MEMORANDUM OPINION AND ORDER
KATHLEEN CARDONE, District Judge
Before the Court is Movant Amador Fraire-Gonzalez's ("Fraire") pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence [Docket No. 34]. Therein, Fraire challenges his seventy-seven-month sentence for illegal reentry into the United States. After reviewing the record and for the reasons discussed below, the Court concludes that Fraire has failed to establish his entitlement to § 2255 relief. The Court will accordingly deny his motion and dismiss his civil cause with prejudice. It will additionally deny Fraire a certificate of appealability.
"Docket" in this context refers to the criminal docket in cause number EP-06-CR-1701-KC.
FACTUAL AND PROCEDURAL HISTORY
On August 21, 2006, an informant called Border Patrol Senior Patrol Agent Johnny Cardenas and told him that he could find undocumented aliens in room 225 of the Super 8 Motel in Anthony, Texas. Agent Cardenas and Border Patrol Senior Patrol Agent Jonathan Benway proceeded to the motel. Agent Benway knocked on the door and an individual, later identified as Fraire, answered. The agents determined that Fraire was a citizen of Mexico and that he did not have any immigration documents to show that he was legally present in the United States. The agents took Fraire and two other men found in the room into custody and transported them to the Santa Teresa, New Mexico, Border Patrol Station for processing. A records check revealed that federal authorities had removed Fraire from the United States on three prior occasions and that Fraire had an extensive criminal history. The records also showed that Fraire had not received permission from the Attorney General or the Secretary of Homeland Security to reapply for admission into the United States.
A grand jury sitting in the Western District of Texas, El Paso Division, indicted Fraire for unlawfully reentering the United States, in violation of 8 U.S.C. § 1326. Under 8 U.S.C. § 1326(a), the offense was punishable by a maximum term of two years of imprisonment and one year of supervised release. With the indictment, however, the Government filed notice that it would seek an increased penalty, pursuant to 8 U.S.C. § 1326(b)(2), based on a prior conviction and two-year sentence imposed by a California court for possession of marijuana for sale, in violation of California Health and Safety Code § 11351. Section 1326(b)(2) triggered an increase in the statutory maximum imprisonment term from two to twenty years, and a corresponding increase in the statutory maximum supervised release term from one to three years.
Gov't's Resp. to Mot. to Vacate Ex. J (Abstract of Judgment, State v. Gonzalez Fraire, CR133129 (Cal. Super. Ct. San Diego County May 12, 1995)) [Docket No. 37].
Fraire elected to forego trial, appeared before the Court with his appointed counsel, and pleaded guilty to the indictment. The Court accepted Fraire's plea and referred his case to the United States Probation Office for a presentence report. In the report, a probation officer recommended a sixteen level enhancement based on Vargas's prior conviction in California for a "drug trafficking offense." The probation officer also noted Fraire had prior convictions for voluntary manslaughter, possessing a controlled substance, vehicle theft, vandalism, exhibiting a firearm, carrying a concealed weapon, possessing a forged instrument, and illegal reentry. After reviewing the presentence report, Fraire's counsel did not object to the characterization of Fraire's California conviction for possession of marijuana for sale as a drug trafficking offense or the inclusion of the sixteen level enhancement. The Court accordingly determined that, under the advisory Sentencing Guidelines, Fraire had a total offense level of twenty, a criminal history category of VI, and an imprisonment range of seventy-seven to ninety-six months. The Court then sentenced Fraire at the bottom of the Sentencing Guidelines range to seventy-seven months' imprisonment followed by three years' non-reporting supervised release.
Id. Ex. F, p. 3 (Presentence Investigation Report).
Id. Ex. E, pp. 7-8 (Sentencing Tr.).
On appeal, Fraire argued that, because the indictment did not allege a prior conviction, the penalty for the offense to which he pleaded guilty was limited to imprisonment for two years and supervised release for one year. Fraire acknowledged that his argument was foreclosed by Almendarez-Torres v. United States, but, relying on the more recent decision in Apprendi v. New Jersey, raised the argument to preserve it for possible Supreme Court review. In an unpublished opinion, the Fifth Circuit Court of Appeals explained that 8 U.S.C. § 1326(b)(2) was a penalty provision, not a separate criminal offense, and affirmed the Court's judgment.
