Free Order on Motion to Vacate (2255) - District Court of Colorado - Colorado

Case 1:04-cr-00410-MSK

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Filed 04/21/2008

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FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Criminal Action No. 04-cr-00410-MSK Civil Action. No. 05-cv-01643-MSK UNITED STATES OF AMERICA, Plaintiff - Respondent, v. VINCENTE SANCHEZ-LOPEZ, Defendant - Petitioner. ______________________________________________________________________________ OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE ______________________________________________________________________________ THIS MATTER comes before the Court pursuant to the Defendant-Petitioner's Motion to Vacate Sentence (# 41) pursuant to 28 U.S.C. § 2255, and the Government's response (# 44). On September 22, 2004, the Defendant was indicted (# 1) on a single count of unlawful re-entry by a deported alien in violation of 8 U.S.C. § 1326(a) and (b)(2). On November 16, 2004, the Defendant filed a Notice of Disposition (# 20), and on December 27, 2004, entered a plea of guilty (# 30) to the charged offense. On April 4, 2005, the Defendant was sentenced (# 37) to a term of 57 months imprisonment. The Defendant did not file a direct appeal of his sentence. On August 24, 2005, the Defendant filed the instant Motion to Vacate Sentence (# 41) pursuant to 28 U.S.C. § 2255. Construed liberally in light of the Defendant's pro se status, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991), the Defendant's motion contends that: (i) the Court's reliance upon the Sentencing 1

Case 1:04-cr-00410-MSK

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Guidelines in crafting his sentence was improper, in light of the subsequent decision by the Supreme Court in U.S. v. Booker, 543 U.S. 220, 265 (2005), that rendered the guidelines merely advisory; (ii) that his sentence exceeds the statutory maximum permitted for his crime, without supporting jury findings of fact, in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)1; and (iii) that although the Defendant failed to preserve this issue at the time of sentencing, it is reviewable on a "plain error" basis. In response (# 44), the Government argues: (i) that notwithstanding Almendarez-Torres, the Defendant's prior convictions were alleged in the Indictment, and were admitted by the Defendant in his Plea Agreement (# 26); (ii) that this Court is bound to follow AlmendarezTorres, so long as it remains good law; (iii) that the Defendant waived any right to have a jury determine the facts relating to his sentence; and (iv) that the Defendant's sentence was imposed upon his consent, pursuant to Fed. R. Crim. P. 11(c)(1)(C), and his agreement to be bound by the Sentencing Guidelines is thus not affected by Booker. The Government's arguments are well-taken. The Plea Agreement specifically states: "The defendant agrees to have his sentence determined by the applicable United States Sentencing Commission Guidelines Manual. The defendant waives any right to have facts that determine his The crux of this argument is that the Defendant believes that Apprendi's requirement of jury findings before a sentence in excess of a statutory maximum can be imposed calls into question the Supreme Court's prior decision in Almendarez-Torres v. U.S., 523 U.S. 224 (1998). In Almendarez-Torres, the Supreme Court held that 8 U.S.C. § 1326(b)(2), providing for a maximum 20-year sentence for aliens who unlawfully re-enter the U.S. after conviction of an aggravated felony, constitutes a "sentencing factor," not a separate crime, and thus, the fact of the prior conviction need not be alleged in the indictment or found by a jury. The Defendant argues that, were it presented with this issue again in light of Apprendi and its progeny, the Supreme Court would likely vacate Almendarez-Torres and treat the fact of a prior conviction as an element that must be plead and proved before a sentence in excess of 8 U.S.C. § 1326(a) could be imposed. 2
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offense level under the guidelines alleged in an indictment or found by a jury." In addition, the Plea Agreement sets forth that "The parties stipulate, pursuant to Fed. R. Crim. Pro. 11(c)(1)(C)," that "a sentence of confinement to the lowest end of defendant's resulting guideline range" is appropriate.2 The Defendant agreed that he had previously been convicted of unlawful possession of a controlled substance in 1997, as well as convicted of attempt to distribute cocaine in 1995. The Plea Agreement indicated that, based on tentative calculations, the Defendant faced a likely Guideline range of 57-71 months. These facts were set forth in a written Plea Agreement that the Defendant admitted he reviewed and signed before entering his plea of guilty, and the Defendant was ultimately sentenced, consistent with the parties' agreement, to a sentence within his anticipated Guideline range.3 In light of these facts, extended consideration of the Defendant's various arguments is unnecessary. On essentially identical facts, the 10th Circuit has held that where a defendant receives the sentence he agreed to under Rule 11(c)(1)(C), that sentence arises under the parties' agreement, not the Sentencing Guidelines, and thus, is not affected by Booker. U.S. v. Silva, 413 U.S. 1283, 1284 (10th Cir. 2005). That same outcome applies with equal force here. The Defendant expressly waived any rights he might have had under Apprendi to have the fact of his

The Plea Agreement did appear to contemplate the eventual arrival of Booker, stating that "If the United States Sentencing Guidelines are found to be unconstitutional, Mr. SanchezLopez may ask the Court for an alternate sentence in lieu of his sentencing under the United States Sentencing Guideline," and that such a sentence would not exceed the maximum sentence contemplated by the Guidelines. Even construed liberally, the Court does not read the Defendant's instant motion to be invoking this provision of the Plea Agreement. The Offense Level and Criminal History found by the Probation Department in the Presentence Report is precisely the same as that anticipated by the parties in the Plea Agreement. The Defendant was not subject to any unexpected adjustments to either calculation. 3
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prior conviction pled in the Indictment or found by a jury (which is not to say that the Court finds any such right in Apprendi or its progeny). In any event, the conviction was pled in the Indictment and was admitted by the Defendant as part of the plea agreement. See Booker, 543 U.S. at 244 (summarizing Apprendi as requiring that "[a]ny fact . . . which is necessary to support a sentence exceeding the maximum . . . must be admitted by the defendant or proved to a jury"). Accordingly, the Defendant's Motion to Vacate Sentence (# 41) is DENIED. The Court has sua sponte considered whether to grant a Certificate of Appealability under 28 U.S.C. § 2253(c)(2) and the standards set forth in Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), and, to the extent the Defendant would request a Certificate of Appealability, that request is DENIED. The Clerk of the Court shall close civil action no. 05-cv-01643-MSK. Dated this 21st day of April, 2008 BY THE COURT:

Marcia S. Krieger United States District Judge

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