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United States v. Carbajal-Argueta

United States District Court, D. New Mexico

December 15, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
FREDOR EDUARDO CARBAJAL-ARGUETA, Defendant. CR No. 15-2989 KG

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE

         Fredor Eduardo Carbajal-Argueta filed a Motion Under 28 U.S.C. § 2255 and Johnson v. United States, 135 S.Ct. 2551 (2015), to vacate, set aside, or correct sentence. (CV Doc. 1; CR Doc. 33.)[1] He argues that he is entitled to resentencing because a provision in the sentencing guideline for Unlawfully Entering or Remaining in the United States, U.S.S.G. § 2L1.2 (2015), that was used to enhance his sentence is unconstitutionally vague. (See Doc. 1 at 1.) Because I find that Carbajal-Argueta's claims may be resolved on the record alone, I have not conducted an evidentiary hearing. I recommend that his motion be denied.

         Background

         Carbajal-Argueta pleaded guilty on October 7, 2015, to a one count indictment charging him with reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b). (CR Docs. 21, 28, 29.) The Presentence Report (“PSR”) calculated a base offense level of 8 under U.S.S.G. § 2L1.2; an enhancement of 16 levels under § 2L1.2(b)(1)(A)(ii) for a prior felony conviction for robbery/carjacking; a reduction of 3 levels for acceptance of responsibility and 2 levels for the plea agreement for a total offense level of 19; a criminal history category of III; and a sentencing range of 37 to 46 months. See PSR at 4, 6, 11.

         Carbajal-Argueta signed a Fast Track Plea Agreement on October 7, 2015, and pleaded guilty before the Honorable Carmen E. Garza, United States Magistrate Judge, on the same day. (CR Doc. 28, 29.) On January 20, 2016, the Honorable Bernard A. Friedman, Senior United States District Judge, sentenced Carbajal-Argueta to 37 months' imprisonment. (CR. Docs. 31, 32.) He did not file a direct appeal. He filed this § 2255 motion on May 9, 2016. (Doc. 1.)

         Standard of Review

         Because Carbajal-Argueta is a pro se litigant, I must construe his pleadings liberally and hold them to a less stringent standard than is required of a party represented by counsel. See Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 2008) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Liberal construction requires courts to make some allowance for a pro se litigant's “failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at 1110) (alterations omitted). Even with these allowances, however, “the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Id.

         Evidentiary Hearing

         A court must conduct a hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996). Under this standard, “the petitioner bears the burden of alleging facts which, if proved, would entitle him to relief.” Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) (quotation omitted), overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001) (en banc). Accordingly, if the prisoner alleges facts which, if believed, cannot be grounds for relief, there is no need for a hearing. Id. Additionally, the petitioner's “allegations must be specific and particularized; conclusory allegations will not suffice to warrant a hearing.” Id. (citation and internal punctuation omitted). If the claims relate to occurrences in the courtroom or evidence in the record, then the Court need not conduct a hearing. Machibroda v. United States, 368 U.S. 487, 494-95 (1962).

         Because the record alone establishes that Carbajal-Argueta's § 2255 motion should be denied, I did not hold an evidentiary hearing.

         Discussion

         Carbajal-Argueta “requests consideration of Johnson relief” and argues that “the predicates used to enhance or designate him as a lawful [sic] offender are now questionable after the Johnson decision.” (Doc. 1 at 1) (italics added). The United States responds that “Defendant's sentence was enhanced based on a definition of ‘crime of violence' that does not include a residual clause, ” and “Defendant expressly waived his right to collateral attacks.” (Doc. 4 at 1-2.)

         In Johnson, the Supreme Court found unconstitutionally vague the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), which defined “violent felony” to include any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Johnson, 135 S.Ct. at 2563. The Tenth Circuit, in a recent decision, reiterated that Johnson “left untouched the remainder of the ACCA's definition of ‘violent felony, '” United States v. Freeburg, 655 F. App'x 649, 649 (10th Cir. 2016) (unpublished), which therefore still includes a crime that “(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, [or] involves use of explosives . . . ” 18 U.S.C. § 924(e)(2)(B)(i), (ii).

         The enhancement Carbajal-Argueta claims is unconstitutional is in the sentencing guideline titled “Unlawfully Entering or Remaining in the United States.” U.S.S.G. § 2L1.2. It instructs the court to “[a]pply the [g]reatest” “[i]f the defendant previously was deported, or unlawfully remained in the United States, after, ” among other things, “a conviction for a felony that is . . . (ii) a crime of violence.” § 2L1.2(b)(1)(A)(ii). The Commentary defines “crime of violence” as “any of the following offenses under federal, state, or local law” and lists, among other offenses, “robbery.” The Tenth Circuit has referred to this part of the definition as the “enumerated clause.” United States v. Maldonado-Palma, 839 F.3d 1244, 1246-47 (10th Cir. 2016). The Commentary also includes as a “crime of violence” “any other offense . . . that has as an element the use, attempted use, or threatened use of physical force against the person of another.” This wording is identical to subsection (i) of the ACCA. The Tenth ...


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