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Penaloza-Trejo v. United States

United States District Court, D. South Dakota, Western Division

July 12, 2019

MARIO PENALOZA-TREJO, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE

         INTRODUCTION

         On 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 19).[1] 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.[2] 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.

         DISCUSSION

         I. Facts & Procedural History

         On July 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 & 26).

         The 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.

         Probation 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[.]”[3] 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.

         Mr. 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.

         The 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).

         On 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. 1-2).

         II. Legal Standard

         The 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.

         “Habeas 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 ...


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