HAB55\R&R\LOPEZ-TORREZ.DNY-BOOKER:3

2:05-CV-0109

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA §

§

v. § 2:03-CR-0114 (01)

§

HILARIO LOPEZ-TORREZ §

REPORT AND RECOMMENDATION

TO DENY MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE 

On April 8, 2005, defendant HILARIO LOPEZ-TORREZ 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 46-month sentence assessed on or about April 2, 2004 after his

conviction, pursuant to a guilty plea, for the offense of illegal reentry after deportation following

conviction for a felony. For the reasons set forth below, defendant is not entitled to relief and

this motion should be denied. 

I.

MERITS

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

decision in United States v. Booker, ____ U.S. ____, 125 S.Ct. 738, 160 L.Ed.2d 621, 73

U.S.L.W. 4056 (January 12, 2005). In Booker, the Supreme Court extended the rule announced

in the prior decisions of Apprendi v. New Jersey; 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), and Blakely v. Washington, ____ U.S. ____, 124 S.Ct. 2531, 159 L.Ed.2d 403, 72 

 

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1

This analysis assumes for purposes of argument, that defendant LOPEZ-TORREZ even has a possible Booker claim. 

Since LOPEZ-TORREZ’s sentence enhancement was based upon a prior conviction, Booker would arguably not apply, even if it

were retroactive.

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U.S.L.W. 4546 (June 24, 2004), to the federal Sentencing Guidelines. The rule, essentially held

that, 

[P]ursuant to the Sixth Amendment, any fact, other than the fact of a prior

conviction, “which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.

Ct. at 756. A different majority of the Court then excised certain statutory

provisions that made the Guidelines mandatory, thereby rendering the Guidelines

advisory only. Id. at 756-57. 

In re Elwood, No. 05-30269 at 2, April 28, 2005 (5th Cir. 2005) citing Booker. Defendant

Elwood, just as LOPEZ-TORREZ in the instant case, alleged that, pursuant to Booker, the

district court’s application of the Guidelines in determining his sentence violated his Sixth

Amendment rights. The Fifth Circuit has held, however, that the United States Supreme Court

did not make Booker retroactive to cases on collateral review. In re Elwood, No. 05-30269 at 3.

Therefore, under the law of this circuit, defendant’s claim that his sentence, assessed

under the federal Sentencing Guidelines, is unconstitutional based upon Booker and, thus, should

be vacated, is foreclosed. Such a claim is not cognizable in a section 2255 action.1 

To the extent defendant claims ineffective assistance of counsel, such claim is without

merit. Defendant has properly set forth the standard used to evaluate such claims, i.e. the

analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). However, defendant’s claim that counsel misled him about the state’s burden and about

his appeal rights, are nothing more than conclusory allegations which are not fact specific to

defendant’s case. The Court notes that throughout the proceedings in this case, defendant did

 

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not appear to be fluent in English and utilized an interpreter to communicate with the Court. 

However, the brief submitted with his motion to vacate contains a long history of caselaw

written in English, is not specific to defendant’s case, and appears to have been prepared by

someone other than defendant. For example, the brief cites, among other things, defendant

waived his right of appeal. Yet the practice in this Court prohibits such a waiver. Defendant has

not stated with specificity what he alleges counsel did or did not do to deprive defendant of his

constitutional right to effective assistance of counsel. He has not raised sufficient allegations in

this regard and he clearly has not demonstrated prejudice. Assuming arguendo defendant claims

his counsel should have advised him of the law as set forth in Apprendi v. New Jersey, 530 U.S.

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), defendant’s claim is without merit. Neither

Apprendi nor Booker control. Defendant’s case is controlled by Almendarez-Torres v. United

States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Defendant has failed to show that

Almendarez-Torres does not control. Defendant’s claim should be denied.

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

HILARIO LOPEZ-TORREZ 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 defendant by certified mail, return receipt requested, and to each attorney of 

 

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record by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 26th day of May 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

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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