Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOSEPH E. KOEHLER Assistant U.S. Attorney Arizona State Bar No. 13288 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America No. CR02-80-PHX-SRB Plaintiff, v. Jose Ramon Gauna-Mendoza, Defendant. No. CV-04-2126-PHX-SRB (DKD) RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United States of America, hereby opposes the Motion of defendant Jose Ramon Gauna-

15 Mendoza to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 for the reasons 16 set forth in the attached Memorandum of Points and Authorities. 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 7 day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ Joseph E. Koehler JOSEPH E. KOEHLER Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES Issues Presented On July 15, 2005, defendant-movant Jose Ramon Gauna-Mendoza filed a pro se Motion to

4 Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. The defendant currently 5 is confined at the Federal Correctional Institution in Lompoc, California. He alleges two bases 6 for relief: (1) that his sentence was imposed in violation of the Sixth Amendment because he did 7 not admit and a jury did not find beyond a reasonable doubt that his prior conviction was an 8 aggravated felony, and (2) the issuance of a superseding indictment four months after the 9 original indictment violated the Grand Jury Clause of the Fifth Amendment. In support of his 10 first contention, the defendant relies on the Supreme Court's decision in Blakely v. Washington, 11 124 S. Ct. 2531 (2004). The defendant fails to provide any authority in support of his second 12 argument. 13 The defendant procedurally defaulted his Blakely claim. Further, the defendant's argument

14 regarding Blakely has been foreclosed by the language of Blakely itself, as well as the Supreme 15 Court's opinion in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and several Ninth 16 Circuit cases construing Blakely, Apprendi v. New Jersey, 530 U.S. 466 (2000), and Almendarez17 Torres v. United States, Thus, the Court did not violate the defendant's Sixth Amendment right 18 to trial by jury.1 19 II. Procedural History 20 On January 3, 2002, the defendant was arrested for Re-entry After Deportation. (CR 1.)

21 On January 29, 2002, the grand jury issued an indictment against the defendant. (CR 8.) The 22 grand jury issued a superseding indictment on May 21, 2002. (CR 27; ER 2.) The superseding 23 24 Because the defendant's conviction became final on September 17, 2004, after Blakely was decided (June 24, 2004), the question of whether Blakely can be applied 25 retroactively to a case on collateral review is not at issue in this case. See Clay v. United States, 537 U.S. 522, 527 (2003) (conviction becomes final when Supreme Court "affirms a conviction 26 on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires"). 27 28
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1 indictment charged the defendant with entering, knowingly and intentionally attempting to enter, 2 and being found in the United States after having been deported from the United States, in 3 violation of 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. § 1326(b)(2). (CR 27; ER 2.) 4 The case proceeded to trial on October 1, 2002. (CR 81.) The jury returned a verdict of

5 guilty on October 2, 2002. (CR 83, 84.) 6 On March 31, 2003, this Court sentenced the defendant to a term of imprisonment of 108

7 months, to be followed by 36 months of supervised release, and imposed a $100 special 8 assessment. (CR 115; ER 51.) The defendant filed a notice of appeal on April 8, 2003. (CR 9 116; ER 55.) The Court of Appeals for the Ninth Circuit affirmed the defendant's conviction 10 on September 17, 2004. (CR 144.) 11 III. Analysis 12 A. The Defendant Has Procedurally His Claims Because He Failed To Raise in This Case Or On Direct Appeal. 13 A defendant is procedurally barred from raising a claim on collateral review if the defendant 14 failed to raise that claim at trial or on direct appeal, unless the defendant can establish "cause" 15 excusing the procedural default, and "actual prejudice" resulting from the claimed error. Bousley 16 v. United States, 523 U.S. 614, 622 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982); 17
United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). "'[C]ause' under the cause and prejudice

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test must be something external to the petitioner, something that cannot be fairly attributed to him."