523 U.S. 224, 235 (1998) ("In sum, we believe that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.").
530 U.S. 466, 487 (2000) (suggesting that Almendarez-Torres represents "at best an exceptional departure from the historic practice").
United States v. Fraire-Gonzalez, 253 F.App'x 422 (5th. Cir. 2007) (unpublished), cert. denied, Bat v. United States, 552 U.S. 1272 (2008).
Mindful of Fraire's pro se status, the Court has liberally read his instant § 2255 motion. The Court understands him to assert three grounds for relief. First, he claims his sentence exceeded the maximum permissible penalty. Second, he maintains the sentencing factors in 18 U.S.C. § 3553(a) warranted a lower sentence. Third, he asserts his counsel provided ineffective assistance due to the cumulative effect of failing to (1) object to the sixteen-level enhancement, (2) raise an effective argument for a lesser sentence based on his inability to receive a downward adjustment under a "fast track" program, or (3) obtain a variance under § 3553.
See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se pleadings to less stringent standards than formal pleadings drafted by lawyers); see also Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (explaining liberal construction allows active interpretation of a pro se pleading to encompass any allegation which may raise a claim for federal relief).
U.S. SENTENCING GUIDELINES MANUAL § 5K3.1 (2006) ("Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides.").
LEGAL STANDARD
A. 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that the defendant stands fairly and finally convicted." Accordingly, "`[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Typically, before a court will grant relief pursuant to § 2255, the movant must establish: "(1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack."
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (quoting United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994)).
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, a collateral challenge to a conviction or sentence should not serve as a substitute for a direct appeal. When raising issues of jurisdictional or constitutional magnitude for the first time in a motion seeking collateral relief, a movant must either (1) demonstrate "cause" for not raising the issue on direct appeal and "actual prejudice" resulting from the error, or (2) show that he is "actually innocent" of the crime for which he was convicted. The cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard . . . applied on direct appeal." If the movant does not meet either burden, then he is procedurally barred from attacking his conviction or sentence. This procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. B. Ineffective Assistance of Counsel
Frady, 456 U.S. at 165; United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991).
United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999).
Gaudet, 81 F.3d at 589.
United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992).
See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).
The United States Constitution's Sixth Amendment guarantees an accused the right to the assistance of counsel for his defense in all criminal prosecutions. Moreover, "the right to counsel is the right to the effective assistance of counsel." "[I]neffective assistance claims are ordinarily brought for the first time on collateral review because of the difficulty of compiling an adequate record by the time of direct appeal." To merit relief on an ineffective assistance of counsel claim, a movant must demonstrate both (1) that his "counsel's performance was deficient," and (2) that "the deficient performance prejudiced the defense." A failure to establish either prong of this test requires a finding that counsel's performance was constitutionally effective.
U.S. CONST. amend. VI.
McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).
Gaudet, 81 F.3d at 589 n. 5.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing the Strickland standard of review).
See Strickland, 466 U.S. at 687 ("Unless a defendant makes both showings, it cannot be said that the conviction or . . . sentence resulted from a breakdown in the adversary process that renders the result unreliable."); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim."); Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) ("A court need not address both components of the inquiry if the defendant makes an insufficient showing on one.").
The test's performance prong centers on whether counsel's assistance was reasonable, considering all the circumstances at the time of counsel's conduct. In order to obtain relief, a movant must establish "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." In assessing whether a particular counsel's performance was constitutionally deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" A deficiency in counsel's performance, even if professionally unreasonable, does not equal ineffective assistance of counsel; the movant must also demonstrate actual prejudice. The test's prejudice prong requires the movant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
See Strickland, 466 U.S. at 688 ("The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.").
Id. at 687.
Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
See id. at 691-92 ("The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.").
Id. at 694.
With these principles in mind, the Court turns to the merits of Fraire's claims.
ANALYSIS
A. Maximum Sentence
Fraire asserts the Court erred when it imposed a sentence above the two-year statutory maximum in 8 U.S.C. § 1326(a). The Fifth Circuit rejected this claim in its opinion affirming the Court's judgment. It explained "that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense." "[I]ssues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions." Accordingly, the Court will dismiss this claim without further consideration of its merits.
Fraire-Gonzalez, 253 F.App'x 422 at **1 (citing United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, Pineda-Arrellano v. United States, 552 U.S. 1103 (2008)).
See United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) ("It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions.").
