Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Loyda-Hernandez

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

November 8, 2016

UNITED STATES OF AMERICA,
v.
ANTONIO LOYDA-HERNANDEZ, a/k/a Antonio Hernandez-Loida Jose Loyda-Hernandez Arturo Cruz Hernandez Alvaro Loyda-Hernandez Alberto Hernandez Defendant.

          MEMORANDUM OPINION

          Michael F. Urbanski, United States District Judge.

         Antonio Loyda-Hernandez, [1] 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 Loyda-Hernandez has responded, making this matter ripe for consideration. Because Loyda-Hernandez has not raised any claims entitling him to relief, his petition must be dismissed.

         I.

         On November 21, 2013, a federal grand jury indicted Loyda-Hernandez for illegally reentering the United States after having been removed "on or about July 25, 2005, 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. Indictment at 1, ECF No. 1. Loyda- Hernandez, a Mexican national, had previously been removed from the United States on two occasions. On December 15, 1995, he was convicted of second-degree rape in North Carolina, sentenced to serve between 63 and 85 months' imprisonment, and removed on February 17, 2001. On October 7, 2002, he was convicted of trafficking in cocaine and conspiracy to traffic cocaine in North Carolina and sentenced to serve between 35 and 42 months' imprisonment, and was again removed on July 25, 2005. Factual Basis at 2, ECF No. 20.

         Loyda-Hernandez pleaded guilty, pursuant to a written plea agreement, in accordance with Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure. Because he pleaded guilty to a § 1326 violation after having been convicted of an aggravated felony, he faced a maximum sentence of 20 years' incarceration. 8 U.S.C. § 1326(b)(2). He stipulated to a base offense level of 8 under United States Sentencing Guideline ("U.S.S.G.") § 2L1.2, for unlawfully entering or remaining in the United States. In addition, he stipulated to an 8-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) for having previously been deported following a conviction for an aggravated felony. PSR at 3, ECF No. 18. The plea agreement provided that Loyda-Hernandez understood "other guideline sections may be applicable" to his case and that the court was not bound by any stipulations included in the plea agreement. Id. at 3, 11.

         The Presentence Investigation Report ("PSR") recommended a base offense level of 8 and a 16-point enhancement, rather than the 8-point enhancement to which he stipulated in the plea agreement, because Loyda-Hernandez previously had been "convicted of a crime of violence, 2nd degree rape, and a drug trafficking offense, trafficking in cocaine, " in accordance with U.S.S.G. § 2L1.2(b)(1)(A). PSR ¶ 13, ECF No. 28. The PSR calculated Loyda-Hernandez's guideline range as 46 to 57 months. Id. at ¶ 41.

         At Loyda-Hernandez's sentencing hearing, the court accepted the PSR and calculated his advisory guideline range as 46 to 57 months. Statement of Reasons at 1, ECF No. 27. The court sentenced Loyda-Hernandez to the low end of that range, 46 months. Judgment at 2, ECF No. 26. Loyda-Hernandez did not appeal. He filed this § 2255 petition alleging diat his "prior aggravated/violent offense(s) are no longer predicates based on a new constitutional ruling" in Johnson v. United States. 135 S.Ct. 2551 (2015). § 2255 Mot. at 4, ECF No. 30. In accordance with Standing Order 2015-5, the court appointed the Federal Public Defender to represent Loyda-Hernandez and file additional briefing, if necessary. The Federal Public Defender declined to file any additional briefing. Notice at 2, ECF No. 33.

         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). Loyda-Hernandez 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).

         Loyda-Hernandez's claim fails, however, because it is untimely. A § 2255 petition must adhere to strict statute of limitations requirements before a court may consider any substantive claims. 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 applicable to cases on collateral review; or
(4) the facts supporting the claim or claims presented could have been discovered through the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.