United States District Court, D. New Mexico
PROPOSED FINDINGS OF FACT AND RECOMMENDED
Fashing United States Magistrate Judge.
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. 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
Background Facts and Procedural Posture
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 § 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.
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.
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.
Reyes-Espinoza's Claims and the Government's
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.
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.
Johnson Does not Apply to this Case, and Beckles
Forecloses Reyes-Espinoza's Claim that he was Sentenced
Under an Unconstitutionally Vague Guideline Provision.
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
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