B. Sentencing Factors
Fraire also maintains the sentencing factors outlined in 18 U.S.C. § 3553(a) warranted a lower sentence. By this claim, Fraire challenges the Court's imposition of a seventy-seven-month sentence on the grounds that the Court abused its discretion in determining that the factors set forth in § 3553(a) did not support a downward departure from the Sentencing Guidelines range.
According to § 3553(b), a sentencing judge should generally impose a sentence within the Sentencing Guidelines range after taking into account the defendant's offense conduct and criminal record.
Section 3553 . . . specifies several factors for sentencing judges to follow in determining a sentence. One of the factors is the applicable provisions of the Guidelines. Subsection 3553(b)(1) generally requires the sentencing judge to impose a sentence within the range as calculated by the Guidelines, taking into account the facts of the defendant's offense conduct and the defendant's criminal record. The sentencing judge is permitted to select a sentence above or below the Guideline range only if the judge finds circumstances "not adequately taken into consideration by the Sentencing Commission."
Fraire's counsel sought a downward adjustment to his sentence because, according to Fraire, severe flooding in Juarez, Chihuahua, caused him to illegally reenter the United States. The Court found this argument unpersuasive, and, "based on the information available to me, the circumstances of this case, and your particular circumstances, in keeping with the goals of the Sentencing Guidelines, and the factors of 3553(a)," sentenced Fraire to seventy-seven months in prison.
Gov't's Resp. to Mot. to Vacate Ex. H, pp. 3-6 (Sentencing Tr.) [Docket No. 37].
Id. Ex. H, p. 7.
When claims of constitutional or jurisdictional import are not raised on direct appeal, the claims are procedurally defaulted, and can only be considered in a § 2255 proceeding if a movant can show cause for his failure to raise his claims on appeal, and actual prejudice resulting from the alleged errors. Alternatively, procedurally defaulted claims can be considered for the first time in a § 2255 proceeding if the movant can show that he is actually innocent. However, "[n]onconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding." Where, as here, a movant alleges a court erroneously applied the Sentencing Guidelines or failed to consider the § 3553(a) sentencing factors, he does not assert a constitutional or jurisdictional claim of error; he asserts an error in the application of statutory law. Such a claim is not cognizable under the limited scope of § 2255 because it is not of constitutional dimension and it could have been raised on direct appeal. Accordingly, the Court will dismiss this claim as procedurally barred without further consideration of its merits.
United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996); Gaudet, 81 F.3d at 589.
See Bousley v. United States, 523 U.S. 614, 622 (1998) ("Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either `cause' and actual `prejudice' . . . or that he is `actually innocent.'") (quoting Murray v. Carrier, 477 U.S. 478, 485, 496 (1986)).
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (citing United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981)).
Grant v. United States, 72 F.3d 503, 505-6 (6th Cir. 1992); Vaughn, 955 F.2d at 368; United States v. Payne, 99 F.3d 1273, 1281 (5th Cir. 1996).
C. Ineffective Assistance of Counsel
Finally, Fraire asserts his counsel provided ineffective assistance due to the cumulative effect of failing to (1) object to the sixteen-level enhancement, (2) raise an effective argument based on his inability to receive a downward adjustment under a "fast track" program, or (3) obtain a variance under § 3553. According to Fraire:
No reasonably competent counsel, in light of a sixteen (16)-point enhancement would have failed to object. . . . Additionally, counsel's failure at sentencing to raise a cogent and affirmative argument regarding `disparity' of sentencing in light of petitioner's inability to receive a "fast track" sentence irreparably harmed petitioner. . . . Finally, and perhaps most
egregiously, counsel's failure to properly raise . . . the tenets of § 3553(a) [irrevocably prejudiced his cause].
The presentence report explained that Fraire had a prior conviction for possession of a controlled substance in violation of California Health and Safety Code § 11351. A § 11351 violation is considered a "drug trafficking offense" for the purposes of Sentencing Guideline § 2L1.2(b)(1)(A)(i). According to § 2L1.2(b)(1)(A)(i), a Court may enhance the base offense level by sixteen levels "[i]f the defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony that is . . . a drug trafficking offense for which the sentence imposed exceeded 13 months[.]" In this case, the Court was satisfied that the documentation supporting the California conviction met the standard of proof required. The Court accordingly determined under the advisory Sentencing Guidelines that Fraire had a total offense level of twenty, a criminal history category of VI, and an imprisonment range of seventy-seven to ninety-six months. Moreover, as Fraire's trial counsel explained, the Court could have used a second conviction enhance Fraire's sentence by sixteen levels.