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Coleman v. Thompson, 501 U.S. 722, 753 (1991) (emphasis in original). Although a defendant can

20 establish "cause" by showing that a claim is so "novel that its legal basis is not reasonably 21 available to counsel," Reed v. Ross, 468 U.S. 1, 16 (1984), the Supreme Court has rejected the 22 argument that a claim is not reasonably available simply because it would have been rejected by 23 the court at the time it was made; to the contrary, the Supreme Court stated that "futility cannot 24 constitute cause if it simply means that a claim was 'unacceptable to that particular court at that 25 particular time."' Bousley, 523 U.S. at 623 (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 26 (1982)). Thus, if a defendant had the opportunity to raise an issue on appeal and inexcusably failed to 27 28
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1 do so, he cannot look to the provisions of 28 U.S.C. § 2255 to afford him an opportunity to raise the 2 issue. 3 To establish "actual prejudice," the defendant must "shoulder the burden of showing, not

4 merely that the errors at his trial created a possibility of prejudice, but that they worked to his 5 actual and substantial disadvantage, infecting his entire trial with error of constitutional 6 dimensions." Frady, 456 U.S. at 170 (emphasis omitted). The "showing of prejudice" required 7 to overcome procedural default in the collateral review context "is significantly greater than that 8 necessary" to establish plain error on direct review. Id.; Murray v. Carrier, 477 U.S. 478, 9 493-94 (1986). 10 After the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court

11 of Appeals for the Ninth Circuit considered claims similar to the defendant's Sixth Amendment 12 claim in this case and rejected them. E.g., United States v. Pacheco-Zepeda, 234 F.3d 411, 41313 14 (9th Cir. 2000). Therefore, the existence of the claim was plain after the decision in Apprendi. 14 Given the similar challenges raised before the defendant's sentencing, the defendant can hardly 15 claim that his current challenge was either novel or unavailable. Cf. Bousley, 523 U.S. at 622 16 (rejecting argument that challenge to conviction under 18 U.S.C. § 924(c) was novel and 17 unavailable before the Supreme Court decided Bailey v. United States, 516 U.S. 137 (1995), 18 noting that "the Federal Reporters were replete with cases involving [such] challenges," and 19 further noting "[w]here the basis of a . . . claim is available, and other defense counsel have 20 perceived and litigated that claim, the demands of comity and finality counsel against labeling 21 alleged unawareness of the objection as cause for a procedural default"). Accordingly, defendant 22 has not established "cause" for his procedural default in failing to raise his current claim either 23 at sentencing or on direct appeal. The same is true with respect to the defendant's claim under 24 the Grand Jury Clause, although that claim appears to be novel in that it lacks any grounding in 25 precedent. 26 Likewise, the defendant has failed to establish "actual prejudice" resulting from the claimed

27 errors. In this case, the defendant cannot establish that he was prejudiced by the Court's 28
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1 sentence because he cannot establish that the outcome of his sentencing would have been 2 different. See Frady, 456 U.S. at 170. As discussed infra, the entire line of cases flowing from 3 Apprendi, including Blakely, excepts "the fact of a prior conviction" from the scope of its 4 application. The defendant's sentence enhancement in this case resulted from his prior 5 conviction, and therefore falls within the exception outlined in Apprendi and Blakely. Similarly, 6 because no authority exists to indicate that the issuance of a superseding indictment violates the 7 Grand Jury Clause, the defendant cannot establish prejudice in connection with that claim. 8 Because the defendant has not shown cause or prejudice with respect to his procedural

9 default, his claims must fail. 10 B. Apprendi and Blakely Do Not Apply to Proof of a Prior Conviction. 11 In Apprendi, the Supreme Court announced a general rule that "[o]ther than the fact of a

