United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER is before the Court on Defendant's pro se
Notice of Timely Johnson Retroactivity Claim and
Preservation of Right (CIV Doc. 1, CR Doc. 63),
filed May 16, 2016. On May 19, 2016, the Court entered an
order noting that the motion was docketed as a § 2255
motion and granting leave for Defendant Soto-Robledo
(“Soto”) to either amend or to withdraw his
motion within 30 days of the entry of the Order. Doc.
64. In response to that Order, Soto filed an amended
motion pursuant to § 2255 on June 29, 2016 that added
two additional claims. Doc. 66. The United States
filed a response to that amended motion on August 22, 2016.
Doc. 68. Having reviewed the parties'
submissions and relevant authorities, the Court finds that
the issues are clear and that the § 2255 Motion is not
well-taken. The Court will therefore recommend to the
presiding judge that the motion be denied without an
August 25, 2014, Soto pled guilty to the § 1326 illegal
reentry charge in the single-count indictment without the
benefit of a plea agreement. Doc. 29. The Honorable
Kenneth G. Gonzales sentenced Soto-Robledo to 57 months
incarceration on February 3, 2015 after overruling his
objections to the Presentence Report (PSR). Doc. 36.
On appeal, the Tenth Circuit affirmed Judge Gonzales'
decision expressly finding that Judge Gonzales “could
reasonably rely on the 16-level enhancement [for a prior drug
trafficking conviction] to arrive at an appropriate
sentence.” Doc. 62 at 3.
Standard of Review
28 U.S.C. § 2255, a court is permitted to vacate,
correct or set aside a sentence that was “imposed in
violation of the constitution or laws of the United States,
or that the Court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to a collateral
attack.” 28 U.S.C. § 2255. Section 2255 presumes
that the movant is entitled to an evidentiary hearing on his
claims unless the record conclusively establishes that the
defendant is not entitled to relief. 28 U.S.C. §
at both the original and amended motions filed pursuant to
§ 2255, Soto raises three claims for relief: (1)
retroactive application of Johnson v. United States,
135 S.Ct. 2551 (2015), to his case; (2) lack of jurisdiction
for the United States to prosecute Soto in the United States
District Court for the District of New Mexico; and (3)
ineffective assistance of counsel for failure to object to an
electronically-filed document in his appeal with the Tenth
Circuit with an allegedly improper signature.
The Johnson Claim
as Defendant relies on the Johnson decision as a
basis for relief, his faith is misplaced. In
Johnson, the United States Supreme Court determined
that the Armed Career Criminal Act (“ACCA”)
residual clause for defining a violent felony, 18 U.S.C.
§ 924(e), was unconstitutionally vague.
Johnson, 135 S.Ct. at 2557. Thus, an enhancement of
a sentence using that residual clause was found to be
Supreme Court subsequently held that Johnson applies
retroactively to cases on collateral review in Welch v.
United States, 136 S.Ct. 1257 (2016). Moreover, the
Tenth Circuit has expanded the Johnson rationale to
hold unconstitutional indistinguishable clauses used to
define violent felonies, including such clauses found within
the advisory federal sentencing guidelines and other
statutory provisions. United States v. Madrid, 805
F.3d 1204, 1211 (2015) (career offender guideline §
4B1.1); Golicov v. Lynch, 2016 WL 4988012
(10th Cir. Sept. 19, 2016) (18 U.S.C. §16(b)
and, by extension, 8 U.S.C. §
however, Johnson simply is not implicated. No
residual clause - ACCA or otherwise - was used to enhance
Defendant Soto's sentence. Instead, the then-applicable
16-level enhancement for a prior “aggravated
felony” conviction was predicated on Soto's prior
drug trafficking conviction in violation of C.R.S.A. §
18-18-405. Drug trafficking offenses are expressly identified
as aggravated felonies under 8 U.S.C. § 1101(43)(C), so
there was no need to resort to analysis under the crimes of
violence residual clause under 8 U.S.C. § 1101(43)(F).
Similarly, as the United States points out, a residual clause
simply “does not exist under U.S.S.G. §
2L1.2.” Doc. 68. Insofar as Soto was sentenced
as a career offender pursuant to U.S.S.G. § 4B1.1, that
enhancement was also based exclusively on that prior Colorado
drug trafficking conviction. Thus, the Johnson
holding and rationale are simply inapplicable, and the claim
Claim of Lack of Jurisdiction to Prosecute
his amended motion is not a model of clarity, Soto appears to
argue that the United States Attorney for the District of New
Mexico lacked jurisdiction to prosecute him for illegally
returning to the United States after his removal.
3231 of Title 18 of the United States Code provides that
“[t]he district courts of the United States shall have
original jurisdiction, exclusive of the courts of the States,
of all offenses against the laws of the United States.”