IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA §

§

v. § 2:04-CR-0097 (01)

§

JOSE SALAS-RUEDA §

REPORT AND RECOMMENDATION

TO DENY MOTION UNDER 28 U.S.C. § 2255

TO VACATE, SET ASIDE, OR CORRECT SENTENCE

BY A PERSON IN FEDERAL CUSTODY

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

Aside, or Correct Sentence by a Person in Federal Custody. By his motion, defendant challenges

his May 25, 2005 conviction, pursuant to a guilty plea, of the offense of illegal re-entry after

deportation, and his resultant sentence of 70 months confinement in a federal correctional

facility. For the following reasons, it is the opinion of the undersigned United States Magistrate

Judge that defendant’s motion to vacate be DENIED.

In his motion to vacate, defendant states the following grounds on which he claims he is

being held unlawfully:

1. he was denied effective assistance of counsel in that counsel:

a. did not object to the Presentence Investigation Report;

b. failed to file an appeal; 

c. failed to explain to defendant the charges against defendant; and

d. failed to “spend time” with defendant before and after trial.

2. “Booker & Blakely Supreme Court decisions ruling the Guidelines

unconstitutional”; and

3. “Almandarez-Torres Supreme Court recognizes that was wrongly ruled.”

In his motion, defendant does not summarize or allege any facts supporting each ground.

 

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On September 28, 2005, the undersigned ordered defendant to file a supplemental

pleading stating concisely every ground on which he claims he is being held in violation of the

Constitution of the United States, summarizing the facts supporting each ground, and explaining

how the facts support his claims of constitutional error. On October 14, 2005, defendant filed

correspondence to the Court wherein he advised he had not been able to reach his attorney to

assist him in explaining how the facts supported each of his stated grounds, and that he was not

able to explain the facts because he did not have the appropriate transcripts or legal

documentation. As of this date, defendant has not supplemented his original motion to vacate.

The undersigned construes pro se section 2255 petitions liberally. "At the same time,

however, mere conclusory allegations on a critical issue are insufficient to raise a constitutional

issue." United States v. Pineda, 988 F.2d 22 (5th Cir. 1993) (citing United States v. Woods, 870

F.2d 285, 288 n. 3 (5th Cir.1989)). To the extent defendant’s claims state cognizable grounds

for relief, his claims are conclusory, speculative, and wholly unsupported by any probative

evidence or affidavits in the record. Defendant has not substantiated his claims of ineffective

assistance by argument or factual recitations. Defendant’s vague references to the alleged

violations of his constitutional rights are insufficient to raise such issues. Defendant has not

properly raised his claims before this Court, nor has he satisfied his burden of demonstrating his

confinement is in violation of the Constitution, laws or treaties of the United States.

Even if this Court were to liberally construe defendant’s second ground to argue that his

sentence violates the Constitution pursuant to 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

argument would fail. In Apprendi, the Supreme Court held the Constitution requires that any

fact which increases the penalty for a crime beyond the prescribed statutory maximum, other

 

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than the fact of a prior conviction, must be submitted to the factfinder and proved beyond a

reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2362-2363. Here, defendant does not

identify which “fact” he contends should have been, but was not, submitted to the factfinder, nor

does he argue how the Court’s finding of such “fact” increased his penalty beyond the statutory

maximum sentence for the offense. In the Presentence Report, the only increase in defendant’s

base offense level was a 16-level increase for defendant having been previously deported after a

conviction for an aggravated felony, i.e., an alien smuggling offense. Consequently, this is the

only “fact” defendant can be arguing resulted in a violation of Apprendi.

Apprendi is applicable only to cases where the penalty for the crime exceeded the

prescribed statutory maximum due to facts other than a prior conviction. Here, defendant

pleaded guilty to and was convicted of illegal re-entry after deportation in violation of 8U.S.C.

1326(a) and 6 U.S.C. § 202(3)(4). Pursuant to 8 U.S.C. § 1326(b)(2), the maximum punishment

for a defendant, whose removal was subsequent to a conviction for commission of an aggravated

felony, is a term of imprisonment not to exceed twenty (20) years. The trial court assessed

defendant’s punishment at 70 months, a length which is clearly under the statutory maximum of

20-years imprisonment. Apprendi is not applicable to this case.

