Opinion
Case No. 2:02cv333
June 2, 2003
ORDER
This matter is before the court on Petitioner Jesus Valensuela-Navarro's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C § 2255. On January 31, 2001, Defendant pled guilty to the charge of illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. Defendant was sentenced on April 17, 2001, to 77 months in the custody of the Bureau of Prisons with 36 months of supervised release. Approximately one year after his sentencing, on April 24, 2002, Valenzuela-Navarro filed this motion with a supportive memorandum. On December 30, 2002, this Court ordered the United States Attorney to respond to petitioner's motion. The Court having received the government's response and having reviewed all filings by the parties, now issues the following order.
I. Petitioner's Motion
Petitioner pleads several grounds upon which he claims that his sentence could be vacated, set aside or modified. First, that the indictment was defective because it did not allege the previous felonies convictions which enhanced his sentence and second, that 8 U.S.C. § 1326 is unconstitutional because it authorizes an increase in the maximum sentence based on facts found by a judge under a standard less than a reasonable doubt. Petitioner's memorandum briefly alleges in the alternative that his enhanced sentence violated his 5th and 6th Amendment rights and further that his counsel was ineffective.
A. Grounds for Enhancement
The United States Code provides that the sentence of a previously deported alien may be enhanced if his removal was subsequent to the commission of an aggravated felony. See 8 U.S.C § 1326(b)(2). The government alleged in a Notice of Sentencing Enhancement that petitioner had been convicted to two prior aggravated felonies: Petty Theft with Priors and Possession of Cocaine.
The government argues that "Petty Theft with Priors" constitutes an aggravated felony as defined by 8 U.S.C § 1101(a)(43)(G), which reads: "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." in the present case, petitioner's presentence report notes that petitioner's sentence for Petty Theft with Priors was "Five years probation, 365 days jail. $500 fine." Because petitioner received at least one year in prison his conviction can be considered an aggravated felony under the federal statute which enhances the sentence for the instance offense.
The second alleged aggravated felony in the Sentence Enhancement is "Possession of Cocaine." According to the government. 18 U.S.C § 1101(a)(43)(B) defines this offense as an aggravated felony — "illicit trafficking in a controlled substance . . ." Although the presentence report indicates that the officers saw the defendant selling drugs, the charge itself does not relate to the sale or purchase of a controlled substance rather the mere possession of one.
While is may appear that the mere possession of a controlled substance is not an aggravated felony under the plain language of the statute, the Tenth Circuit has affirmed that a "state court conviction for felony possession of a controlled substance is an aggravated felony within the meaning of § 1101(a)(43)" because it is a "felony punishable under the Controlled Substances Act ( 21 U.S.C. § 801, et seq.).' U.S. v. Valenzuela-Escalante, 130 F.3d 944, 946 (10th Cir. 1997).
Both felonies alleged by the government are aggravated felonies under the United States Code. Therefore, petitioner was convicted of an aggravated felony sufficient to justify the sentence enhancement under 18 U.S.C. § 1326(b).
B. The Constitutionality of 8 U.S.C. § 1326
As stated in the Court's previous order requiring the government to respond, the gravamen of petitioner's position is that the Supreme Court case of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998) does not apply to him or that it has been effectively overruled. Petitioner argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) controls this case, and points out that in Apprendi the Supreme Court called into question its prior holding inAlamendarez-Torres.
It is the government's position that Tenth Circuit has "consistently held that the government need not allege in the Indictment or prove beyond a reasonable doubt the existence of an aggravated felony in order to invoke the enhancement provisions of 8 U.S.C. § 1326 (b)." (Gov. Response at 5). The government gives a list of cites wherein the Tenth Circuit has concluded that a prior conviction is not an element of the offense of illegal reentry under 8 U.S.C. § 1326 that must be proved beyond a reasonable doubt, but is instead a sentencing factor based on recidivism. See United States v. Martinez-Vallalva, 232 F.3d 1329, (10th Cir. 2000); United States v. Jones, 30 Fed. Appx. 924, 2002 WL 343380 (10th Cir. 2002); United States v. Nava-Hernandez, 30 Fed. Appx. 756, 2002 WL 110316 (10th Cir. 2002); United States v. Perez-Aguirre, 49 Fed. Appx. 235, 2002 WI. 31323386 (10th Cir. 2002). The government also points out that the petitioner was advised of his aggravated felonies and he admitted to them in his plea.
It is clear that despite the Court's concern regarding severity of the sentence, the lack of pleading in the Indictment and the enhancement without presentation to a jury to establish proof beyond a reasonable doubt, both the Tenth Circuit and the United States Supreme Court endorse the kind of sentence enhancement that petitioner contests. Therefore, the Court concludes that 8 U.S.C. § 1326 is not unconstitutional and petitioner's argument that prior convictions need to be proved beyond a reasonable doubt is without merit.
In addition, petitioner's 5th and 6th Amendment rights were not violated because the previous felony convictions had their own procedural safeguards and petitioner admitted the allegations in his Statement in Advance of Plea of Guilty. The Apprendi Court's explanation is applicable here:
Both the certainty that procedural safeguards attached to any "fact" of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that "fact" in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a "fact" increasing punishment beyond the maximum of the statutory range.530 U.S. at 488, 120 S.Ct. at 2362.
C. In effective Assistance of Counsel
The final argument petitioner makes for vacating or modifying his sentence is ineffective assistance of counsel. The standard for proving ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted form a breakdown in the adversary process that renders the result unreliable.Id. at 687, 2064.
While petitioner alleges that his counsel was ineffective in assisting him, he offers no facts in support of either the deficient performance of his attorney or that the result would have been different absent the alleged deficiency. Because petitioner does not make the requisite showing this Court finds no reason to vacate or modify petitioner's sentence based on the allegation of ineffective assistance of counsel.
III. Conclusion
The indictment of petitioner for illegal reentry of a deported alien in violation of 8 U.S.C. § 1326 was not defective because it failed to allege any prior felony convictions. The Tenth circuit case law supports the proposition that prior convictions need not be alleged in an indictment nor do they need to be proved to a jury beyond a reasonable doubt. Further, petitioner's sentence enhancement under 8 U.S.C. § 1326 (b) was not contrary to the Constitution and remains supported by current case law. Petitioner fails to offer sufficient evidence in support of his claim for ineffective assistance of counsel.
Petitioner offers no grounds for which his sentence may be vacated, set aside or modified and therefore petitioner's motion is hereby
DENIED.
IT IS SO ORDERED.