Opinion
Case No. 2:05 CV 00029, Related to 2:03 CR 00699.
March 31, 2005
ORDER
Before the Court is Petitioner Walter Salvador Cruz Lopez's 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 September 10, 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 1996 conviction for voluntary manslaughter. Voluntary manslaughter is 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 October 20, 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-one and a criminal history category of III, resulting in a guideline range of forty-six to fifty-seven months. On January 5, 2004, the Court sentenced Petitioner to a term of imprisonment of forty-six months. Petitioner's motion followed.
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 charged in the indictment or found by a jury beyond a reasonable doubt.
DISCUSSION
Petitioner's arguments fail for three reasons. First, the cases he cites expressly exempt enhancements based on prior convictions. Second, the Supreme Court's recent ruling inBooker does not apply retroactively. Third, Petitioner's forty-six month sentence did not exceed the maximum authorized by 8 U.S.C. § 1326(a), (b)(2).
The first reason for denying Petitioner's motion is that his 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 andBlakely 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 inBlakely, "`[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 that Blakely 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 simply a matter of judicial record that the Court did not need to submit to a jury. Furthermore, a prior conviction does not, as Petitioner argues, need to be charged in an indictment upon reentry. The Supreme Court expressly held so inAlmendarez-Torres v. United States, 523 U.S. 224 (1998).
Second, even if the Booker decision contained law that could support Petitioner's claims, Petitioner would not be entitled to its retroactive application. "A new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive." Leonard v. United States, 383 F.3d 1146, 1147 (10th Cir. 2004) (quotations and citations omitted); see also Browning v. United States, 241 F.3d 1262, 1264 (10th Cir. 2001) ("[A] rule is `made retroactive' by the Court only if the Court actually applies the rule retroactive[ly], or makes some explicit statement regarding retroactivity."). With regard to the rule announced in Booker, the Supreme Court made no suggestion that it should be applied retroactively. Moreover, the Tenth Circuit has specifically held that it does not apply retroactively. United States v. Lucero, No. 04-2131, 2005 U.S. App. LEXIS 2928 (10th Cir. Feb. 18, 2005); see also Humphress v. United States, 398 F.3d 855 (6th Cir. 2005). Therefore, Petitioner may not rely onBooker for relief.
Finally, Petitioner's forty-six month sentence did not exceed the maximum authorized by 8 U.S.C. § 1326(a), (b)(2). Under § 1326(a), a deported alien who illegally reenters the country may be imprisoned for a maximum of two years. The maximum increases, however, from two to twenty years if the defendant's initial deportation followed a conviction for aggravated felony. This increase is set forth in § 1326(b)(2). Petitioner was subject to the twenty year maximum because of his conviction for voluntary manslaughter, an aggravated felony, and Petitioner's sentence of forty-six months was well below this maximum. Thus, Petitioner was not improperly sentenced.
CONCLUSION
For the reasons stated above, Petitioner has failed to show that his conviction and sentence are unlawful, and his motion to vacate, set aside, or correct his sentence in accordance with 28 U.S.C. § 2255 is hereby DENIED. The Court appreciates the clear and thorough briefing submitted by both parties.
IT IS SO ORDERED.