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Jimenez-Gomez v. United States

United States District Court, M.D. Alabama, Eastern Division

January 13, 2017

JOSE HUMBERTO JIMENEZ-GOMEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE.

         On November 25, 2014, petitioner Jose Humberto Jimenez-Gomez (“Jimenez-Gomez”) filed a motion under 28 U.S.C. § 2255 challenging the sentence imposed by this court upon revocation of his supervised release. Doc. No. 1.[1] This court entered an order directing Jimenez-Gomez to file a supplement to his § 2255 motion clarifying his claims. Doc. No. 2. Jimenez-Gomez filed a supplement to the § 2255 motion on December 30, 2014 (Doc. No. 3), and filed a second supplement on February 17, 2015 (Doc. No. 7). The Government filed its response to the § 2255 motion on May 5, 2015. Doc. No 11. After careful consideration of the § 2255 motion, the facts of the case, and the governing law, the court concludes that the motion should be denied without an evidentiary hearing. See Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.

         I. BACKGROUND

         On September 9, 2013, Jimenez-Gomez, who is a citizen of Mexico, pled guilty in this court to illegal reentry after being deported from the United States, in violation of 8 U.S.C. § 1326(a). See Case No. 3:13cr112-MEF, Doc. Nos. 22 & 51. On January 2, 2014, the court sentenced Jimenez-Gomez to time served and one year of supervised release. Id., Doc. Nos. 34 & 50. On January 31, 2014, Jimenez-Gomez was deported to Mexico.

         On May 13, 2014, U.S. Border Patrol agents encountered Jimenez-Gomez near Andrade, California. See Doc. No. 11-4 at 2-3. Jimenez-Gomez was arrested after the agents determined he was a Mexican citizen and illegally in the United States. Id. On May 15, 2014, in Case No. 14-15196M (S.D. Cal.), Jimenez-Gomez pled guilty in the United States District Court for Southern District of California to entering the United States at a time or place other than as designated by immigration officers, in violation of 8 U.S.C. § 1325(a)(1). See Doc. No. 11-5. The California federal district court sentenced Jimenez-Gomez to 180 days' imprisonment. Id. at 2.

         After his sentencing in Case No. 14-15196M (S.D. Cal.), Jimenez-Gomez was returned to the Middle District of Alabama to answer charges that he violated the terms of his supervised release in Case No. 3:13cr112-MEF by committing a new offense. This charge was predicated upon his conviction in Case No. 14-15196M (S.D. Cal.). See Doc. No. 11-6. On July 10, 2014, Jimenez-Gomez pled guilty in this court to violating a term of his supervised release. Doc. No. 11-7; see also Case No. 3:13cr112-MEF, Doc. Nos. 48, 49 & 52. This court then sentenced Jimenez-Gomez to 10 months' imprisonment to be served consecutively to the 180-day term of imprisonment imposed by the California federal district court in Case No. 14-15196M (S.D. Cal.). Doc. No. 11-7; see also Case No. 3:13cr112-MEF, Doc. Nos. 49 & 52. Jimenez-Gomez did not appeal the revocation of his supervised release or the sentence this court imposed for violating his supervised release. Jimenez-Gomez filed this § 2255 motion on November 25, 2014, requesting that this court revise the sentence imposed for his supervised release violation to run concurrently with the sentence imposed by the California federal court in Case No. 14-15196M (S.D. Cal.). See Doc. No. 1 at 4.

         II. DISCUSSION

         Ordinarily, if an available claim is not advanced on direct appeal, it is deemed procedurally defaulted in a § 2255 proceeding. See Mills v. United States, 36 F.3d 1052, 1055-56 (11th Cir. 1994); Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). Because Jimenez-Gomez did not appeal the revocation of his supervised release or the sentence this court imposed for violating his supervised release, he has procedurally defaulted any claim whereby he might seek, through a § 2255 motion, to have this court revise his sentence for his supervised release violation to run concurrently with the sentence imposed in his California federal case.

         A procedural default bars consideration of the merits of a claim presented in a § 2255 motion unless a petitioner “can show cause excusing his failure to raise the issues previously and actual prejudice resulting from the errors.” Cross v. United States, 893 F.2d 1287, 1289 (11th Cir. 1990); see also Greene, 880 F.2d at 1305. If a petitioner fails to show cause and prejudice, a procedural default will not preclude a federal court from considering the petitioner's claim where he can show that the court's failure to address his claim would result in a “fundamental miscarriage of justice.” Murray v. Carrier, 477 U.S. 478, 496 (1986).

         Jimenez-Gomez has not demonstrated cause why he did not raise his claim in an appeal, nor has he demonstrated that he was prejudiced. Likewise, he does not show that the court's failure to address his claim would result in a fundamental miscarriage of justice. Therefore, his claim is procedurally defaulted and is not subject to review.

         In any event, this court's imposition of a consecutive sentence for Jimenez-Gomez's supervised release violation was in accord with the governing statutes and applicable Policy Statement of the Sentencing Guidelines. Title 18 U.S.C. § 3584, which governs the imposition of multiple sentences of imprisonment, provides that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” 18 U.S.C. §3584(a). A district court has discretion to impose a sentence upon revocation of supervised release consecutively to other sentences being served by the defendant. See United States v. Quinones, 136 F.3d 1293, 1294-95 (11th Cir. 1998) (holding that 18 U.S.C. § 3584(a) applies to revocation sentences). In order to decide whether to impose consecutive or concurrent sentences, the court must consider the factors in 18 U.S.C. § 3553(a). See United States v. Monrroy, 518 Fed.App'x 723, 725 (11th Cir. 2013) (citing 18 U.S.C. § 3584(b)).

         The Sentencing Guidelines recommend consecutive sentences when dealing with revocation of supervised release. Section 7B1.3(f) of the Guidelines reads:

Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is ...

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