United States District Court, D. New Mexico
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 ...