There was also the second conviction that could have been used to enhance his sentence as to a crime of violence: Voluntary Manslaughter. I believed that even if we prevailed with the categorical approach with the Possession for Sale conviction, the government would surely use the Voluntary Manslaughter conviction.
Gov't's Resp. to Mot. to Vacate Ex. F, p. 3 (Presentence Investigation Report); Ex. J (Abstract of Judgment, State v. Gonzalez Fraire, CR133129 (Cal. Super. Ct. San Diego County May 12, 1995)) [Docket No. 37].
United States v. Palacios-Quinonez, 431 F.3d 471, 473-76 (5th Cir. 2005); see also United States v. Gutierrez-Cruz, 265 F.App'x 561, 561-62 (9th Cir. 2008) (unpublished) ("The district court also did not err in imposing a 16-level sentence enhancement, pursuant to U.S.S.G. [United States Sentencing Guideline] § 2L1.2(b)(1)(A)(i), based on its finding that Gutierrez-Cruz's prior conviction under California Health and Safety Code § 11351 categorically qualified as a drug trafficking offense.").
U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(i) (2006).
Gov't's Resp. to Mot. to Vacate Ex. E, pp. 7-8 (Sentencing Tr.) [Docket No. 37].
Under these circumstances, trial counsel's objection to a sixteen-level enhancement would have been unavailing. The failure of trial counsel to urge a futile objection does not "prejudice" a defendant because there is no reasonable probability of a different outcome. Accordingly Fraire is not entitled to relief on this claim.
See United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) ("An attorney's failure to raise a meritless argument thus cannot form the basis of a successful ineffective assistance of counsel claim because the result of the proceeding would not have been different had the attorney raised the issue.").
The Fifth Circuit has rejected Fraire's "fast-track" argument, holding that "any disparity in sentencing between fast-track and non-fast-track jurisdictions is a function of Congressional policy and thus is not `unwarranted' under § 3553(a)(6)." "Congress gave the Attorney General the discretion to establish programs where he thinks they are needed." Further, there is no equal protection violation "because the fast-track program does not implicate either a suspect class or a fundamental right." Accordingly, counsel's failure to make the argument was reasonable, considering all the circumstances at the time of counsel's conduct, and Fraire is not entitled to relief on this claim.
United States v. Lopez-Velasquez, 526 F.3d 804, 808 (5th Cir. 2008).
United States v. Gomez-Herrera, 523 F.3d 554, 560 (5th Cir. 2008).
Lopez-Valasquez, 526 F.3d at 808.
Finally, Fraire's counsel sought a variance under § 3553. She asserted flooding conditions in Juarez, Chihuahua, caused Fraire to illegally reenter the United States. As noted above, in order to obtain § 2255 relief on an ineffective assistance of counsel claim, a movant must affirmatively prove his counsel's deficient performance prejudiced his defense. In the case of ineffective assistance at sentencing, a movant must establish prejudice only by demonstrating his attorney's deficient performance contributed to an increase in his sentence. In other words, a movant must show a reasonable probability that, but for his counsel's deficiencies, his sentence would have been less harsh. The prejudice prong "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. A movant cannot satisfy the prejudice prong with mere speculation and conjecture. Conclusory allegations are insufficient to obtain § 2255 relief. Here, Fraire cannot show his attorney's performance contributed to an increase in his sentence. Accordingly, after considering the record, the Court finds he is not entitled to relief on this claim.
Strickland, 466 U.S. at 687.
Glover v. United States, 531 U.S. 198, 200 (2001).
Id.
Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted).
Strickland, 466 U.S. at 695-96.
Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992).
United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989); see also Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (holding that "conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding").
EVIDENTIARY HEARING
A motion brought under § 2255 may be denied without a hearing if the motion, files, and records of the case conclusively show that the defendant is not entitled to relief. The record in this case is adequate to dispose fully and fairly of Fraire's claims. The Court need inquire no further on collateral review and an evidentiary hearing is not necessary.
See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (per curiam) (holding there was no abuse of discretion in denying a § 2255 motion without a hearing where the movant's assertions of ineffective assistance were wholly conclusory in nature and refuted by reference to the record itself).
