March 6, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a motion to vacate, set aside or correct the sentence brought by a federal prisoner pursuant to 28 U.S.C. § 2255.
Parties: At the time of filing this § 2255 motion, Movant was confined at the Federal Correction Institution in Seagoville, Texas. He is presently confined at 2001 Rickbaugh Drive, Big Spring, Texas 79720.
Statement of the Case: On October 3, 2000, Movant was charged by indictment with a single count of illegal reentry after deportation in violation of 8 U.S.C. § 1 326(a) and (b)(2), to which he pled guilty pursuant to a plea agreement On February 14, 2001, the District Court sentenced Movant to seventy-seven months imprisonment pursuant to § 1326(b)(2), which permits enhancement of a sentence based on a finding of a prior aggravated felony. The District Court also sentenced Defendant to a supervised-release term of three years. Movant did not appeal.
Section 1326(a) provides that the maximum sentence shall be a fine and/or imprisonment up to two years. Section 1326(b)(2) increases the maximum penalty to a fine and/or imprisonment up to twenty years if the removal of the defendant was preceded by a conviction for an aggravated felony.
In the present motion, Movant claims he should have been sentenced under § 1326(a) because his prior aggravated felony was not charged in the indictment as he claims is required by Apprendi v. New Jersey, 530 U.S. 466 (2000). While Movant acknowledges his claim is foreclosed byAlmendarez-Torres v. United States, 523 U.S. 224 (1998), he urges the court to consider the continued viability of Almendarez-Torress in light of Apprendi.
Findings and Conclusions. Rule 4(b), of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading.
A defendant can waive his right to appeal and to seek post-conviction relief as part of a plea agreement. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). However, this waiver must be informed and voluntary. The trial court must ensure that the defendant fully understands these rights and the consequences of a waiver. Id. at 653 (citing United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992), cert. denied. 508 U.S. 956 (1993)).
The plea agreement contains a waiver of post-conviction remedies. The agreement provides, in relevant part, that:
[Movant] hereby expressly waives the right to appeal his sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742; and (Movant] further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255. However, [Movant] reserves the right to appeal the following: (a) any punishment imposed in excess of a statutory maximum, (b) any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court, and (c) arithmetic errors in the guidelines calculations; and (d) a claim of ineffective assistance of counsel.
(Plea Agreement § 10).
In his § 2255 motion, Movant neither challenges the voluntary nature of his plea nor of the waiver of post-conviction remedies set out above. Therefore, Movant has waived his right to directly challenge the legality of his sentence in this § 2255 proceeding. While he reserved his right to challenge ineffective assistance of counsel, he does not claim that his attorney did anything wrong. Assuming arguendo that Movant's § 2255 motion raises ineffective assistance of counsel, the claim is meritless in light of the Supreme Court and Fifth Circuit cases discussed more fully below.
In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court held that § 1326(b) "is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist." The Court explained that § 1326(b) "does not define a separate crime. Consequently, neither the statute nor the Constitution requires the Government to charge the factor that it mentions, an earlier conviction, in the indictment." Id.
Relying on Almendarez-Torres, the Fifth Circuit Court of Appeals has held that the district court does not have to inform a defendant who is pleading guilty to illegal reentry that the "aggravated felony" provision in § 1326(b)(2) is an essential element of his sentencing. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001). In so ruling, the Fifth Circuit noted that the Supreme Court's decision in Apprendi had expressly declined to overrule Almendarez-Torres and, thus, that it had a duty to follow itId.; see also United States v. Rodriguez-Montelongo, 263 F.3d 429, 434 (5th Cir. 2001); United States v. Landeros-Gonzales, 262 F.3d 424. 426 n. 1 (5th Cir. 2001); United States v. Moreno-Arredondo, 255 F.3d 198, 200 n. 1 (5th Cir.), cert. denied, 122 S.Ct. 491 (2001); United States v. NavaPerez, 242 F.3d 277, 279 (5th Cir.), cert. denied, 121 S.Ct. 2537 (2001).
For the foregoing reasons it is recommended that the District Court summarily dismiss the motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. See Rule 4(b) of the Rules Governing § 2255 Cases.
A copy of this recommendation will be mailed to Movant.