HAB55/R&R/JUAREZ-AGUILAR.DSMprem2:3

(2:05-CV-0153)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA §

§

v. § 2:03-CR-0105 (01)

§

JUAN ESTEBAN JUAREZ-AGUILAR §

REPORT AND RECOMMENDATION TO DISMISS DEFENDANT’S

MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Defendant has filed with this Court a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside

or Correct Sentence by a Person in Federal Custody. For the reasons hereinafter expressed, the

undersigned United States Magistrate Judge is of the opinion defendant’s motion to vacate, set aside

or correct sentence should be DISMISSED.

I.

PROCEDURAL HISTORY

Defendant was convicted, upon his plea of guilty, of the offense of illegal reentry after

deportation in violation of 8 U.S.C. § 1326(b)(2). Defendant was sentenced to an 87-month term

of imprisonment and a 3-year term of supervised release, and was assessed a $100 special

assessment. Defendant directly appealed his conviction or sentence to the United States Court of

Appeals for the Fifth Circuit. On May 18, 2004, defendant’s counsel filed an Anders brief on

defendant’s behalf. The same date, counsel also filed a motion to withdraw. On February 22, 2005,

the Court of Appeals ordered the motion to withdraw be held in abeyance and ordered counsel to

file a supplemental Anders brief therein addressing the recent decision of United States v. Booker,

____ U.S. ____, 125 S.Ct. 738, 160 L.Ed.2d 621, 73 U.S.L.W. 4056 (January 12, 2005). Counsel

 

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filed such supplemental brief on March 25, 2005, no further activity has occurred in the case since

that date, and the case remains pending before the appellate court. On May 31, 2005, defendant

filed the instant Motion to Vacate, Set Aside or Correct Sentence.

II.

DEFENDANT’S ALLEGATIONS

In his motion to vacate, defendant contends his conviction and sentence were obtained in

violation of the Constitution and Laws of the United States because:

1. Defendant was denied effective assistance of counsel in that counsel did not

challenge “the 16-level enhancement provided by the Sentencing Guidelines

for Illegal Reentry after being deported for a felony conviction”; and

2. Defendant’s sentence is unconstitutional under Blakely v. Washington,

United States v. FanFan, and United States v. Booker

III.

PREMATURE MOTION

A criminal defendant may not collaterally attack his conviction until it has been affirmed on

direct appeal. Fassler v. United States, 858 F.2d 1016, 1019 (5th Cir. 1988) (citing Jones v. United

States, 453 F.2d 351, 352 (5th Cir. 1972). Here, defendant’s conviction has not yet been affirmed

on direct appeal. In fact, such appeal is currently pending before the Fifth Circuit. Defendant’s

motion to vacate should be dismissed as premature.

IV.

SECOND PREMATURE MOTION

Defendant has previously filed a motion to vacate on February 7, 2005 and such was

dismissed as premature March 1, 2005. The instant motion is the second filed by defendant while

his case is pending on appeal in the Fifth Circuit. This Court cannot consider any motion to vacate

until the Fifth Circuit has issued a decision affirming defendant’s conviction and sentence. Further,

 

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defendant is wasting the Court’s time by filing premature motions to vacate. Defendant is

admonished that such future filings may result in the imposition of sanctions. 

V.

RECOMMENDATION

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

District Judge that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by

a Person in Federal Custody filed by defendant JUAN ESTEBAN JUAREZ-AGUILAR be

DISMISSED.

V.

INSTRUCTIONS FOR SERVICE

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

Recommendation to defendant and each attorney of record by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 6th 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 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. 

 

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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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