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Argueta-Zaldivar v. United States

United States District Court, M.D. Florida, Fort Myers Division

December 18, 2017

SANTOS DAMIAN ARGUETA-ZALDIVAR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.

         This matter came before the Court on petitioner's Emergency “Mail Box” Filing (Cv. Doc. #1; Cr. Doc. #49)[1] dated June 24, 2016, and filed on June 27, 2016, seeking to file a motion under 28 U.S.C. § 2255. The Court deemed the filing to be a motion under 28 U.S.C. § 2255 as of June 24, 2016, and allowed petitioner to file the motion on the proper form. (Cv. Doc. #3.) Petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #6; Cr. Doc. #50) and Supplemental Memorandum of Law (Cv. Doc. #7; Cr. Doc. #51) were filed on July 19, 2016. The government filed a Response (Cv. Doc. #9) on September 12, 2016.

         I.

         On September 14, 2011, a federal grand jury in Fort Myers, Florida returned a one-count Indictment (Cr. Doc. #1) charging petitioner with illegal reentry into the United States after having been convicted of an aggravated felony offense in Nevada (the attempted sale of a controlled substance), and after having been deported on or about February 12, 2003, in violation of 8 U.S.C. § 1326(a) and (b)(2). On August 1, 2012, petitioner pleaded guilty to the charge. (Cr. Docs. #26, 28.)

         A Presentence Report (PSR) was prepared, and a sentencing hearing was held on October 29, 2012. (Cr. Doc. #33.) Petitioner was sentenced under the 2011 United States Sentencing Guidelines (USSG) (PSR at ¶ 20), so the Court will refer to the Sentencing Guidelines as they were written at that time. At the sentencing hearing there were no objections to the facts set forth in the PSR, or to the application of the Sentencing Guidelines. (Cr. Doc. #40, p. 4.)[2]

         Pursuant to USSG § 2L1.2(a) (2011), petitioner was assigned a Base Offense Level of 8 for the offense of conviction. (PSR ¶¶ 20-21.) This Base Offense Level was enhanced by 16 levels pursuant to § 2L1.2(b)(1)(A)(i) & (ii), which provide:

If the defendant previously was deported, or unlawfully remained in the United States, after-
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; . . . increase by 16 levels if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points; . . .

USSG § 2L1.2(b)(1)(A) (2011). The Presentence Report found that two prior convictions independently supported a 16-level increase: (1) a drug trafficking offense for which the sentence imposed exceeded 13 months, i.e., petitioner's 1998 conviction for Attempted Sale of a Controlled Substance in Clark County, Nevada (PSR ¶ 22); and (2) a 1999 conviction for Assault With a Deadly Weapon, Great Bodily Injury Likely, in Sacramento, California, which constituted a crime of violence. (PSR ¶ 22.) A second count of attempted murder was dismissed in the California case and was not considered. (Id. at ¶ 36.) Petitioner received criminal history points under Chapter 4 of the Guidelines for both of these prior convictions. (Id. at ¶ 22.)

         Based upon either of these prior convictions, the resulting Adjusted Offense Level was 24. (Id. at ¶ 26). Three levels were subtracted based upon petitioner's acceptance of responsibility (id. at ¶¶ 27-28), resulting in a Total Offense Level of 21 (id. at ¶ 29). With a Total Offense Level of 21, and a criminal history category of VI[3], the resulting range of imprisonment was 77 to 96 months. (PSR ¶ 84.) The Court sentenced petitioner to a term of imprisonment of 84 months, followed by a term of supervised release. (Cr. Doc. #33.) Judgment (Cr. Doc. #34) was filed on October 30, 2012.

         Petitioner appealed his sentence, and on June 6, 2013, the Eleventh Circuit affirmed the sentence. United States v. Argueta-Zaldivar, 521 Fed.Appx. 834 (11th Cir. 2013); Cr. Doc. #47. Petitioner did not seek certiorari review.

         II.

         Petitioner raises only one issue in his § 2255 Motion and Supplemental Memorandum. Petitioner asserts that his sentence was improperly enhanced based upon a prior conviction which can no longer be considered a crime of violence in light of Johnson v. United States, 135 S.Ct. 2551 (2015), which was made retroactive to cases on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016). (Cv. Doc. #6, p. 4; Doc. #7, pp. 1, 3.) In Johnson, the United States Supreme Court held that the Armed Career Criminal Act's (ACCA) residual clause is unconstitutionally vague. Although the ACCA was not involved in Petitioner's sentencing, petitioner argues that the use of his 1999 California conviction for attempted second degree murder was improper because it is not a crime of violence under 18 U.S.C. § 16, which contains a definition which is substantially the same as the ACCA residual clause. (Cv. Doc. #6, p. 4; Cv. Doc. #7, pp. 2-3.) Petitioner further assert that his motion is timely under 28 U.S.C. § 2255(f)(3) because it was filed within one year of Johnson (decided June 26, 2015). (Cv. Doc. #6, p. 11.) Petitioner seeks to be re-sentenced without the enhancement. (Cv. Doc. #6, p. 12; Doc. #7, p. 3.)

         Even if the petition was timely and not procedurally defaulted, petitioner is not entitled to the relief he seeks for several reasons. First, petitioner does not challenge the use of his prior drug trafficking conviction to enhance the Sentencing Guidelines calculation (Cv. Doc. #7, p. 2). This conviction alone supports the 16-level enhancement. Second, petitioner is factually incorrect as to the crime which was also used to enhance the Sentencing Guidelines calculation. The attempted murder charge in California had not resulted in a conviction, and was not used to enhance petitioner's Sentencing Guidelines calculation. Third, contrary to petitioner's belief (Doc. #7, pp. 2-3), Petitioner was not given two 8 level enhancements, but a single 16 level enhancement which was independently supported by either of the two prior convictions. (PSR ¶ 22.) Fourth, the California offense upon which the enhancement was based was Assault With a Deadly Weapon, Great Bodily Injury Likely. This offense is clearly a crime of violence under California precedent.[4]United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (“cases holding that a crime is categorically a crime of violence under the element prongs of the § 2L1.2(b) and § 16(a) definitions are mutually binding”). See also United States v. Duran-Garcia, 432 F. App'x 850, 852 (11th Cir. 2011) (finding that because the California Penal Code requires the use of a firearm, the conviction qualifies as a crime of violence under USSG § 2L1.2(b)(1)(A)(ii)); United States v. Santos-Santos, 463 F. App'x 728, 732 (11th Cir. 2011) (citing Grajeda); United States v. Flores, 508 F. App'x 864, 866 (11th Cir. 2013) (noting that assault with a deadly weapon in California is a crime of violence). Fifth, petitioner is incorrect in stating that he had to be sentenced under USSG § 2L1.2(b)(1)(C), and that the definition of “crime of violence” under 18 U.S.C. § 16, which is a listed “aggravated ...


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