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Hernandez-Arellano v. United States

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

August 8, 2018

LUIS HERNANDEZ-ARELLANO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          SUSAN RUSS WALKER UNITED STATES MAGISTRATE JUDGE

         This case is before the court on Luis Hernandez-Arellano's construed motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 2. For the reasons that follow, the magistrate judge finds Hernandez-Arellano's § 2255 motion should be denied and this case dismissed with prejudice.

         I. BACKGROUND

         On November 30, 2010, Hernandez-Arellano pleaded guilty to one count of illegal reentry after his 2009 deportation following his 2006 conviction for an aggravated felony (conspiracy to distribute cocaine), in violation of 8 U.S.C. § 1326(a) & (b)(2). Hernandez-Arellano's presentence investigation report (“PSI”) noted that his 2006 conviction for conspiracy to distribute cocaine triggered a 16-level specific offense characteristic enhancement to his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i).[1] See PSI at ¶ 7; Doc. No. 19 at 2; Doc. 19-8 at 23-24. Hernandez-Arellano's calculated Sentencing Guidelines range was 77 to 96 months. See PSI at ¶ 49; Doc. 19-8 at 22. On March 23, 2011, the district court imposed a sentence of 120 months' imprisonment, which was the product of an upward variance based on Hernandez-Arellano's extensive criminal history. Doc. 19-8 at 29. On the same date, in a consolidated hearing, the district court imposed a consecutive 24-month revocation sentence for petitioner's violating the terms of his supervised release in his conspiracy-to-distribute-cocaine case. Id. at 36.

         Hernandez-Arellano took no direct appeal from his illegal reentry conviction (or his revocation sentence). However, after filing a § 2255 motion in March 2012, he was granted an out-of-time appeal when the court determined that his counsel had failed to file an appeal after he requested that one be filed. See Civil Action No. 1:12cv284-WKW. On June 13, 2012, the district court entered an amended judgment, resentencing Hernandez-Arellano to the same 120-month term for illegal reentry. See Doc. No. 31 in No. 1:09cr170-WKW.

         Hernandez-Arellano subsequently filed an appeal arguing that the district court abused its discretion in imposing a 120-month sentence for illegal reentry because it was greater than necessary under 18 U.S.C. § 3553(a). Hernandez-Arellano also argued that his 24-month revocation sentence was substantively unreasonable.[2]

         On May 9, 2013, the Eleventh Circuit issued an unpublished opinion rejecting Hernandez-Arellano's claims for relief and affirming his sentences. United States v. Hernandez-Arellano, 518 Fed.Appx. 796');">518 Fed.Appx. 796 (11th Cir. 2013).

         On about June 22 2016, Hernandez-Arellano, acting pro se at the time, filed a motion seeking resentencing in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), and requesting that this court appoint counsel to “prepare and file” his Johnson claim. Doc. No. 2. Hernandez-Arellano's pro se motion did not explain why he believed Johnson entitled him to resentencing.

         This court granted Hernandez-Arellano's motion to appoint counsel and appointed the Federal Defender to represent him in any attempt to obtain relief under Johnson. Doc. No. 3. Because Hernandez-Arellano's motion asserted a claim challenging his sentence, this court found it should be treated as a motion for relief under 28 U.S.C. § 2255. A “Castro order” was entered notifying Hernandez-Arellano that his motion was recharacterized as a § 2255 motion and warning him that this meant any subsequent § 2255 motions would be subject to the restrictions on “second or successive” motions.[3] Doc. No. 4. The Castro order also gave Hernandez-Arellano an opportunity to withdraw his motion, or amend it so it contained all the § 2255 claims he wanted to assert. Id.

         Hernandez-Arellano filed no response to the court's Castro order and did not seek to amend his original motion. Thus, this case is before the court solely on the Johnson claim in his construed § 2255 motion. In reply to the government's motion to dismiss this action, the Federal Defender clarifies that, through his § 2255 motion (and thus by his Johnson claim), Hernandez-Arellano challenges his combined 144-month sentence resulting from his 120-month sentence for illegal reentry (in No. 1:09cr170-WKW) and the consecutive 24-month revocation sentence (in No. 2:06-cr-147-WKW). Doc. No. 16. As indicated below, however, Hernandez-Arellano has demonstrated no basis for relief under Johnson.

         II. DISCUSSION

         Hernandez-Arellano seeks resentencing in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Doc. No. 2. However, he doesn't say why Johnson entitles him to resentencing, and he presents no argument whatsoever suggesting how Johnson applies to any aspect of his sentence.

         In Johnson, the Supreme Court held that the Armed Career Criminal Act's (“ACCA”) residual clause-which included in the definition of “violent felony” any offense that “otherwise involves conduct that presents a serious potential rise of physical injury to another”-was unconstitutionally vague.[4] 135 S.Ct. at 2557. Based on that holding, the Court concluded that “imposing an increased [ACCA] sentence under the residual clause … violates the Constitution's guarantee of due process.” Id. at 2563. In Welch, the Supreme Court held that Johnson applies retroactively to cases on collateral review. See 136 S.Ct. at 1268. As a result of Johnson and Welch, inmates sentenced as armed career criminals based on prior convictions deemed violent felonies under the ACCA's residual clause were allowed to challenge their sentences through § 2255 motions.

         Recently, in Beckles v. United States, 137 S.Ct. 886 (2017), the Supreme Court held that the Sentencing Guidelines are not subject to vagueness challenges like the one applied to the ACCA's residual clause in Johnson. 137 S.Ct. at 890. The Beckles court reasoned that, “[u]nlike the ACCA … the advisory [Sentencing] Guidelines do not fix the permissible range… . [T]hey merely guide the exercise of a court's discretion in choosing an appropriate sentence within a statutory range.” Id. at 892. The Court further reasoned that, unlike the ACCA, the Sentencing ...


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