Further, the fact of defendant’s previous deportation following his conviction for the

commission of an aggravated felony was alleged in the indictment and presented to the

factfinder, in this case the Court, and proven beyond a reasonable doubt by defendant’s verified

and signed plea agreement and factual resume. No Apprendi issue is presented in this case. 

If the Court also construes defendant’s second ground as an argument that his sentence is

in violation of the holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d

403 (2004), defendant’s claim is still without merit. In Blakely, the defendant pled guilty to an

 

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offense which carried a “standard range” of 49-53 months imprisonment. The state’s sentencing

procedure, however, allowed a state judge to impose a sentence above the offense’s maximum

punishment upon the judge finding aggravating factors that justified such an upward departure. 

The state judge in Blakely determined such factors existed in and sentenced the defendant to

more than three (3) years above the maximum sentence established by the standard range. 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.

Here, defendant’s sentence did not exceed the maximum guideline range of punishment

of 87 months or the statutory maximum sentence of 20-years authorized for an offense of illegal

re-entry after deportation. Nor did the District Judge make any additional determination of facts

beyond those to which defendant admitted guilt. Defendant’s claim would be without merit.

If defendant’s second ground is, alternatively, construed to be a claim that defendant’s

sentence is in violation of the holding in United States v. Booker, U.S. , 125 S.Ct. 738, 160

L.Ed.2d 621 (January 12, 2005), defendant’s claim is still without merit. In Booker, the Supreme

Court extended the rules announced in the prior decisions of Apprendi and Blakely to the federal

Sentencing Guidelines. Specifically, Booker held that any fact (other than 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. Again, the fact of defendant’s previous deportation following

his conviction for the commission of an aggravated felony, is the only “fact” which increased

defendant’s penalty. This prior conviction is a “fact” specifically excluded by the Booker court. 

 

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1

The Court notes that on December 8, 2005, the United States Court of Appeals for the Fifth Circuit issued a decision

in United States v. Gentry, F.3d , 2005 WL 3317891 (Dec. 8, 2005), holding that Booker does not apply retroactively on

collateral review to a federal prisoner’s initial 28 U.S.C. § 2255 motion.

HAB55\R&R\SALAS-RUEDA.CONCL:2 5

Further, this “fact” was alleged in the indictment, admitted by defendant, and established by

defendant’s plea of guilty. There is no Booker violation in this case.1

If defendant’s third ground is liberally construed to be a claim that defendant’s sentence

is in violation of the holding in Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118

S.Ct. 1219, 140 L.Ed.2d 350 (1998), defendant is not be entitled to relief. In AlmendarezTorres, the defendant was also charged by indictment with violating 8 U.S.C. § 1326(a) which

makes it a crime for a deported alien to return to the United States without special permission

and authorizes a maximum prison term of two years. The indictment did not further allege the

initial "deportation was subsequent to a conviction for commission of an aggravated felony," the

language from 8 U.S.C. § 1326(b)(2) which authorizes a maximum prison term of 20 years for

such an alien. The defendant pleaded guilty to violating section 1326, admitting that he had been

deported, that he had unlawfully returned, and that the earlier deportation had taken place

pursuant to three convictions for aggravated felonies. The District Court sentenced him under

the applicable Sentencing Guideline range to 85 months' imprisonment, rejecting his argument

that, since his indictment failed to mention his aggravated felony convictions, the court could not

sentence him to more than the maximum imprisonment authorized by § 1326(a). The Fifth

Circuit also rejected his argument, holding that subsection (b)(2) is a penalty provision which

simply permits the imposition of a higher sentence when the unlawfully returning alien also has

a record of prior convictions. The United States Supreme Court agreed, holding that subsection

(b)(2) is a penalty provision, which simply authorizes an enhanced sentence, and as it does not

create a separate crime, the Government is not required to charge the fact of an earlier conviction

 

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in the indictment. 

The indictment in this case alleged defendant’s previous deportation following his

conviction for the commission of an aggravated felony and such allegation was presented to the

Court and proven beyond a reasonable doubt by defendant’s verified and signed plea agreement

and factual resume. Consequently, Almendarez-Torres is not applicable to this case.

RECOMMENDATION

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

States District Judge that the Motion to Vacate, Set Aside or Correct Sentence by a Person in

Federal Custody filed by defendant JOSE SALAS-RUEDA be, in all things, DENIED. 

INSTRUCTIONS FOR SERVICE

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

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

available.

IT IS SO RECOMMENDED. 

ENTERED this 28th day of December 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

 

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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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