United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
August 20, 2014, movant Mario Penaloza-Trejo pled guilty to
illegally reentering the United States after deportation, in
violation of 8 U.S.C. § 1326(a). (CR. Docket
The court sentenced Mr. Penaloza-Trejo to 57 months of
imprisonment, which constituted the bottom end of his
sentencing guidelines imprisonment range. (CR. Dockets 31 at
¶ 63 & 35). On February 2, 2016, Mr. Penaloza-Trejo
filed the present motion under 28 U.S.C. § 2255. (Docket
1). He asks the court to vacate its judgment and resentence
him under Johnson v. United States. Id. at
p. 12. Pursuant to the court's standing order of November
19, 2015, the Office of the Federal Public Defender entered
an appearance in this case as Mr. Penaloza-Trejo's
counsel. The government opposes Mr. Penaloza-Trejo's
motion. (Docket 4). Following two stays requested by Mr.
Penaloza-Trejo to await the outcome of potentially
determinative Supreme Court cases, see Dockets 8, 9,
11 & 12, the parties submitted supplemental briefing.
(Dockets 17 & 18). For the reasons given below, the court
denies Mr. Penaloza-Trejo's motion and declines to issue
a certificate of appealability.
Facts & Procedural History
23, 2014, Mr. Penaloza-Trejo was arrested on a federal
criminal complaint alleging he illegally reentered the United
States following deportation. An Immigration and Customs
Enforcement agent stated in an affidavit that Mr.
Penaloza-Trejo came into contact with law enforcement in
Rapid City, South Dakota, and that he had been deported to
Mexico three times, in 2001, 2004, and 2011. (CR. Docket 1-1
at pp. 1-2). A grand jury indicted Mr. Penaloza-Trejo on
August 13 and he pled guilty on August 22. (CR. Dockets 17
United States Probation Office (“Probation”)
prepared a Presentence Investigation Report
(“PSR”) regarding Mr. Penaloza-Trejo's
offense. (CR. Docket 31). Probation reported defendant was
convicted of two drug offenses in Washington state in 1994.
Id. at ¶ 31. The PSR describes the offenses as
“Manufacture/Deliver Schedule 1 or 2 Controlled
Substance (felony)” and “Possess with Intent to
Distribute Schedule 1 or 2 Controlled Substance
(felony)”. Id. According to the PSR, Mr.
Penaloza-Trejo sold an undercover law enforcement officer
“$30 worth of heroin” and dropped a second bag
“containing heroin”. Id. After being
“found guilty of both counts[, ]” Mr.
Penaloza-Trejo was sentenced to 60 months imprisonment on
each count, running concurrently. Id. The
description of these offenses does not state how much heroin
Mr. Penaloza-Trejo sold or possessed. It also does not state
the Washington statutes of conviction.
assigned Mr. Penaloza-Trejo a 16-level increase in his
guidelines imprisonment range because of his 1994 drug
convictions. Id. at ¶ 15. Probation applied the
increase pursuant to the 2014 version of U.S.S.G. §
2L1.2, which increased the base offense level for illegal
reentry by 16 levels if the defendant had been convicted of a
“drug trafficking” felony “for which the
sentence imposed exceeded 13 months[.]” U.S.S.G. §
2L1.2(b)(1)(A)(i) (2014). The application notes defined a
drug trafficking offense as “an offense under federal,
state, or local law that prohibits the manufacture, import,
export, distribution, or dispensing of, or offer to sell a
controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 2L1.2,
comment. (n.1(B)(iv)) (2014). Mr. Penaloza-Trejo did not
object to this enhancement. Largely based on the enhancement
and his extensive criminal history, the PSR calculated Mr.
Penaloza-Trejo's guideline range of imprisonment at 57 to
71 months. (CR. Docket 31 at ¶ 63). The court sentenced
Mr. Penaloza-Trejo to 57 months of custody on December 4.
(CR. Docket 35). Mr. Penaloza-Trejo did not appeal.
Penaloza-Trejo filed the present § 2255 motion pro
se on February 6, 2016. (Docket 1). He first argued his
sentence was improperly enhanced because his Washington drug
trafficking offense was considered a “crime of
violence” under the Immigration and Naturalization
Act's (“INA”) aggravated felony provisions.
(Docket 1-1 at p. 1). Johnson v. United States, in
Mr. Penaloza-Trejo's view, forbade using the
unconstitutionally vague term “crime of violence”
to enhance his sentence. Id. at pp. 1-3. In the
motion, Mr. Penaloza-Trejo summarily states he did not appeal
his conviction because “counsel was ineffective.”
(Docket 1 at p. 5). He does not raise any other ineffective
assistance of counsel claim in the remainder of the motion or
in any other briefing.
court ordered the government to respond. (Docket 3). It notes
Johnson declared the “residual clause”
of the Armed Criminal Career Act (“ACCA”)
unconstitutional and argues Mr. Penaloza-Trejo was not
sentenced under that statute. (Docket 4 at pp. 4-8). The
Office of the Federal Public Defender, acting as Mr.
Penaloza-Trejo's counsel, filed a reply brief, asserting
Johnson necessarily invalidated the residual clause
used in U.S.S.G. § 4B1.2, which, in its view, applied to
Mr. Penaloza-Trejo's sentence. (Docket 5 at pp. 2-5). Mr.
Penaloza-Trejo then moved to stay resolution of his motion to
await the outcome of Beckles v. United States, 137
S.Ct. 886 (2017), and Sessions v. Dimaya, 138 S.Ct.
1204 (2018). (Dockets 8 & 11). While his case was stayed,
Mr. Penaloza-Trejo filed a pro se brief asserting
the application of the 16-level increase violated his
constitutional right to due process because his Washington
drug convictions were not “drug trafficking”
offenses under the definition provided in U.S.S.G §
2L1.2. (Docket 13).
April 24, 2018, Mr. Penaloza-Trejo moved to lift the stay.
(Docket 14). The court granted his motion and ordered the
parties to file supplemental briefing addressing the legal
issues in the case. (Docket 16). In that round of briefing,
Mr. Penaloza-Trejo, via his counsel, argued the only
remaining issue is whether the 16-level increase he received
was based on the INA's penalty for aggravated felons
convicted of a crime of violence. (Docket 17 at pp. 1-2). The
government contends Mr. Penaloza-Trejo was sentenced as an
aggravated felon because of his drug convictions, not under
the INA's crime of violence provision. (Docket 18 at pp.
court must grant Mr. Penaloza-Trejo's motion if it finds
“the sentence 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 collateral attack[.]” 28 U.S.C.
§ 2255(a). When “jurisdictional and constitutional
errors” are not at issue, “the permissible scope
of a § 2255 collateral attack on a final conviction or
sentence is severely limited; an error of law does not
provide a basis for collateral attack unless the claimed
error constituted a fundamental defect which inherently
results in a complete miscarriage of justice.” Sun
Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011)
(en banc) (internal quotation omitted). “An unlawful or
illegal sentence is one imposed without, or in excess of,
statutory authority.” Id. at 705.
review is an extraordinary remedy and will not be allowed to
do service for an appeal.” Bousley v. United
States, 523 U.S. 614, 621 (1998) (internal quotations
omitted). “[A] petitioner may not raise an issue before
the district court for the first time in a § 2255 motion
if the issue was not presented on direct appeal from the
conviction.” Jennings v. United States, 696
F.3d 759, 762 (8th Cir. 2012). “Where a defendant has
procedurally defaulted a claim by failing to raise it on
direct review, the claim may be raised in habeas only if the
defendant can ...