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United States v. Maldonado-Salinas

United States District Court, D. Nebraska

October 14, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
HECTOR MALDONADO-SALINAS, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         This 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.

         A § 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.

         BACKGROUND

         The 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.

         The 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.

         DISCUSSION

         The 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 argument.[1]

         The 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 felony"

(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.

         But § 2L1.2(b)(1)(A)(ii)-the provision at issue in this case-uses an entirely different definition. ...


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