Opinion
Civil Action No. 1:16-cv-126 Criminal No. 1:14-cr-605-1
09-06-2016
ANTONIO RODRIGUEZ-RAMIREZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the Court is the Magistrate Judge's Report and Recommendation (hereafter "R&R") in the above-referenced cause of action, recommending that Rodriguez-Ramirez's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct his sentence be dismissed with prejudice for lack of merit. Docket No. 5. On August 29, 2016, Rodriguez-Ramirez filed an objection to the Magistrate Judge's R&R, arguing that he is entitled to relief under the new rule of law announced in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015) because the sixteen (16) level enhancement he received for a prior "alien smuggling offense" incorporated an unconstitutionally vague residual clause found in 18 U.S.C. § 16(b). Docket No. 8 at 1-2.
Rodriguez-Ramirez also requested that the Court stay his 28 U.S.C. § 2255 motion until a final ruling is reached in United States v. Gonzalez-Longoria, No. 15-40041, on rehearing en banc before the Fifth Circuit. Id. at 2. At issue in Gonzalez-Longoria is whether the "crime of violence" definition provided by 18 U.S.C. § 16(b), when incorporated into United States Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague on its face in light of Johnson, 135 S. Ct. 2551, in which the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was struck down by the Supreme Court as unconstitutionally vague.
Ultimately, the Magistrate Judge correctly notes in his R&R that Rodriguez-Ramirez was not sentenced pursuant to the residual clause in 18 U.S.C. § 16(b). Docket No. 5 at 5. Therefore, regardless of the constitutionality of 18 U.S.C. § 16(b), Rodriguez-Ramirez presents no valid claim for § 2255 relief under Johnson. Instead, Rodriguez-Ramirez was sentenced pursuant to U.S.S.G. §§ 2L1.2(a), 2L1.2(b)(1)(A)(vii), 4A1.1(a), and 4Al.2(k)(1), none of which contain or incorporate any clauses resembling the one found to be unconstitutionally vague in Johnson. Moreover, because Rodriguez-Ramirez's enhancement was based on his prior alien smuggling offense, explicitly listed under § 2L1.2(b)(1)(A)(vii), Rodriguez-Ramirez cannot correctly argue that his sentence was enhanced pursuant to a vague clause.
There is no need to stay Rodriguez-Ramirez's § 2255 motion, as the Fifth Circuit issued its en banc opinion in Gonzalez-Longoria on August 5, 2016, finding that 18 U.S.C. § 16(b), when incorporated into United States Sentencing Guidelines § 2L1.2(b)(1)(C), is not unconstitutionally vague on its face. United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 4169127 (5th Cir. Aug. 5, 2016). As previously stated, however, the Fifth Circuit's holding does not impact Rodriguez-Ramirez's § 2255 motion because he was not sentenced pursuant to 18 U.S.C. § 16(b), by incorporation or otherwise.
For the foregoing reasons, the Magistrate Judge's Report and Recommendation is ADOPTED. It is therefore, ORDERED, ADJUDGED, and DECREED that Rodriguez-Ramirez's § 2255 Motion, Docket No. 1, is DISMISSED with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. A certificate of appealability shall not issue.
Signed on this 6th day of September, 2016
/s/_________
Rolando Olvera
United States District Judge