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Lopez v. United States

United States District Court, C.D. Illinois, Peoria Division

June 25, 2019

ALEJANDRO M. LOPEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND OPINION

          JAMES E. SHADID, UNITED STATES DISTRICT JUDGE

         This cause is before the Court on Petitioner Alejandro M. Lopez's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 1).[1] A hearing on the Motion is not required because “the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.” Hutchings v. United States, 618 F.3d 693, 699-700 (7th Cir. 2010) (quotation omitted). Because Petitioner is not entitled to relief, the § 2255 motion is DENIED.

         I. BACKGROUND

         In March 2016, Lopez was charged with possession with intent to distribute a mixture containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 1); and distribution of a mixture and substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 2). R. 1.

         On July 21, 2016, Lopez entered a guilty plea to both counts of the Indictment without a plea agreement. See R. July 21, 2016 Minute Entry. At the change of plea hearing, Lopez was placed under oath. Plea Tr., R. 21 at 1. He acknowledged that he had received a copy of the indictment, had reviewed it with his counsel, and was “very” satisfied with his counsel. Id. at 4. The Court read the charges and the potential penalties pursuant to the statute, and Lopez stated he understood them. Id. at 5-8. The Court also explained the constitutional rights that Lopez would be waiving by pleading guilty. Id. at 8-9. The Government then stated the factual basis for the plea, and Lopez acknowledged that the facts were correct. Id. at 10-11.

         Defense counsel advised the Court that he had discussed the sentencing guidelines and their application to Lopez, and estimated that “Mr. Lopez is almost certainly going to be considered a career offender under the guidelines and will face a range of 188 to 235 months imprisonment.” Plea Tr., R. 21 at 12.

         Lopez proceeded to plead guilty to Counts 1 and 2 of the Indictment. Id. at 15. The Court accepted the plea:

I find that you're fully competent and capable of entering an informed plea; that you're aware of the nature of the charges and the consequences of the plea.
That the plea of guilty as to each count is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offense.
The plea is, therefore, accepted. You are now adjudged guilty of that offense.

Id.

         The United States Probation Office prepared a Presentence Investigation Report (“PSR”). PSR, R.10. The PSR concluded that Lopez qualified as a career offender under the sentencing guidelines. PSR, R.10 at ¶ 28. A defendant is subject to the career sentencing enhancement if he has “at least two prior felony convictions of either a crime of violence or a controlled substances offense.” See U.S.S.G. § 4B1.1(a). Here, the PSR concluded that Lopez had three qualifying offenses: (1) a 2009 Illinois aggravated battery conviction; (2) a 2010 Illinois methamphetamine manufacturing conviction; and (2) a 2014 Illinois aggravated battery conviction. Id. at ¶¶ 37, 39, 42. The PSR calculated Lopez's advisory guidelines range as 151 to 188 months' imprisonment. Id. at ¶ 89.

         At the sentencing hearing on December 1, 2016, defense counsel argued that Lopez's aggravated battery convictions did not qualify as crimes of violence, and, therefore, Lopez should not be sentenced as a career offender. Sent. Tr., R. 22, 3-7, 13-15. The Court overruled the objection and found that “the current state of law in the Seventh Circuit would find that these are crimes of violence.” Id. at 15. The Court sentenced Lopez to 151 months' imprisonment on each count to be served concurrently, 3 years of supervised release, no fine, and a $200 special assessment. Id. at 34-38; Judgment, R. 16.

         Lopez appealed his sentence, arguing he should not have been classified as a career offender because Illinois aggravated battery is not a crime of violence for purposes of U.S.S.G. § 4B1.1. United States v. Lopez, 692 Fed.Appx. 302 (7th Cir. 2017). While his appeal was pending, the Seventh Circuit held in United States v. Lynn, 851 F.3d 786 (7th Cir. 2017), that the Illinois aggravated battery statute was divisible. Citing Lynn, the Seventh Circuit found that because Lopez was charged with aggravated battery because he ...


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