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United States v. Reyes-Espinoza

United States District Court, D. New Mexico

February 22, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
OSCAR REYES-ESPINOZA, Defendant/Movant.

          PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

          Laura Fashing United States Magistrate Judge.

         THIS MATTER comes before the Court on Oscar Reyes-Espinoza's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. Doc. 35.[1] The Honorable Kenneth J. Gonzales referred this case to me to recommend to the Court an ultimate disposition of the case. No. CIV 16-1408 KG/LF, Doc. 4. Having reviewed the submissions of the parties and the relevant law, I recommend that the Court DENY Reyes-Espinoza's motion.

         I. Background Facts and Procedural Posture

         On September 8, 2015, Reyes-Espinoza pled guilty to an indictment that charged him with reentry of a removed alien, in violation of 8 U.S.C. §§ 1326(a) and (b). See Docs. 11, 30, 47. He pled guilty without a plea agreement. See Docs. 33, 47 at 23-24. The probation officer who prepared Reyes-Espinoza's presentence report (“PSR”) determined that Reyes-Espinoza's base offense level was 8 under USSG[2] § 2L1.2. PSR ¶ 9. He received a sixteen-level enhancement pursuant to USSG § 2L1.2(b)(1)(A) because he had been convicted of a crime of violence before he was removed from the United States. PSR ¶ 10. He received a three-level reduction pursuant to USSG § 3E1.1 for acceptance of responsibility. PSR ¶¶ 17, 18. Reyes-Espinoza's total offense level was 21, and his criminal history category was VI, which resulted in an advisory guideline sentencing range of 77 to 96 months in prison. PSR ¶¶ 19, 33-35, 53.

         Neither party objected to the PSR's guideline calculations. See Doc. 48 at 2-3, 7. Reyes-Espinoza came before the Court for sentencing on December 15, 2015. See generally Id. The Court adopted the PSR's guideline calculations, but it determined that Reyes-Espinoza's criminal history category-category VI-overrepresented the seriousness of his criminal history. See Id. at 14-15. The Court departed downward to criminal history category IV, which resulted in an advisory guideline range of 57 to 71 months in prison. Id. at 15. The Court sentenced Reyes-Espinoza to 57 months in prison. Id. It entered its judgment the same day. See Doc. 34.

         On December 27, 2016, Reyes-Espinoza filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, in part based on a claim that his counsel was ineffective because he failed to file a notice of appeal. Doc. 35. The government filed its response on March 14, 2017, and asked the Court to hold an evidentiary hearing on Reyes-Espinoza's ineffective assistance of counsel claim. Doc. 40 at 8. On July 19, 2017, Reyes-Espinoza filed a Notice of Change of Address and Motion to Supplement, Doc. 43, which the Court construed as a motion to amend his 2255 motion. See Doc. 50. The Court appointed counsel to represent Reyes-Espinoza and gave him an opportunity to file a memorandum in support of his motion to amend, as well as an opportunity to file a reply to the government's response. See Docs. 45, 50, 52, 56. Reyes-Espinoza did not file any additional materials in support of his motion to amend, nor did he reply to the government's response to his 2255 motion. See generally Clerk's Docket Sheet. The government opposed Reyes-Espinoza's motion to amend, arguing that the motion was untimely, and that the claims that Reyes-Espinoza raised were meritless. Doc. 66. The Court held an evidentiary hearing on January 19, 2018, on Reyes-Espinoza's claim that his attorney did not file a notice of appeal despite his request that he do so. Doc. 68. Both Reyes-Espinoza and his former attorney testified. See id.

         II. Reyes-Espinoza's Claims and the Government's Response

         Reyes-Espinoza argues in his 2255 motion that the Court erred in sentencing him because “[t]here is no distinguishable difference between the residual clause [that the Supreme Court struck down in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015)] and the guideline enhancement [Reyes-Espinoza] received in this case at sentencing.” Doc. 35 at 5. Therefore, he says, “the Supreme Court's ruling in Johnson applies to this case, ” and his sentence must be vacated. Id. Reyes-Espinoza also argues that his attorney was ineffective because he had asked his attorney to file a notice of appeal shortly after he was sentenced, and his attorney failed to do so. Id. at 6. In his motion to supplement, which the Court construed as a motion to amend, he alleges that he had told his defense counsel that he was a United States citizen because he had been adopted by his U.S. citizen step-father. Doc. 43 at 1. To support this claim, he attaches a document showing that his name was changed from Oscar Omar Reyes to Oscar Omar Hernandez on June 19, 2002, when Reyes-Espinoza was about twelve years old. See Doc. 43 at 3; PSR at 2 (showing date of birth). He also claims that he would not have pled guilty had he been informed of the immigration consequences of his plea. Doc. 43 at 1.

         The government argues in response that Reyes-Espinoza's first claim is precluded by the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). Doc. 40 at 7. It further argues that even if Beckles did not foreclose his claim, the Court enhanced Reyes-Espinoza's sentence based on the enumerated crimes clause of § 2L1.2, not the residual clause. Doc. 40 at 6-8. With respect to Reyes-Espinoza's claim that his attorney failed to file a notice of appeal, the government acknowledged that the Court should hold an evidentiary hearing on that issue, but it attached an affidavit from Reyes-Espinoza's former attorney that stated that the attorney had consulted with Reyes-Espinoza about his appellate rights, and that Reyes-Espinoza did not tell him to file a notice of appeal. Doc. 40 at 8; Doc. 40-3 ¶¶ 8, 10. In response to Reyes-Espinoza's motion to amend, the government argues that the motion is untimely, that Reyes-Espinoza has not submitted any evidence that he is a U.S. citizen, and that Reyes-Espinoza was fully informed of the immigration consequences of his guilty plea on the record and immediately before he pled guilty. Doc. 66. In sum, the government asks the Court to deny Reyes-Espinoza's motion to amend, and to deny his 2255 petition.

         III. Discussion

         A. Johnson Does not Apply to this Case, and Beckles Forecloses Reyes-Espinoza's Claim that he was Sentenced Under an Unconstitutionally Vague Guideline Provision.

         Reyes-Espinoza's first claim is based on the Supreme Court's decision in Johnson, which struck down a portion of the Armed Career Criminal Act (ACCA). The ACCA provides, in pertinent part, that “[i]n the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony . . . committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years . . . .” 18 U.S.C. § 924(e)(1). “[T]he term ‘violent felony' means any crime punishable by imprisonment for a term exceeding one year . . . that-(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements clause”]; or (ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated crimes clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”] . . . .” 18 U.S.C. § 924(e)(2)(B). In Johnson, 135 S.Ct. at 2563, the Supreme Court struck down the residual clause as unconstitutionally vague, but it left intact the elements clause and the enumerated crimes clause. The following year, the Court held that Johnson announced a substantive rule that applied retroactively on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Thus, to be entitled to relief under Johnson, a defendant must have been sentenced under the residual clause of the ACCA, not the elements clause or the enumerated crimes clause.

         In this case, Reyes-Espinoza was not sentenced under the ACCA. Instead, he received a sixteen-level enhancement to his base offense level because he had been deported after having been convicted of a crime of violence. See PSR ¶ 11; USSG § 2L1.2(b)(1)(A)(ii). The term “crime of violence” is defined as

any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local ...

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