Filing 22 at 2-3.
Court found the defendant's total offense level to be 21,
based on an adjusted offense level of 24 and a three-level
reduction for acceptance of responsibility. Filing 43 at 1;
seefiling 39 at 7. Based on an offense level of 21
and a criminal history category of IV, the Court found the
defendant's Guidelines range to be 57 to 71 months, but
departed downward pursuant to the parties' plea agreement
and imposed a sentence of 40 months' imprisonment. Filing
42 at 2; filing 43 at 1-2.
sole argument presented by the defendant's § 2255
motion is that his burglary conviction should no longer be
considered a "crime of violence" for purposes of
§ 2L1.2(b)(1)(A)(ii) in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). Filing 44 at 4-5, 10. But
there are two problems with the defendant's
first problem is that Johnson has no application to
§ 2L1.2(b)(1)(A)(ii). In Johnson, the Supreme
Court struck down the "residual clause" of the
definition of "crime of violence" contained in 18
U.S.C. § 924(e)(2)(B). 135 S.Ct. at 2563. That
definition provided, in relevant part, that a "violent
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another . .
§ 924(e)(2)(B). The Supreme Court held that the language
"involves conduct that presents a serious potential risk
of physical injury to another" was unconstitutionally
vague. Johnson, 135 S.Ct. at 2563.
§ 2L1.2(b)(1)(A)(ii)-the provision at issue in this
case-uses an entirely different definition. ...