Opinion
2:99-CR-0015(01)
August 27, 2003
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO VACATE. SET ASIDE. OR CORRECT SENTENCE
Defendant VICTOR HUGO ENCISO-ULLOA has filed with this Court a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. Although it may be within the discretion of the Court to provide the defendant with some relief, it is the opinion of the undersigned that if any relief is to be granted, such is entirely at the option of the sentencing judge, and that the granting of relief is neither compelled nor required.
I. PROCEDURAL HISTORY
On March 2, 1999, defendant was charged by indictment in the Northern District of Texas, Amarillo Division, with the offense of possession with intent to distribute cocaine, such offense alleged to have occurred on or about February 17, 1999. On May 14, 1999, defendant appeared before the United States District Judge and, pursuant to a plea agreement with the government, entered a plea of guilty to the offense charged in the indictment. The statutory range of incarceration applicable to the offense to which defendant pled was imprisonment for a period often years to life. The factual resume entered into the record recited that defendant had been in possession of approximately 50 kilograms of cocaine at the time of his arrest. Defendant's plea of guilty was accepted by the district judge and sentencing was deferred pending receipt of a Presentence Investigation Report (PSI).
The PSI, prepared June 18, 1999, set forth a sentencing guideline range of imprisonment of 135 to 168 months, based on a total offense level of 31 and a criminal history category of III. Defendant does not challenge the total offense level 31 calculation, but does challenge the criminal history category III calculation. The defendant does not allege the category III calculation was incorrect when he was sentenced. Instead, he alleges his criminal history category today would be category II because a state conviction which had been properly included in the PSI calculation in June 1999 was set aside subsequent to his sentencing. In reaching the criminal history calculation used at the sentencing hearing in July 1999, the PSI cited no prior juvenile adjudications against defendant, but listed defendant's prior adult criminal convictions as follows:
1. Theft and Trespassing (arrest at age 19) Disposition 07/23/81: pled guilty, fine was assessed. 0 points
2. Driving Under the Influence (arrest at age 31) Disposition 11/22/93: pled guilty, sentenced to 18 months probation. Probation successfully completed 05/22/95. 1 point
3. Possession of Marijuana (arrest at age 32) Disposition 05/27/94: pled guilty, sentenced to 3 years probation and a fine was assessed. 1 point
4. Driving Under the Influence (arrest at age 34) Disposition 04/15/96: pled guilty, sentenced to 6 months probation, 1 day in jail and was assessed a fine. 1 point
5. Possession of Marijuana (arrest at age 35) Disposition 05/28/98: pled guilty, fine was assessed. 1 point
Based upon the convictions listed above, defendant's total criminal history score was calculated at 4, which resulted in his criminal history category of III.
Sentencing was held July 15, 1999. The PSI guideline calculations were found to be correct. Defendant was sentenced to a term of 135 months in prison, a mandatory assessment of $100.00 was levied, and defendant was also sentenced to serve a 5-year period of supervised release upon release from prison. On July 15, 1999, judgment was entered in accordance with the pronounced sentence.
On July 18, 2000, defendant filed the instant Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. On February 13, 2001, the government filed its response to defendant's motion to vacate agreeing the motion should be granted, that the defendant's criminal history should be recalculated, and the defendant resentenced.
II. DEFENDANT'S ALLEGATIONS
In his motion to vacate, defendant appears to present the following claim:
Defendant's sentence was imposed by the addition of one point pursuant to U.S.S.G. § 4A1.l(c) upon a "vacated" conviction such error resulting in a higher sentence.
