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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANDRES BARBOSA-GIL, No. 29731-177, §

Defendant-Movant, §

§

v. § No. 3:03-CR-0044-L

§(No. 3:05-CV-0509-L)

UNITED STATES OF AMERICA, §

Plaintiff-Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in

implementation thereof, the subject causes have previously been referred to the United States

Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as

evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type Case: Anders Barbosa-Gil (“Movant” or “Barbosa-Gil”) filed a motion to set aside,

vacate, or correct his sentence pursuant to 28 U.S.C. § 2255.

Statement of the Case: On April 14, 2003, Movant plead guilty to one count of illegal

reentry after deportation without a plea agreement. On June 30, 2003, he was sentenced to 57

months in the penitentiary, three years of supervised release, and a special assessment of

$100.00. Barbosa-Gil appealed his conviction and on April 21, 2004, the Fifth Circuit affirmed

his conviction. United States v. Barbosa-Gil, 95 Fed. Appx. 612 (5th Cir. Apr. 21, 2004).

Movant filed this motion under 28 U.S.C. § 2255 on March 8, 2005. Pursuant to this

court’s order, Respondent filed an answer on May 19, 2005. Barbosa-Gil did not file a response.

Findings and Conclusions: In his first ground for relief, Movant asserts that his sentence

was improperly enhanced by a prior conviction not alleged in his indictment. The Fifth Circuit

 

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expressly rejected this assertion in the context of Barbosa-Gil’s direct appeal. Since this ground

was raised and rejected his direct appeal, Movant may not relitigate the issue in § 2255

proceedings. See, e.g., United States v. Kalish, 780 F.2d 506 (5th Cir.), cert. denied 476 U.S.

1118, 106 S.Ct. 1977 (1986); United States v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997).

Movant predicates his second ground for relief on United States v. Booker, __ U.S. __,

125 S.Ct. 738 (2005), which held that the United States Sentencing Guidelines were advisory

rather than mandatory. However, the Supreme Court made clear that the holding in Booker

applied only to cases on direct review. Id. at 769. Therefore, Barbosa-Gil cannot seek relief

based on the Booker decision in a § 2255 proceeding. See United States v. Garcia, 3:03-CR0268-L(01), 2005 WL 1489926 (N.D. Tex. Jun. 22, 2005).

RECOMMENDATION:

For the foregoing reasons it is recommended that the District Court deny the § 2255

motion filed by Andres Barbosa-Gil.

A copy of this recommendation will be served on Movant and on counsel for the

government.

Signed this 9th day of August, 2005. 

 

 __________________________

Wm. F. Sanderson, Jr.

United States Magistrate Judge 

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten (10) days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir.

1996)(en banc), a party’s failure to file written objections to these proposed findings of fact and

conclusions of law within such ten (10) day period may bar a de novo determination by the

district judge of any finding of fact and conclusion of law and shall bar such party, except upon

grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court. 

 

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