Hernandez-Aguilar v. United States
| Decision Date | 02 July 2014 |
| Docket Number | Civil Action No. 1:13-126,Criminal No. B:11-694-1 |
| Parties | FAUSTINO HERNANDEZ-AGUILAR, Petitioner v. UNITED STATES OF AMERICA, Respondent |
| Court | U.S. District Court — Southern District of Texas |
On June 28, 2013, Petitioner Faustino Hernandez-Aguilar filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. Dkt. No. 1. On August 15, 2013, the Government filed a motion to dismiss Hernandez-Aguilar's petition. Dkt. No. 20. Both motions are addressed in this recommendation.
After reviewing the record and the relevant case law, the Court RECOMMENDS that the motion to dismiss be granted. Even if considered on their merits, Hernandez-Aguilar's claims do not entitle him to the relief he seeks.
On August 2, 2011, a federal grand jury - sitting in Brownsville, Texas - indicted Hernandez-Aguilar for illegally re-entering the United States after having been previously excluded, deported or removed. U.S. v. Hernandez-Aguilar, Criminal No. 1:11-694-1, Dkt. No. 6 (J. Hanen, presiding) (hereinafter "CR"). While the language in the indictment reflected that Hernandez-Aguilar's removal followed a conviction for an aggravated felony, the statutory citations merely charged him with violating 8 U.S.C. § 1326(a) & (b).1
On August 25, 2011, Hernandez-Aguilar entered a guilty plea, without a written plea agreement, to illegally re-entering the United States. CR Dkt. No. 13.
Hernandez-Aguilar entered his guilty plea before a United States Magistrate Judge. CR Dkt. No. 30. During the Rule 11 colloquy, the Court established that Hernandez-Aguilar was able to understand the proceedings, and had discussed the charges with his attorney. CR Dkt. No. 30, pp. 9-12.
Also during that proceeding, Hernandez-Aguilar stated that he understood the possible sentences that he faced and the effect of the sentencing guidelines in his case. CR Dkt. No. 30, pp. 21-26. Hernandez-Aguilar further stated that he understood his constitutional right to remain silent; his constitutional right to the assistance of counsel; his constitutional right to trial by jury; his constitutional right to a presumption of innocence that the government must overcome by proving guilt beyond a reasonable doubt; and, his constitutional right to cross-examine opposing witnesses and to subpoena witnesses on his behalf. Id., pp. 28-33.
Having stated that he understood all of his rights, Hernandez-Aguilar pled guilty to illegally re-entering the United States following deportation or removal. CR Dkt. No. 30, pp. 52-54. The District Judge adopted the Magistrate Judge's Report and Recommendation and found Hernandez-Aguilar guilty in accordance with his plea. CR Dkt. No. 19.
In the final presentence report, Hernandez-Aguilar was assessed a base offense level of eight. CR Dkt. No. 16, p. 4. He was also assessed a sixteen-level enhancement based upon a prior conviction for aggravated assault, which was reported as a crime of violence.2 Id. Hernandez-Aguilar received a three-level reduction for acceptance of responsibility. Id, p.5. Thus, Hernandez-Aguilar was assessed a total offense level of 21. Id.
Regarding his criminal history, Hernandez-Aguilar had four prior adult criminal convictions. CR Dkt. No. 15, pp. 5-8. The nature of these convictions resulted in five criminal history points. CR Dkt. No. 15, pp. 5-8. Hernandez-Aguilar was assessed an additional two criminal history points because he was on probation at the time he committed the instant offense. Id. With 7 criminal history points, Hernandez-Aguilar was assessed a criminal history category of IV. Id. The presentence report, based upon Hernandez-Aguilar's offense level of 21 and criminal history category IV, identified a guideline sentencing range of 57 to 71 months of imprisonment. Id., p. 10.
Through his counsel, Hernandez-Aguilar responded to the pre-sentence report by requesting that the sentence in this case run concurrent with any other sentences he may receive in other cases and that the Court consider granting a downward departure. CR Dkt. No. 18.
On November 28, 2011, the District Court sentenced Hernandez-Aguilar to 57 months of incarceration, a three year supervised release term - without supervision - and a $100.00 special assessment, which was ordered remitted. CR Dkt. No. 21. The judgment - which reflected that Hernandez-Aguilar was convicted of violating 8 U.S.C. §§ 1326(a) & (b) and identified the "Nature of Offense" as illegal reentry "[h]aving [b]een [p]reviously [c]onvicted of an [a]ggravated [ffjelony" - was entered on December 1, 2011. Id.