III. MERITS
Following a conviction and exhaustion or waiver of the right to direct appeal, a defendant is presumed fairly and finally convicted. United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (en bane), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). As a result, review of convictions pursuant to section 2255 ordinarily is limited to questions of constitutional or jurisdictional magnitude. Such issues may not be raised for the first time on collateral review without a showing of cause for failing to raise the issue on direct appeal and actual prejudice resulting from the alleged error. Id. Other types of error (non-constitutional or non-jurisdictional error) may not be raised under section 2255 unless the defendant demonstrates the error could not have been raised on direct appeal and, if condoned, would result in a complete miscarriage of justice. United States v. Cervantes, 132 F.3d 1106 (5th Cir. 1998). See also United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (collateral attack primarily limited to issues of constitutional or jurisdictional magnitude and, even then, movant must show both cause for not raising issue on direct appeal and prejudice because of such failure; other errors may not be raised unless movant shows both error could not have been raised on direct appeal, and error, if condoned, would result in complete miscarriage of justice); United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992); United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992).Defendant's alleged error, i.e., that the district judge erroneously calculated defendant's criminal history category, is a non-constitutional, non-jurisdictional claim, see United States v. Vaughn 955 F.2d 367 (5th Cir. 1992) (a court's technical application of the sentencing guidelines does not create a constitutional issue). Ordinarily, such an alleged error should be raised in a direct appeal. See United States v. Baty, 980 F.2d 977 (5th Cir. 1992), cert. denied, 508 U.S. 956, 113 S.Ct. 2457, 124 L.Ed.2d 672 (1993) (a defendant always has a right to appeal the court's application of the sentencing guidelines unless he waives that right as part of the plea agreement).
Defendant's motion and brief in support thereof, reveals that defendant's May 28, 1998 conviction for possession of marijuana was dismissed by the state trial court on June 12, 2000, because defendant met his fine obligation. Since this conviction was not dismissed until after the date judgment was entered plus thirty (30) days, the issue could not have been presented within the time allowed for direct appeal. The government has not objected to this issue being presented in a § 2255 motion and has conceded the instant motion is timely since it was filed within one year of the date defendant's state marijuana conviction was vacated.
As discussed below, caselaw exists to support the position that the issue raised herein is a proper § 2255 subject. The significance of the caselaw and whether it constitutes binding precedent is also discussed. The undersigned does question whether the issue rises to the level of a complete miscarriage of justice if condoned.
Criminal History Score
Defendant argues his criminal history calculation was erroneous. Specifically, defendant contends he is entitled to be resentenced because the inclusion of the possession of marijuana conviction from May 28, 1998, and the resulting 1 point addition to the score calculation, was improper, such conviction having been dismissed June 12, 2000.The government, in its response to the motion to vacate, states:
On July 15, 1999, Defendant VICTOR HUGO ENCISO-ULLOA, was sentenced to 135 months imprisonment on Count 1 of the indictment in this cause. The Defendant's guideline range was based on a criminal history category of III as a result of a criminal history score of 4 points. On June 12, 2000, the City Magistrate Judge of Justice Court 1201, Santa Cruz County, Arizona, entered an order dismissing, recanting, and setting aside the judgement in cause #CR9700418. Cause #CR9700418 was cited on page 5 in the pre-sentence report, and one criminal history point was assessed based on that conviction. Criminal history category III requires a minimum of four criminal history points. . . . The government's position is that ENCISO-ULLOA's motion has merit and should be granted.
The government's concession notwithstanding, it is the opinion of the undersigned, that issues for consideration are presented, and that while the defendant may be eligible to receive some relief, he is not entitled to any relief.
First, the 135 month sentence imposed for a category III defendant, as in this case, could also have been imposed for a category II defendant, since the guideline range for criminal history n, and level 31, is 121-151 months.
Secondly, even though the marijuana conviction was dismissed, it could still be a proper matter for consideration by the sentencing judge, either in calculating the proper criminal history or as sentencing evidence.
Third, the precedent upon which relief would be based, and which was cited by the government is not unassailable. The government cites Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), United States v. Nichols, 30 F.3d 35 (5th Cir. 1994), and United States v. Cox, 83 F.3d 336 (10th Cir. 1996). Each of these cases, however, is distinguishable from the instant case.
The issue in Custis was whether a defendant, facing sentencing as an "armed career criminal, " could collaterally attack the predicate state court convictions at his federal sentencing. The Supreme Court said no such collateral attack was permissible.
Nichols also involved a defendant sentenced as an "armed career criminal." The Nichols court held that a defendant in a 2255 action could attack a federal sentence which had been enhanced by a state conviction which had been vacated after sentencing. The Nichols court, however, based its decision on the government's concession that such attack was permissible per Custis.
