United States District Court, D. New Mexico
December 15, 2016
UNITED STATES OF AMERICA, Plaintiff,
FREDOR EDUARDO CARBAJAL-ARGUETA, Defendant. CR No. 15-2989 KG
PROPOSED FINDINGS AND RECOMMENDED
WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE
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.) 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.
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.
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.)
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
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).
the record alone establishes that Carbajal-Argueta's
§ 2255 motion should be denied, I did not hold an
“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.)
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).
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 Circuit has referred to this part of
the definition as the “elements clause.”
Id. at 1247. Carbajal-Argueta's prior felony
conviction was under Fla. Stat. § 812.133, which is
titled “Carjacking.” Carjacking does not appear
in the enumerated clause as a crime of violence.
determine whether a defendant's prior conviction
qualifies as a crime of violence under the enumerated clause
of § 2L1.2, courts ordinarily employ the categorical
approach, i.e., they compare the offense of
conviction with the generic offense.
Maldonado-Palma, 839 F.3d at 1247. “The
elements of the [prior] offense must be the same or narrower
than the elements of the generic offense” for the
enhancement to be valid. Id. (citing Mathis v.
United States, 136 S.Ct. 2243, 2247 (2016)). If,
however, the statute sets out alternative elements for the
crime, it is considered a divisible statute, and courts
employ a modified categorical approach, which requires
examination of certain documents in the record to determine
the specific elements that sustained the defendant's
conviction. Id. (citing Mathis, 136 S.Ct.
comparison here is between the elements of the Florida
carjacking statute and generic robbery. The carjacking
‘Carjacking' means the taking of a motor vehicle
which may be the subject of larceny from the person or
custody of another, with intent to either permanently or
temporarily deprive the person or the owner of the motor
vehicle, when in the course of the taking there is the use of
force, violence, assault, or putting in fear.”
Fla. Stat. § 812.133(1). “Generic robbery, ”
in turn, “is the unlawful taking of property from
another person or from the immediate presence of another by
force or intimidation.” United States v.
McGuire, No. 6:16-cv-01166-JTM, 2016 WL 4479129, at *2
(D. Kan.Aug. 25, 2016) (unpublished). Another statute that I
discuss below is the Florida robbery statute, which reads:
‘Robbery' means the taking of money or other
property which may be the subject of larceny from the person
or custody of another, with intent to either permanently or
temporarily deprive the person or the owner of the money or
other property, when in the course of the taking there is the
use of force, violence, assault, or putting in fear.
Fla. Stat. § 812.13(1).
the categorical approach reveals that the elements of the
carjacking statute are narrower than the elements of generic
robbery. There are, however, two differences that require
explanation. First, the carjacking statute includes both a
permanent and temporary deprivation of the motor vehicle,
while generic robbery does not address the length of the
deprivation of the property. The Ninth Circuit, however, has
held that “generic robbery is a theft offense . . .
[and] does not include the element that the stolen property
be taken permanently.” United States v.
Velasquez-Bosque, 601 F.3d 955, 960 (9th Cir. 2010)
(holding that defendant's conviction under the California
carjacking statute qualified as robbery and a crime of
violence under § 2L1.2). The temporal differences
between the Florida carjacking statute and generic robbery
the carjacking statute lists “force, violence, assault,
or putting in fear” as a means of taking the motor
vehicle, while generic robbery only includes “force or
intimidation” as a means of taking the property. This
raises the question of whether the two additional terms in
the carjacking statute-“violence” and
“assault”-“cover a greater swath of
conduct” than the elements of generic robbery and
therefore cannot give rise to a sentence enhancement. See
Mathis, 136 S.Ct. at 2251. They do not.
United States v. Flores-Hernandez, 250 F. App'x
85, 88 (5th Cir. 2007) (unpublished), the Fifth Circuit
affirmed the defendant's enhanced sentence under §
2L1.2 for a conviction under the Florida robbery statute and
noted the statute “contains the essential elements of
robbery.” Relatedly, in Gander v. Secretary
Department of Corrections, No. 3:14cv520/ MCR/EMT, 2015
WL 9647541, at * 7 (N.D. Fla. Nov. 18, 2015) (report and
recommendation) (adopted Jan. 6, 2016, 2016 WL 75070) (both
unpublished), the magistrate judge reasoned that “the
elements of [robbery and carjacking] are identical, except
that robbery is broader than carjacking, in that it involves
taking of money or other property, while carjacking is
limited to motor vehicle robbery.” The Florida Supreme
Court has also discussed the relationship between the Florida
carjacking and robbery statutes, noting: “[t]he
carjacking statute is a very specific subset of the more
general robbery statute. When the Legislature enacted the
carjacking statute, it carved out a particular type of
robbery . . . .” Cruller v. State, 808 So.2d
201, 204 (Fla. 2002).
