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2:05-CV-0183

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA §

§

v. § 2:03-CR-0117 (01)

§

ROSALIO NAVARRETE MATA §

REPORT AND RECOMMENDATION

TO DENY MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE 

On June 24, 2005, defendant ROSALIO NAVARRETE MATA filed with this Court a

Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in

Federal Custody, wherein he challenges a 60-month sentence assessed on or about February 17,

2004 after his conviction, pursuant to a guilty plea, for the offense of illegal re-entry of an alien

after deportation. For the reasons set forth below, defendant is not entitled to relief and this

motion should be denied. 

I.

MERITS

Defendant first appears to challenge his sentence violated the United States Supreme

Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000). Defendant’s reliance on Apprendi is misplaced. In Apprendi the Court held that “[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

 

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doubt (emphasis supplied).” 530 U.S. at 490. 

Defendant’s sentence does not violate Apprendi. Defendant pleaded guilty to Count One

of the indictment charging violations of 8 U.S.C. §§ 1326(a)(1), (b)(2) and 6 U.S.C. §§ 202(3),

204(4), and 557, Illegal Reentry after Deportation. The maximum punishment that could have

been imposed was twenty (20) years. Pursuant to the terms of the “Plea Agreement,” defendant

was informed of the maximum punishment, and he and his attorney both appeared in person and

signed the “Plea Agreement.” Defendant’s sentence of 60 months did not exceed the statutory

maximum of twenty (20) years. No violation of Apprendi occurred. 

Defendant next challenges his sentence based upon the recent United States Supreme

Court decision in Blakely v. Washington, ____ U.S. ____, 124 S.Ct. 2531, 159 L.Ed.2d 403, 72

U.S.L.W. 4546 (June 24, 2004). In Blakely, the Supreme Court considered a state’s sentencing

procedure which allowed a state judge to impose a sentence above the offense’s statutory

maximum punishment upon the judge finding aggravating factors that justify such an upward

departure. In Blakely, the state judge determined such factors existed and sentenced the

defendant to more than three (3) years above the statutory maximum. The Court found the facts

supporting the state judge’s finding were neither admitted by petitioner nor found by a jury. 

Noting the jury’s verdict alone did not authorize the sentence, the Supreme Court found the

state’s sentencing procedure did not comply with the Sixth Amendment right to trial by jury.

In United States v. Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), the Fifth Circuit

considered the impact of Blakely on the federal Sentencing Guidelines and held that Blakely does

not extend, or apply, to the federal Sentencing Guidelines. See also United States v. Owen, 

2004 WL 1982394, *1 (5th Cir. Sept. 7, 2004); United States v. Cuellar, 2004 WL 1854504, *1

 

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(5th Cir. Aug. 18, 2004). Therefore, under the law of this circuit, defendant’s claim that his

sentence, assessed under the federal Sentencing Guidelines, is unconstitutional based upon

Blakely and, thus, should be vacated, is foreclosed by binding precedent. Such a claim is not

cognizable in a section 2255 action absent an on-point en banc decision from the Fifth Circuit or

an intervening ruling from the United States Supreme Court.

II.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that the motion to vacate, correct or set aside sentence filed by defendant

ROSALIO NAVARRETE MATA be DENIED.

III.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner and to counsel of record for respondent by the most efficient

means available.

IT IS SO RECOMMENDED. 

ENTERED this 28th day of June 2005.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

 

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page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). 

 

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