Enhancement of punishment based upon "armed career criminal" status can include a fifteen (15) year minimum sentence in addition to significant guideline level increases, and, therefore, is a much more critical calculation than a criminal history calculation. Thus, Custis and Nichols are distinguishable in that this case does not involve "armed career criminal" provisions.
In United States v. Cox, 83 F.3d 336 (10th Cir. 1996), the issue, more on point to the instant case, was whether the criminal history score should be recalculated based upon convictions vacated subsequent to defendant's sentencing. In that case, however, the sentence the defendant originally received, 168 months, exceeded what the guideline sentence range calculation would have been without the vacated convictions, i.e., 121-151 months. Cox is thus distinguishable from this case because the sentence defendant Encisco-Ulloa received (135 months), is within the category II range.
In addition to all of the above cited cases being factually distinguishable, Custis v. United States, supra, is, in the opinion of the undersigned, of arguable precedential value. While it is true several courts have cited Custis for the proposition that a § 2255 motion is the proper vehicle to seek a second sentencing hearing where a conviction is vacated subsequent to the original sentencing, Custis never so held. Instead, Custis held that a defendant, facing "armed career criminal status" and sentence enhancement based upon such status, was not entitled to litigate, during the federal sentencing hearing, the validity of the underlying criminal convictions. In dicta, the Supreme Court held open, but did not decide, the question of whether a defendant would be allowed to reopen a federal sentence enhanced by state convictions which were successfully attacked in proceedings occurring subsequent to the federal sentencing.
Specifically, the Custis Court held, at 511 U.S. 485, 497, that:
We recognize, however, as did the Court of Appeals, see 988 F.2d at 1363, that Custis, who was still "in custody" for purposes of his state convictions at the time of his federal sentencing under § 924(e), may attack his state sentences in Maryland or through federal habeas review. See Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989). If Custis is successful in attacking these state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentences. We express no opinion on the appropriate disposition of such an application.
The Fifth Circuit in U.S. v. Nichols remanded, focusing on the Custis dicta, and on a concession from the government that, per Custis, a defendant could not only apply to reopen federal sentencing, but that he should, upon such reopening, prevail and get the benefit of the fact that a previous state conviction was vacated.
In Cox, a Tenth Circuit case, and the only case where the issue related to the criminal history score as opposed to "armed career criminal" status, the original sentence exceeded the proposed, new guideline range. Even then, the Cox court left up to the original sentencing judge whether or not to reduce the sentence, depending upon several factors, including the basis for setting the conviction aside.
The basis for setting the sentence aside in defendant Encisco-Ulloa's case appears to be based upon payment of a fine and not because the defendant was factually innocent of the crime.
In the instant case, based upon the government's concession, the defendant may be eligible to receive discretionary relief and to have a recalculation of his guideline range. The guideline range on a criminal history category of III and total offense level of 31 is 135 to 168 months. The guideline range on a criminal history category of II and total offense level of 31 is 121 to 151 months. Since, however, the sentence originally assessed, 135 months, is within the 121 to 151 month range, the defendant may receive, but the Court is not required to grant, relief in the form of a reduction of the 135 month sentence.
While it is the opinion of the Magistrate Judge that no resentencing is required and that the defendant is not entitled to relief, it is also the opinion of the undersigned that the sentencing judge may, in the Court's discretion, elect to resentence, based upon U.S. v. Nichols and based upon the government's concession.
IV. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed by defendant VICTOR HUGO ENCISO-ULLOA may be, but is not required to be granted. It appears, pursuant to United States v. Nichols, 30 F.3d 35 (5th Cir. 1994), and based upon the government's concession, that the District Judge may, in her discretion, grant relief. It also appears that the District Judge may deny relief. Therefore, the Magistrate Judge makes no recommendation since the sentencing decision is within the District Judge's discretion.V. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to defendant by certified mail, return receipt requested, and to each attorney of record by regular U.S. Mail or other pre-arranged means.
Any party may object to the proposed findings, conclusions, or recommendation within fourteen (14) days after its filing. See 28 U.S.C. § 636(b)(1); Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts; F.R.CP. 5(b). Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and 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 and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.