CERTIFICATE OF APPEALABILITY
A petitioner may not appeal a final order in a habeas corpus proceeding "[u]nless a circuit justice or judge issues a certificate of appealability." Further, appellate review of a habeas petition is limited to the issues on which a certificate of appealability is granted. In other words, a certificate of appealability is granted or denied on an issue-by-issue basis, thereby limiting appellate review solely to those issues on which a certificate of appealability is granted. Although Fraire has not yet filed a notice of appeal, this Court nonetheless must address whether he is entitled to a certificate of appealability.
28 U.S.C.A. § 2253(c)(1)(B) (West 2010).
See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that, in regard to the denial of relief in habeas corpus actions, the scope of appellate review is limited to the issues on which a certificate of appealability is granted).
See 28 U.S.C.A. § 2253(c)(3) (setting forth the narrow scope of appellate review in habeas corpus matters); see also Lackey, 116 F.3d at 151 (holding that a certificate of appealability is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); but see United States v. Kimler, 150 F.3d 429, 431 431 n. 1 (5th Cir. 1998) (explaining that the Fifth Circuit may address an issue not certified by the district court if the movant makes (1) an explicit request and (2) a substantial showing of the denial of a constitutional right).
See 28 U.S.C.A. § 2255 PROC. R. 11(a) (West 2010) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."); Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (explaining that it is appropriate for a district court to address sua sponte the issue of whether it should grant or deny a certificate of appealability, even before one is requested).
A certificate of appealability "may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." In cases where a district court rejects a petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." To warrant a grant of the certificate as to claims that the district court rejects solely on procedural grounds, the movant must show both that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Here, Fraire's motion to vacate fails because he has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court finds it should deny Fraire a certificate of appealability.
28 U.S.C.A. § 2253(c)(2).
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002) (applying Slack to a certificate of appealability determination in the context of § 2255 proceedings).
Slack, 529 U.S. at 484.
CONCLUSION AND ORDERS
For the reasons stated, the Court concludes that it should deny Fraire's motion and dismiss his civil cause. The Court further concludes that Fraire is not entitled to a certificate of appealability. Accordingly, the Court enters the following orders:
1. Movant Amador Fraire-Gonzalez's
pro se motion under
28 U.S.C. § 2255 to vacate, set aside, or correct a sentence [Docket No. 34] is
DENIED and his civil cause is
DISMISSED WITH PREJUDICE.
2. Movant Amador Fraire-Gonzalez is
DENIED a
CERTIFICATE OF APPEALABILITY.
3. All pending motions in this cause, if any, are
DENIED AS MOOT.
SO ORDERED.
SIGNED on this 6th day of October, 2010.
,
502 S.W.2d 774, 780 (Tex.Crim.App. 1973)) (emphasis in original).
Id. (citing Rose v. State, 752 S.W.2d 529, 535 (Tex Crim.App. 1987); Meshell v. State, 739 S.W.2d 246, 252 (Tex.Crim.App. 1987)) (emphasis in original).
Our Legislature, which "declares the public policy of the state," holds the exclusive power to make law. Thus, the Legislature possesses the sole authority to establish criminal offenses and designate applicable penalties. Generally, the Legislature may not delegate its lawmaking power to another branch. However, "[w]hen the Legislature itself cannot practically or efficiently perform the functions required, it has the authority to designate some agency to carry out the purpose of such legislation." So once the Legislature declares a policy and sets a "primary standard," it may authorize an agent to prescribe the necessary details to carry out a law's purpose. A legislative grant of discretionary authority to an agent designated to carry out a legislative policy is proper when the Legislature has set standards for guidance that are capable of reasonable application.
So long as the statute is sufficiently complete to accomplish the regulation of the particular matters falling within the Legislature's jurisdiction, the matters of detail that are reasonably necessary for the ultimate application, operation and enforcement of the law may be expressly delegated to the authority charged with the administration of the statute.
State v. Ruine, 297 S.W.3d 301, 305 (Tex. Crim.App. 2009) (citing State v. Dallas, 319 S.W.2d 767. 774 (Tex.Civ.App.-Austin 1958)); see. also Williams v. State, 146 Tex.Crim. 430, 176 S.W.2d 177, 1S2 (Tex.Crim.App. 1943) ("the lawmaking bodies of each State pass laws to protect the peace, health, happiness, and general welfare of society, and of the people as a whole.").
