Opinion
Case No. 2:05 CV 00129.
April 8, 2005
ORDER
Before the Court is Petitioner Hernandez Ramirez Carlos' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Court, having reviewed all briefing and relevant law, DENIES Petitioner's motion for the reasons set forth below.
BACKGROUND
On April 24, 2003, a Grand Jury returned an indictment charging Petitioner with one count of Reentry of a Previously Deported Alien, a violation of 8 U.S.C. § 1326. On that same date, the Government filed a notice of sentencing enhancement based on Petitioner's earlier convictions for drug charges. At least one of the earlier drug charges constituted an aggravated felony as defined by 8 U.S.C. § 1101 (a)(43). Petitioner's conviction for an aggravated felony increased the statutory maximum for his reentry offense from two to twenty years. See 8 U.S.C. § 1326(a), (b)(2).
On June 3, 2003, Petitioner entered a plea of guilty pursuant to a written plea agreement. A presentence report prepared by the Office of Probation and Pretrial Services recommended a sixteen-level enhancement based on Petitioner's prior conviction. The report further concluded that Petitioner had a total offense level of twenty-four and a criminal history category of IV, resulting in a guideline range of fifty-seven to seventy-one months. On August 12, 2003, the Court sentenced Petitioner to a term of imprisonment of fifty-seven months. Petitioner then filed the instant motion on February 16, 2005.
In his motion, Petitioner argues that his sentence was in "excess of the maximum authorized" pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 125 S.Ct. 738 (2005). Specifically, he argues that the court violated his Fifth and Sixth Amendment rights when it enhanced his sentence based on a prior conviction that was not found by a jury beyond a reasonable doubt.
DISCUSSION
Petitioner's arguments fail for the following reasons. First, Petitioner's motion is both untimely and successive. Under 28 U.S.C. § 2255(1), a prisoner in custody under sentence of the Court has one year from the date on which the judgment is made final to bring a § 2255 petition. Petitioner was sentenced on August 12, 2003, and Petitioner filed the document now before the Court on February 16, 2005 — well beyond the one-year limitation. Furthermore, Petitioner already filed a § 2255 petition in this case on July 16, 2004, which was denied on December 13, 2004. A second or successive § 2255 petition may only be heard by the district court if it has been certified by a three-judge panel of the Tenth Circuit Court of Appeals. No such certification has occurred in this case. Therefore, Petitioner's motion must be denied.
Even if Petitioner's motion was not time-barred or successive, Petitioner's reliance on Apprendi, Blakely, and Booker is misplaced. Collectively, the cases prevent courts from using facts "neither admitted by [a defendant] nor found by a jury" to enhance sentences beyond prescribed maximums. Blakely, 124 S.Ct. at 2537. While Apprendi and Blakely addressed state sentencing schemes, Booker addressed the federal sentencing system. These cases do not support Petitioner's claims because the existence of a prior conviction is not a fact that needs to be proven to a jury. As stated in Blakely, "`[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.'" 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis added)); see also United States v. Sanchez-Cruz, 392 F.3d 1196, 1202 (10th Cir. 2004) (holding thatBlakely does not preclude courts from using the enhancement in 8 U.S.C. § 1326(b)(2) when sentencing a convicted aggravated felon who illegally reenters the country). In this case, Petitioner's prior conviction for an aggravated felony was a matter of judicial record that the Court did not need to submit to a jury. Petitioner's counsel was not ineffective for failing to raise objections based on these cases.
CONCLUSION
Petitioner's motion is both untimely and successive and therefore fails. Even if it were not untimely, Petitioner could not obtain any relief via the cases cited. Petitioner's motion to vacate, set aside, or correct his sentence is accordingly DENIED.
IT IS SO ORDERED.