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United States v. Loaeza-Montes

United States District Court, W.D. Virginia, Harrisonburg Division

October 28, 2016

UNITED STATES OF AMERICA,
v.
EMILIO LOAEZA-MONTES, Petitioner.

          MEMORANDUM OPINION

          MICHAEL F. URBANSKI, UNITED STATES DISTRICT JUDGE

         Emilio Loaeza-Montes, a federal inmate proceeding pro se, has filed a petition to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. The government has filed a motion to dismiss, and Loaeza-Montes has responded, making this matter ripe for consideration. Because Loaeza-Montes has not raised any claim entitling him to relief, his petition must be dismissed.

         I.

         Loaeza-Montes, a Mexican national, was charged in an information with illegally reentering the United States after having been removed on or about July 5, 2013, "subsequent to a conviction for commission of an 'aggravated felony, ' as defined in 8 U.S.C. § 1101(a)(43), " in violation of 8 U.S.C. § 1326(a) and (b)(2). Information at 1, ECF No. 15. Loaeza-Montes had previously been removed from the United States on two occasions. In 2002 he pleaded guilty to aggravated assault and leaving the scene of an accident with injury, was sentenced to three years' imprisonment and three years' probation, and removed in 2004. In 2009, he pleaded guilty to transporting illegal aliens and reentry as a removed alien, was sentenced to five years' imprisonment and five years' supervised release, and removed in 2013. PSR ¶¶ 23, 24, ECF No. 38.

         Loaeza-Montes pleaded guilty to the illegal reentry charge, pursuant to a written plea agreement. Plea Agreement at 1, ECF No. 21. The parties stipulated to a base offense level of 8 under United States Sentencing Guideline ("U.S.S.G.") § 2L1.2(a), with a 16-level enhancement for having previously been removed following a conviction for an alien smuggling offense under U.S.S.G. § 2L1.2(b)(1)(A). Id. at 3.

         The Presentence Investigation Report ("PSR"), in accordance with the plea agreement, recommended a base offense level of 8, with a 16-point enhancement for a prior conviction for an alien smuggling offense and a criminal history category of IV. PSR at ¶¶ 11, 12, 27, ECF No. 38. The PSR calculated Loaeza-Montes' advisory guideline range at 57 to 71 months. Id., at ¶ 41.

         Prior to Loaeza-Montes' sentencing hearing, neither party objected to the PSR, and the court accepted the PSR without change. The court varied downwards from the advisory sentencing guideline range to 36 months to account for Loaeza-Montes' dire financial circumstances stemming from his wife's medical debt and to avoid unwarranted sentencing disparities with others involved in the offense conduct. Loaeza-Montes did not appeal.

         In his July 1, 2016 § 2255 petition, Loaeza-Montes argues that his conviction runs afoul of the decision of the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015). Specifically, Loaeza-Montes claims that following Johnson, none of his prior convictions support the 16-point enhancement applied in his case. In accordance with Standing Order 2015-5, the court appointed the Federal Public Defender ("FPD") to represented Loaeza-Montes and file additional briefing, if necessary. The FPD declined to file any additional briefing and moved to withdraw, which the court allowed. Notice at 1, ECF No. 42; Order, ECF No. 44.

         II.

         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Loaeza-Montes bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         Loaeza-Montes' claim fails because it is untimely. A § 2255 petition must adhere to strict statute of limitations requirements before any of the substantive issues may be addressed. A person convicted of a federal offense must file a § 2255 motion within one year of the latest date on which:

(1) the judgment of conviction becomes final;
(2) the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively ...

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