Opinion
2:03-CR-0117 (01).
June 28, 2005
REPORT AND RECOMMENDATION TO DENY MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
On June 24, 2005, defendant ROSALIO NAVARRETE MATA filed with this Court a Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, wherein he challenges a 60-month sentence assessed on or about February 17, 2004 after his conviction, pursuant to a guilty plea, for the offense of illegal re-entry of an alien after deportation. For the reasons set forth below, defendant is not entitled to relief and this motion should be denied.
I. MERITS
Defendant first appears to challenge his sentence violated the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant's reliance on Apprendi is misplaced. In Apprendi the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt (emphasis supplied)." 530 U.S. at 490.
Defendant's sentence does not violate Apprendi. Defendant pleaded guilty to Count One of the indictment charging violations of 8 U.S.C. §§ 1326(a)(1), (b)(2) and 6 U.S.C. §§ 202(3), 204(4), and 557, Illegal Reentry after Deportation. The maximum punishment that could have been imposed was twenty (20) years. Pursuant to the terms of the "Plea Agreement," defendant was informed of the maximum punishment, and he and his attorney both appeared in person and signed the "Plea Agreement." Defendant's sentence of 60 months did not exceed the statutory maximum of twenty (20) years. No violation of Apprendi occurred.
Defendant next challenges his sentence based upon the recent United States Supreme Court decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403, 72 U.S.L.W. 4546 (June 24, 2004). In Blakely, the Supreme Court considered a state's sentencing procedure which allowed a state judge to impose a sentence above the offense's statutory maximum punishment upon the judge finding aggravating factors that justify such an upward departure. In Blakely, the state judge determined such factors existed and sentenced the defendant to more than three (3) years above the statutory maximum. The Court found the facts supporting the state judge's finding were neither admitted by petitioner nor found by a jury. Noting the jury's verdict alone did not authorize the sentence, the Supreme Court found the state's sentencing procedure did not comply with the Sixth Amendment right to trial by jury.
In United States v. Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), the Fifth Circuit considered the impact of Blakely on the federal Sentencing Guidelines and held that Blakely does not extend, or apply, to the federal Sentencing Guidelines. See also United States v. Owen, 2004 WL 1982394, *1 (5th Cir. Sept. 7, 2004); United States v. Cuellar, 2004 WL 1854504, *1 (5th Cir. Aug. 18, 2004). Therefore, under the law of this circuit, defendant's claim that his sentence, assessed under the federal Sentencing Guidelines, is unconstitutional based upon Blakely and, thus, should be vacated, is foreclosed by binding precedent. Such a claim is not cognizable in a section 2255 action absent an on-point en banc decision from the Fifth Circuit or an intervening ruling from the United States Supreme Court.
II. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the motion to vacate, correct or set aside sentence filed by defendant ROSALIO NAVARRETE MATA be DENIED.
III. INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner and to counsel of record for respondent by the most efficient means available.
IT IS SO RECOMMENDED.