United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE
Torres, through appointed counsel, filed a Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255. (CV Doc. 1; CR
Doc. 44.) He argues that Johnson v. United
States, 135 S.Ct. 2551 (2015), disqualifies the two
prior felony convictions used to enhance his sentence under
the residual clause of the Career Offender Guideline,
U.S.S.G. § 4B1.2 (2002), and entitles him to
resentencing. (See Doc. 1 at 9-16.) The United
States filed a response. (Doc. 9.)
also filed two other motions: a Motion for Release on
Conditions (Doc. 11), to which the United States filed a
response (Doc. 14), and he filed a reply (Doc. 15), and a pro
se Motion for Judgment by Default (Doc. 16), to which the
United States did not respond.
these three motions were pending, the Supreme Court issued
its decision in Beckles v. United States, 137 S.Ct.
886 (2017). I issued an Order Directing the Parties to Confer
and File a Joint Statement in Light of Beckles.
(Doc. 18.) The parties filed the joint statement: the United
States argued that Beckles “is dispositive of
the issues in Mr. Torres' 2255 motion” (Doc. 19 at
1), while Torres argued that Beckles “applies
only to sentences imposed pursuant to the advisory
guidelines, post-Booker” (id. at 2).
joint statement also asked for “a briefing schedule on
the effect of Beckles on Mr. Torres' § 2255
motion.” (Id. at 2.) I issued an order setting
a briefing schedule. (Doc. 21.) The United States filed an
amended response (Doc. 23), and Torres filed an amended reply
his claims may be resolved on the record alone, I have not
conducted an evidentiary hearing. I recommend the Court deny
all three pending motions.
pled guilty to a two-count information charging him with one
count of possession with intent to distribute 50 grams and
more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A), and one count of
distribution of less than 50 grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). (Presentence Report (“PSR”) at 1;
CR Docs. 13 at 2; 14 at 1.)
sentencing, the Court adopted the PSR (CR Doc. 20 at 1),
which classified Torres as a career offender under U.S.S.G.
§ 4B1.1(a) (2002) based on prior convictions for New
Mexico Voluntary Manslaughter, in 1998, and New Mexico
Accessory to Aggravated Battery with a Deadly Weapon, in
1999. (PSR at 6, 9-10.) Because of the career offense
designation, his offense level was increased to 37.
(Id. at 6.) After a three level reduction for
acceptance of responsibility, his offense level was 34, and
his criminal history category was VI. (Id.) His
guideline imprisonment range was 262-327 months as to count
one, and 240 months as to count two, with the terms to run
concurrently. (Id. at 16; CR Doc. 20 at 1.) He was
sentenced to 262 months of imprisonment on December 17, 2002
(CR Doc. 20 at 1), and Judgment was entered the same day (CR
Doc. 19 at 1). He did not appeal his conviction.
parties agree that, without the career offender designation,
Torres's sentencing range would be 110-137 months.
(See Doc. 9 at 2; Doc. 11 at 3.) They offer slightly
different calculations to reach this sentencing range: the
United States says his offense level would be 25 with a
criminal history category of VI, while Torres says 28 and VI,
November 28, 2003, Torres filed a pro se Motion to Vacate
Illegal Sentence under 28 U.S.C. § 2255 alleging
ineffective assistance of counsel. (CR Doc. 21 at 1.) The
Court dismissed the motion. (CR Doc. 26 at 1.)
25, 2016, Torres, through counsel, sought permission to file
a successive § 2255 motion, seeking to argue that his
career offender enhancement was unconstitutional after
Johnson. (CR Doc. 41-1 at 1-2.) The Tenth Circuit
granted the authorization. (CR Doc. 42 at 1.) Torres filed
his motion on June 23, 2016. (Doc. 1.)
argues that his sentence violates the Due Process Clause of
the Fifth Amendment because it was imposed under the residual
clause of the then-mandatory career offender guideline, which
contains the same language the Supreme Court found
unconstitutionally vague in Johnson. (See
Doc. 24 at 1, 17-18.) Torres notes that the sentencing
guidelines were mandatory in 2002 when he was sentenced
because the Supreme Court had not yet ...