12 prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory 13 maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 14 S. Ct. at 2362-2363 (emphasis added). The Court extended that rule in Blakely, but retained the 15 language "other than the fact of a prior conviction." Blakely, 124 S. Ct. at 2536 ("this case 16 requires us to apply the rule we expressed in Apprendi"). 17 After the Supreme Court decided Blakely, the Ninth Circuit, in United States v. Quintana-

18 Quintana, 383 F.3d 1052 (9th Cir. 2004), confirmed that its holding in United States v. Pacheco19 Zepeda, 234 F.3d 411 (9th Cir. 2001), remains good law.2 Quintana-Quintana, 383 F.3d at 1053. 20 In Pacheco-Zepeda, the court held the government need not prove beyond a reasonable doubt 21 the existence of a defendant's prior conviction in a prosecution under 8 U.S.C. § 1326. Id. at 22 414-415 ("Apprendi held that all prior convictions . . . were exempt from Apprendi's general rule 23 and, under Almendarez-Torres, may continue to be treated as sentencing factors."). In Blakely, 24 the Supreme Court specifically left proof of a prior conviction as an exception to the rule of 25 26 The Ninth Circuit has maintained this interpretation of Blakely since its decision in Quintana-Quintana. United States v. Lopez-Zamora, 392 F.3d 1087, 1097-98 (9th Cir. 2004); 27 United States v. Smith, 390 F.3d 661, 667 (9th Cir. 2004). 28
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1 Apprendi and did not overrule Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998). 2 Blakely, 124 S. Ct. at 2536; Quintana-Quintana, 383 F.3d at 1053. 3 The defendant's claim his conviction "did not qualify as `aggravated felony'" and was not

4 proven beyond a reasonable doubt may to be an attempt to distinguish Almendarez-Torres. Even 5 during the time prior to Almendarez-Torres, however, the Ninth Circuit was consistent in its 6 holding that "whether an offense is an aggravated felony or a nonaggravated felony is a question 7 of law for the court to decide." United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir. 1994); 8 overruled on other grounds, United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001). This 9 analysis is consistent with the Supreme Court's recent decision in Shepard v. United States, 125 10 S. Ct. 1254 (2005), in which the Court noted that limiting judicial fact-finding regarding the 11 nature of prior convictions to facts gleaned from certain judicial records in the underlying case 12 prevents constitutional doubt from arising under Apprendi. Because the nature of a conviction 13 is a matter of law for the court, it is not a question for a jury to decide, and does not implicate 14 Apprendi or Blakely. 15 Therefore, this Court did not err in enhancing the defendant's sentence based on his prior

16 conviction, and the defendant has not shown prejudice to excuse his procedural default. 17 C. The Superseding Indictment Did Not Violate the Grand Jury Clause 18 The defendant claims the issuance of the superseding indictment on May 21, 2002, violated

19 the Grand Jury Clause of the Fifth Amendment. The defendant fails to provide any authority in 20 support of this claim. The Grand Jury Clause of the Fifth Amendment states: 21 22 No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . .

23 U.S. Const. Amend. V. 24 Nothing in the Grand Jury Clause supports the defendant's claim. Because the defendant

25 bears the burden of establishing his claim and nothing in the text of the Grand Jury Clause 26 supports the claim, the defendant's failure to provide authority or argument in support of this 27 28
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1 claim is a sufficient basis for this Court to deny it without a hearing. See United States v. 2 Espinoza, 866 F.2d 1067, 1069-70 (9th Cir. 1988). 3 IV. Conclusion 4 For all of the foregoing reasons, the Court should deny the defendant's Motion to Vacate, 5 Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. 6 Respectfully submitted this 7 day of September, 2005. 7 8 9 s/ Joseph E. Koehler 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Copy of the foregoing marked "Inmate's Legal Mail" mailed this date, to: Jose Ramon Gauna-Mendoza No. 32687-048 FCI 3600 Guard Road Lompoc, California 93436

PAUL K. CHARLTON United States Attorney District of Arizona

JOSEPH E. KOEHLER Assistant U.S. Attorney

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