Olvera v. USA, No. 5:2014cv00005 - Document 3 (S.D. Tex. 2014)

Court Description: MEMORANDUM OPINION dismissing 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 5:07-CR-1711 (Defendant No. 2) (Signed by Judge George P. Kazen) Parties notified. (dmorales, 5)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION § § § § § § § UNITED STATES OF AMERICA vs. FRANCISCO JAVIER OLVERA, JR. Civ. Action No. L-14-5 Crim. Action No. L-07-1711 MEMORANDUM OPINION Pending before the Court is the Defendant s §2255 Motion (Crim. Dkt. 111) and its supporting memorandum (Crim. Dkt. 112), filed on January 13, 2014. On September 25, 2008, Defendant was sentenced to 240 months imprisonment after pleading guilty to conspiracy to possess with intent to distribute more than 100 kilograms of marihuana. (Crim. Dkt. 96.) He did not appeal his conviction. In this §2255 Motion, the Defendant s sole argument is that a jury, not the Court, should have determined whether he had a prior conviction that increased his mandatory minimum sentence. (Crim. Dkt. 111, 112.) His Motion is untimely and will be dismissed. The Defendant filed his §2255 Motion more than five years after his conviction became final. Motion would be time-barred. Therefore, ordinarily, his 28 U.S.C. §2255(f)(1). However, Defendant maintains that the Motion is timely because it relies on a right initially recognized by a new Supreme Court decision, Alleyne v. United States, 133 S.Ct. 2151 (2013). §2255(f)(3). See 28 U.S.C. In Alleyne, the Supreme Court overruled a previous case and held that any fact that increases a mandatory minimum sentence must be decided by a jury. Alleyne, 133 S.Ct. at 2155. The Court found that this result was required by Apprendi v. New Jersey, 120 determine S.Ct. any 2348 facts (2000), that which increase held the that a prescribed penalties to which a criminal defendant is exposed. jury must range of Alleyne, 133 S.Ct. at 2160 (quoting Apprendi, 120 S.Ct. 2348). However, Alleyne acknowledged that the Court had already recognized a narrow exception to this general rule for the fact of a prior conviction, and the Court specifically stated that it was not revisiting that exception. Alleyne, 133 S.Ct. at 2160 exception n.1. Therefore, convictions still exists. this narrow for prior See United States v. Fuentes-Ulloa, 2013 WL 6843014, at *1 (5th Cir. 2013) (per curiam) (unpublished but persuasive) (finding that Alleyne did not alter the priorconviction exception). Here, the Defendant s sole issue that his prior conviction should have been determined by a jury falls within the narrow exception recognized by Alleyne. Therefore, even after Alleyne, the Defendant would not be entitled to a jury finding on the fact of his prior conviction. 2/3 Alleyne thus did not create any new right as asserted by the Defendant, and therefore does not restart the statute of limitations for bringing a §2255 motion. See 28 U.S.C. §2255(f)(3). For the foregoing reasons, the Defendant s §2255 Motion (Crim. Dkt. 111) has no merit and will be dismissed. DONE at Laredo, Texas, this 4th day of February, 2014. ___________________________________ George P. Kazen Senior United States District Judge 3/3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.