cases demonstrate that Carbajal-Argueta's conviction
under the carjacking statute qualifies him for an enhanced
sentence under the crime of “robbery” in the
enumerated clause of § 2L1.2. The inferential chain is
as follows: per Flores-Hernandez, the elements of
the Florida robbery statute are akin to the elements of
generic robbery and qualify a defendant for an enhancement
under § 2L1.2; per Gander and Cruller,
the elements of the Florida carjacking statute are narrower
than the elements of the Florida robbery statute; so here,
Carbajal-Argueta's prior conviction under the Florida
carjacking statute qualifies him for an enhancement under the
“crime of violence” of “robbery” in
the enumerated clause of the Commentary of §
2L1.2 because the elements of carjacking are narrower than
the elements of generic robbery.
that Carbajal-Argueta's sentence was validly enhanced,
his Johnson argument is inapplicable because he was
not sentenced under the residual clause of the ACCA or a
similar residual clause in § 2L1.2.
also waived the right to collaterally attack his sentence,
and the waiver is enforceable under Tenth Circuit precedent.
In United States v. Hahn, 359 F.3d 1315, 1325 (10th
Cir. 2004), the court adopted a “three-prong
analysis” for “reviewing appeals brought after a
defendant has entered into an appeal waiver”:
“(1) whether the disputed appeal falls within the scope
of the waiver of appellate rights; (2) whether the defendant
knowingly and voluntarily waived his appellate rights; and
(3) whether enforcing the waiver would result in a
miscarriage of justice.” Applying the first prong, the
collateral attack falls within the scope of the waiver
because Carbajal-Argueta filed a § 2255 motion after
waiving his right to file a § 2255 motion. That is, the
Plea Agreement states that “defendant agrees to waive
any collateral attack to the defendant's conviction(s)
and any sentence . . . pursuant to 28 U.S.C. § . . .
2255 . . . except on the issue of defense counsel's
ineffective assistance” (Doc. 28 at 6), but
Carbajal-Argueta later filed a § 2255 motion raising a
claim under Johnson, which does not qualify as a
motion addressing defense counsel's ineffective
the second prong, Carbajal-Argueta's waiver was knowing
and voluntary because it satisfies the “two
factors” listed in the Hahn decision:
“First . . . whether the language of the plea agreement
states that the defendant entered the agreement knowingly and
voluntarily. Second, [whether there was] an adequate Federal
Rule of Criminal Procedure 11 colloquy.” 359 F.3d at
1325 (internal citations omitted).
Plea Agreement satisfies the first factor because it contains
the following statements: an acknowledgement of waiver of
appellate rights and collateral attack (see Doc. 28
at 6); an acknowledgement that the plea was
“voluntarily made and not the result of force or
threats” (id. at 7); and statements from both
Carbajal-Argueta and his attorney that both individuals
thoroughly discussed the consequences of the Plea Agreement
(see Id. at 8). As for the second factor, the Plea
Minute Sheet indicates that Judge Garza discussed the case
with Carbajal-Argueta and questioned him extensively before
concluding: “plea freely, voluntarily, and
intelligently made.” (See Doc. 29 at 1.)
the third Hahn factor, enforcing the plea does not
result in a miscarriage of justice because there is no
evidence in the record-and no argument from Carbajal-Argueta-
that the waiver resulted from “one of the four
[prohibited] situations”: “the district court
relied on an impermissible factor such as race, . . . [the
defendant received] ineffective assistance of counsel in
connection with the negotiation of the waiver [which] renders
the waiver invalid, . . . the sentence exceeds the statutory
maximum, or . . . the waiver is otherwise unlawful.”
Hahn, 359 F.3d at 1327 (quoting United States v.
Elliot, 264 F.3d 1171, 1173 (10th Cir. 2001)).
Supreme Court's decision in Johnson has no
impact on the validity of the enhanced sentence
Carbajal-Argueta received under U.S.S.G. §
2L1.2(b)(1)(A) (2015). In addition, Carbajal-Argueta's
Plea Agreement waived collateral review of his sentence, and
the waiver is enforceable.
recommend that Carbajal-Argueta's motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct sentence (CV
Doc. 1; CR Doc. 125) be denied and this case be dismissed
with prejudice. I further recommend that the Court deny a
Certificate of Appealability. See 28 U.S.C. §
PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy
of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District
Court pursuant to 28 U.S.C. § 636(b)(1). A party must
file any objections with the Clerk of the District Court
within the fourteen-day period if that party wants to have
appellate review of the Proposed Findings and Recommended
Disposition. If no objections are filed, no appellate review
will be allowed.
 All citations refer to filings in the
civil case, unless otherwise noted with “CR Doc,
” which refers to filings in the criminal case.