United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
This case comes before the undersigned United States Magistrate Judge on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Docket Entry 27) (hereinafter "Section 2255 Motion"). For the reasons that follow, the Court should deny Petitioner's Section 2255 Motion.
This Court (per United States District Catherine C. Eagles) entered a Judgment against Petitioner imposing, inter alia, a prison term of 57 months, upon his guilty plea to unlawful presence in the United States following deportation after conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). (Docket Entry 13; see also Docket Entry 1 (Indictment); Docket Entry 11 (Plea Agreement); Docket Entry dated Jan. 13, 2012 (documenting guilty plea); Docket Entry dated June 7, 2012 (documenting sentencing); Docket Entry 19 (Plea Hrg. Tr.); Docket Entry 20 (Sent'g Hrg. Tr.).) The United States Court of Appeals for the Fourth Circuit affirmed. United States v. Garcia-Rodriguez, No. 12-4472, 2013 WL 935791 (4th Cir. Mar. 12, 2013) (unpublished). Petitioner thereafter timely filed his instant Section 2255 Motion (Docket Entry 27), along with a supporting memorandum (Docket Entry 28). The United States responded (Docket Entry 32) and Petitioner replied (Docket Entry 34).
Petitioner's Section 2255 Motion nominally asserts four grounds for relief (i.e., "Ineffective Assistance of Counsel" (Docket Entry 27, ¶ 12(A)), "Court's Abuse of Discretion" (id., ¶ 12(B)), "Unconstitutional Sentence" (id., ¶ 12(C)), and "Illegal Sentence" (id., ¶ 12(D))), but all four grounds concern the same basic contention, i.e., Petitioner's counsel and the Court should have recognized that, pursuant to U.S.S.G. § 4A1.2(e)(1) & (3), Petitioner's prior burglary convictions should not have received criminal history points under U.S.S.G. § 4A1.1, such that he would have fallen in Criminal History Category I (rather than IV) and therefore would have faced an advisory sentencing range of 37 to 46 months (rather than 57 to 71 months) (see Docket Entry 27, ¶ 12(A)-(D); Docket Entry 28 at 1-15). That contention lacks merit and thus Petitioner's Section 2255 Motion fails as a matter of law.
The Indictment in this case charged that, "[o]n or about October 23, 2011, ... [while] an alien who had previously been deported and removed from the United States... subsequent to conviction for the commission of an aggravated felony, [Petitioner] was found in the United States... having not obtained the consent of the [proper official], to reapply for admission into the United States." (Docket Entry 1 at 1.) The Factual Basis filed in support of Petitioner's guilty plea (which he and his counsel signed (Docket Entry 10 at 3)) states, inter alia, as follows:
On February 5, 1991, [Petitioner] was convicted in the Los Angeles County Superior Court, for the offense Second Degree Residential Burglary in violation of California Penal Code Section 459, and was sentenced to one hundred-eighty days confinement with thirty six months probation.
On September 2, 1992, [Petitioner] was convicted in the Los Angeles County Superior Court, for the offense of First Degree Residential Burglary in violation of California Penal Code Section 459, and was sentenced to two years confinement.
On October 12, 1993, [Petitioner] was served Immigration form I-221, Order of Show Cause Order.
On October 18, 1993, [Petitioner] was ordered deported by an immigration judge in San Diego, California.
On October 19, 1993, [Petitioner's] form I-205, Warrant of Removal/Deportation was executed upon him and he was removed from the United States to the country of Mexico at the Otay Mesa port of entry, California. On his warrant was placed his signature and fingerprint. He was given his Warning to Alien Order Removed or Deported.
On August 5, 1997, [Petitioner] illegally attempted to reenter the United States at or near Falfurrias, Texas, and was voluntarily ...