On December 5, 2011, Hernandez-Aguilar filed a notice of appeal. CR Dkt. No. 23. In his direct appeal, Hernandez-Aguilar made two claims: (1) the imposition of a term of supervised released was substantively unreasonable; and, (2) that the Court erred by convicting, sentencing, and entering judgment against him pursuant to § 1326(b)(2) because he previously had not been convicted of an aggravated felony. CR Dkt. No. 36.
On December 12, 2012, the Fifth Circuit decided Hernandez-Aguilar's direct appeal. CR Dkt. No. 36. As to the first claim, the Fifth Circuit concluded that the imposition of supervised release "was presumptively reasonable" and that Hernandez-Aguilar did not overcome that presumption. Id. As to Hernandez-Aguilar's second claim, the Court decidedthat the aggravated assault conviction was not an aggravated felony and that the District Court erred by entering a judgment indicating that Hernandez-Aguilar's prior conviction for aggravated assault "supported his conviction under § 1326(b)(2)." Id. As to a remedy, the Fifth Circuit expressly found that Hernandez-Aguilar was "not entitled to be re-sentenced, . . ., because he ha[d] not shown that the error affected the outcome in the district court." Id. The Fifth Circuit remanded the case to the district court solely "for reformation of the judgment." Id.
On January 10, 2013, the District Court issued an amended judgment, in conformance with the Fifth Circuit's instructions. CR Dkt. No. 37. The amended judgment reflected that Hernandez-Aguilar was convicted of violating "8 U.S.C. § 1326(a) and 1326(b)(1)" and that the nature of the offense was being found unlawfully present in the United States after deportation "[h]aving [b]een [p]reviously [c]onvicted of a [f]elony." CR Dkt. No. 37. Hernandez-Aguilar's sentence remained unchanged. Id.
Neither the Fifth Circuit docket nor the Supreme Court docket reflect the filing of a petition for certiorari.
On June 28, 2013, Hernandez-Aguilar filed the instant § 2255 motion, requesting that the District Court vacate, set aside, or correct his sentence. Dkt. No. 1. In that motion, Hernandez-Aguilar alleged four grounds for relief: (1) his counsel was ineffective for failing to object to Hernandez-Aguilar's conviction and sentence pursuant to § 1326(b)(2), because it was the incorrect statutory provision; (2) that Hernandez-Aguilar is "actually innocent of the unlawfully imposed 8 U.S.C. § 1326(b)(2) conviction;" (3) the Court lacked the subject matter jurisdiction to "try, convict or sentence" Hernandez-Aguilar under § 1326(b)(2); and, (4) counsel was ineffective "by failing to object to the Court's failure to consider all of the 18 U.S.C. § 3553(a) sentencing factors." Dkt. No. 2.
On July 1, 2013, the Court ordered the Government to respond to the § 2255 petition. Dkt. No. 4. On July 11, 2013, the Government moved for the Court to order Hernandez-Aguilar's defense counsel to file an affidavit, responding to Hernandez-Aguilar's allegations. Dkt. No. 11. On July 12, 2013, the Court granted that motion. Dkt. No. 12.
On August 7, 2013, Hernandez-Aguilar's counsel filed the ordered affidavit. Dkt. No.18. Counsel stated that he "mistakenly did not object to the finding of the aggravated felony enhancement because it did not impact the guideline [range], only the maximum sentence." Id. Counsel also noted that he requested a downward departure for his client, expressly requesting that the Court consider the § 3553(a) factors. Id.
On August 15, 2013, the Government moved to dismiss Hernandez-Aguilar's petition. Dkt. No. 19. The Government asserted that Hernandez-Aguilar's the first claim was foreclosed by the Fifth Circuit's decision that Hernandez-Aguilar was not prejudiced by being sentenced and convicted under § 1326(b)(2). Id. As to the second and third claims, the Government asserted that those claims were procedurally defaulted because they were not raised on direct appeal. Regarding Hernandez-Aguilar's fourth claim, the Government asserts that it is not cognizable on collateral attack and, moreover, it is contrary to the record.
Hernandez-Aguilar seeks relief pursuant to 28 U.S.C. § 2255. Dkt. No. 1. As relevant here, that section provides:
Where a § 2255 petitioner exhausts or waives his direct appeal, courts may presume that he was fairly convicted. U.S. v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Generally, a petitioner may not raise on collateral attack issues that he failed to raise on direct appeal, absent a showing of cause and prejudice. Id. The Fifth Circuit "has stated in dicta that jurisdictional claims not raised on direct appeal are procedurally defaulted and cannot be raised on collateral...
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