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Acosta-Perez v. United States

United States District Court, D. Utah, Central Division

July 19, 2017

JUAN CARLOS ACOSTA-PEREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 2:15-cr-00508-DN

          MEMORANDUM DECISION AND ORDER DENYING AND DISMISSING § 2255 MOTION

          David Nuffer, District Judge

         Petitioner Juan Carlos Acosta-Perez seeks to vacate and correct his sentence under 28 U.S.C. § 2255.[1] He argues that the statute under which he was convicted, 8 U.S.C. § 1326, and the United States Sentencing Guideline (“USSG”) that applied to enhance his sentence, USSG § 2L1.2(b)(1)(A)(i), are unconstitutionally vague.[2] And maintains that the use of the statute and guideline at his sentencing violated his right to due process and require his resentencing.[3] Because it plainly appears that Mr. Acosta-Perez is entitled to no relief, his § 2255 Motion[4] is DENIED and DISMISSED with prejudice.

         BACKGROUND

         On September 8, 2015, the government filed an information charging Mr. Acosta-Perez with one count of Reentry of a Previously Removed Alien, a violation of 8 U.S.C. 1326.[5] The government also filed a notice of sentencing enhancement based on Mr. Acosta-Perez's prior conviction for Possession of Methamphetamine with Intent to Distribute, a violation of 21 U.S.C. § 841(a)(1).[6]

         Pursuant to a plea agreement with the government, Mr. Acosta-Perez pleaded guilty to the charge of Reentry of a Previously Removed Alien on November 17, 2015.[7] The plea agreement contained the following waiver of collateral attack rights:

I also knowingly, voluntarily and expressly waive my right to challenge my sentence, and the manner in which the sentence is determined, in any collateral review motion, writ or other procedure, including by not limited to a motion brought under Title 28, United States Code, Section 2255, except on the basis of ineffective assistance of counsel.[8]

         Mr. Acosta-Perez was sentenced that same day to a prison term of 37 months and a 24-month term of supervised release.[9]

         On August 24, 2016, Mr. Acosta-Perez filed a § 2255 Motion[10] arguing that the use of an unconstitutionally vague statute and sentencing guideline at his sentencing violated his right to due process and require his resentencing.[11] Mr. Acosta-Perez's argument relied on two United States Supreme Court decisions:

Johnson v. United States, [12] which held that the residual clause of the Armed Career Criminal Act's (“ACCA”) definition of “violent felony” is unconstitutionally vague; and
Welch v. United States, [13] which held that Johnson announced a new substantive rule that has retroactive effect on collateral review.

         Through his § 2255 Motion, Mr. Acosta-Perez also sought to preserve claims[14] under:

Hurst v. Florida, [15] which held that a sentencing scheme that requires a judge, as opposed to a jury, to find the existence of an aggravating circumstance is an unconstitutional violation the Sixth Amendment's right to an impartial jury; and
Molina-Martinez v. United States, [16] which held that a defendant may rely on that fact that sentence was imposed under an incorrect guideline range to show a reasonable probability that a different sentence would be imposed under the correct guideline range.

         Subsequent to the filing of Mr. Acosta-Perez's § 2255 Motion, the Tenth Circuit Court of Appeals issued its decision in United States v. Frazier-Lefear[17] and the United States Supreme Court issued its decision in Beckles v. United States.[18] Mr. Acosta-Perez was given notice of the Frazier-Lefear and Beckles decisions and encouraged to review and determine their applicability to his § 2255 Motion.[19] He was also directed to file a status report by July 7, 2017, indicating whether he requests the case be voluntarily dismissed pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, or for it to proceed to a merits review.[20]

         To date, Mr. Acosta-Perez has not filed the ordered status report. Therefore, a merits review of Mr. Acosta-Perez's § 2255 Motion will proceed.

         DISCUSSION

         For all motions brought under 28 U.S.C. § 2255, “[u]nless the motion and files and records of the case conclusively show that the [movant] is entitled to no relief, ” notice of the motion must be provided to the government and a hearing must be held.[21] However, “[i]f it plainly appears from the [§ 2255] motion, any attached exhibits, and the record of prior proceedings that the moving party is not ...


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