United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION AND ORDER
R WILHOIT. JR., UNITED STATES DISTRICT JUDGE.
inmate Juan Jose Hidalgo has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. [D. E. No.
1] This matter is before the Court to conduct an initial
screening of Hidalgo's petition. 28 U.S.C. § 2243;
Alexander v. Northern Bureau of Prisons, 419
Fed.Appx. 544, 545 (6th Cir. 2011).
2008, a jury in El Paso, Texas found Hidalgo guilty of
various drug and money laundering charges for his role in a
large drug trafficking ring. Prior to trial, the government
filed a notice pursuant to 21 U.S.C. § 851 which
indicated that Hidalgo had one prior conviction for drug
possession. Because Hidalgo's federal conviction under 21
U.S.C. § 841(a) came "after a prior conviction for
a felony drug offense has become final, " his mandatory
minimum sentence increased from ten to twenty years
imprisonment. 21 U.S.C. § 841(b)(1)(A). However, even
without the application of that provision, Hidalgo had an
Offense Level of 38 and a Criminal History Category of II,
resulting in a discretionary guidelines range of 262 to 327
months imprisonment [D. E. No. 1 at 17-19], more than the
the sentencing hearing held in October 2008, a two-level
adjustment to the guidelines range was made for use of a
special skill, but no career offender enhancement was applied
under U.S.S.G. § 4B1.1 (a). The resulting guidelines
range was 324 to 405 months imprisonment. The trial court
then departed from the guidelines and imposed a 288-month
sentence, well below the applicable guidelines
range. United States v. Hidalgo, No. 3:
07-CR-1624-PRM-17 (W.D. Tex. 2007).
Fifth Circuit rejected Hidalgo's challenges to both his
convictions and sentence on direct appeal. U.S. v.
Hidalgo, 385 Fed.Appx. 372 (5th Cir. 2010). In 2012, the
trial court denied Hidalgo's motion for relief under 28
U.S.C. § 2255 as untimely. In March 2016, the trial
court reduced Hidalgo's sentence to 262 months
imprisonment pursuant to Amendment 782 of the sentencing
§ 2241 petition, Hidalgo contends that the enhancement
of his sentence based upon his prior drug conviction was
improper in light of Descamps v. United States,
U.S., 133 S.Ct. 2276 (2013) and Mathis v. United States,
___ U.S.___, 136 S.Ct. 2243 (2016). [D. E. No. 1 at
preliminary matter, Hidalgo may not challenge his sentence in
a § 2241 petition because it was imposed in 2008 after
the Supreme Court's decision in United
States v. Booker, 543 U.S. 220 (2005) rendered the
sentencing guidelines advisory rather than mandatory.
Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir.
claim is also substantively without merit. Descamps
held that when a federal trial court determines whether to
apply the career offender enhancement found in 18 U.S.C.
§ 924(e)(1), it may only consult Shepard
materials when the prior conviction sought to be used as a
predicate offense was committed under a divisible statute,
meaning one that defines multiple offenses.
Descamps, 133 S.Ct. at 2283-85. For its part,
Mathis reminded courts that a statute is not
divisible merely because it describes alternative factual
means to commit a single offense. Mathis, 136 S.Ct.
Descamps and Mathis involved enhancements
under § 924(e), and their holdings are applicable to
enhancements under the functionally-identical guidelines
counterpart found in U.S.S.G. § 4B1.1 (a). But
Hidalgo's sentence was not enhanced under either of these
provisions. Instead, his sentence was enhanced under the far
simpler provision found in 21 U.S.C. § 841(b)(1)(A)
because he had previously committed a "felony drug
offense." To qualify as a "felony drug offense,
" no detailed comparison of elements is required.
Rather, 21 U.S.C. § 802(44) merely requires that the
prior state or federal offense (1) be punishable by more than
one year in prison, and (2) that it "prohibits or
restricts conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant
terms, § 802(44) does not require that the prior offense
constitute any particular species of crime, but only that it
"relatfe] to" conduct involving drugs. Given the
breadth of this definition the use of the categorical
approach is neither necessary nor appropriate. See United
States v. Graham, 622 F.3d 445, 456-57 (6th Cir. 2010);
United States v. Spikes, 158 F.3d 913, 932 (6th Cir.
1998) ("[Section] 802(44) only requires that the state
statute criminalize conduct 'relating' to drugs. The
use of the expansive term 'relating' as the only
substantive limitation on the reach of the statutory phrase
'felony drug offense' clearly indicates that the
statute encompasses drug offenses that involve the simple
possession of drugs."), cert. denied, 525 U.S.
1086 (1999). The more complex analysis involved in cases
governed by Descamps and Mathis is simply
not relevant to Hidalgo's circumstances.
each of these reasons, Hidalgo's petition fails to
establish any basis for habeas relief. Cf. United States
v. Smith, No. 1:12-CR-88-l, 2017 WL 3528954, at *5-6
(W.D. La. July 11, 2017) (rejecting the exact argument
pressed here and correctly noting that "[t]he
categorical approach in Moncrieffe and
Taylor has never been applied to the enhanced
penalty provisions of § 841(b)(1)(A) and has never been
used to interpret the phrase 'felony drug offense' in
21 U.S.C. § 802(44).") (citing United States v.
Wing, No. 5:13-CR-87-JMH, 2016 WL 3676333, at *2 (E.D.
it is ORDERED as follows:
1. Hidalgo's petition for a writ of habeas corpus [R. 1]
2. The Court will enter a judgment contemporaneously with