Rhine, 297 S.W.3d at 306 (citing Sasser v. Stale, 131 Tex.Crim. 347, 98 S.W.2d 211, 212 (Tex.Crim.App. 1936); David v. State, 453 S.W.2d 172, 179 (Tex.Crim.App. 1970), vacated on other grounds in David v. Texas, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 755 (1972); Grant v. State, 505 S.W.2d 279, 282 (Tex.Crim.App. 1974)); Ex parte Granviel, 561 S.W.2d 503. 515 (Tex.Crim.App. 1978).
Ex parte Granviel, 561 S.W.2d at 514; TEX CONST. art. III. § 1.
Ex parte Granviel, 561 S.W.2d at 514.
Id.
Id.
We presume that a law delegating authority to an agent is constitutional, and the party asserting a separation-of-powers violation must show that the Legislature's delegation is unlawful.
Id. at 515.
Applying the foregoing analytical framework, we begin by examining the legislative history and purpose behind Section 125.065 of the Texas Civil Practice and Remedies Code and Penal Code Section 71.021. In enacting Section 125.065 in 1993, the Legislature intended to permit local governments to abate the nuisance created by street gangs involved in illegal conduct "while having a zero net effect on the already crowded prison system." As originally enacted, Section 125.065 stated: "If the court finds that a combination or criminal street gang constitutes a public nuisance, the court may enter an order enjoining a defendant in the suit from engaging in the organized criminal activities of the combination or gang." A violation of a court order entered under Section 125.065 was punishable only through civil contempt proceedings. After some minor amendments in 1995, in 2003, the Legislature amended Section 125.065 to permit a judge to impose "other reasonable requirements to prevent the combination or gang from engaging in future gang activities." The bill analysis noted this modification and stated that the purpose of the bill is to allow "certain entities to issue civil injunctions to deter certain gang[-]related conduct and seek aid to communities which experience high volumes of gang activity to be able to participate in the disenfranchising of gang-related gatherings."
House Comm. on Urban Affairs, Bill Analysis, Tex. H.B. 697, 73rd Leg. R.S. (1993).
Acts 1993, 73rd Leg., ch. 968, § 3, eff. August 30, 1993.
TEX. CIVIL PRAC. REM. CODE ANN. § 125.066.
Acts 1995, 74th Leg., ch. 76, § 14.13, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, § 34, eff. Sept. 1, 1995.
Acts 2003, 78th Leg., ch. 1202, § 11, eff. Sept. 1, 2003.
Senate Comm. on Jurisprudence, Bill Analysis, Tex. S.B. 1010, 78th R.S. (2003).
In 1995, the Legislature enacted Penal Code Section 71.021. The purpose of the bill was to create a criminal offense for a violation of an order entered under Section 125.065 and provide for a criminal penalty.
Acts 1995, 74th Leg., ch. 584, § 1, eff. September 1, 1995.
Senate Comm. on Jurisprudence, Bill Analysis, Tex. SB 1090, 74th R.S. (1995).
The clear legislative goal behind Section 125.065 is to put an end to the nuisance activities of criminal street gangs that wreak havoc on our local communities. To enforce this policy, the Legislature has chosen to provide for the possibility of both civil and criminal sanctions.
TEX. PENAL CODE ANN. § 71.021.
With the legislative policy established, we now evaluate whether the Legislature has provided a fixed primary standard that is capable of being reasonably applied, provides guidance, and limits discretion. A comprehensive review of the statute demonstrates that the Legislature has set a primary standard that instructs and limits a judge's discretion when formulating and imposing "reasonable requirements to prevent the combination or gang from engaging in future gang activity." First, any action taken by a judge is preceded by a judicial determination that the criminal gang or combination constitutes a public nuisance. A public nuisance is a "combination or criminal street gang that continuously or regularly associates in gang activities. . . ." Conduct constituting gang activity is defined in Section 125.061 of the Texas Civil Practice and Remedies Code as follows:
Rhine, 297 S.W.3d at 306.
TEX. CIV. FRAC REM. CODE ANN, § 125.062; see also TEX. CIV, PRAC. REM. CODE ANN. § 125.061(2) ("`Continuously or regularly' means at least five times in a period of not more than six months.").
(A) organized criminal activity as described by Section 71.02, Penal Code;
(B) terroristic threat as described by Section 22.07, Penal Code;
(C) coercing, soliciting, or inducing gang membership as described by Section 22.015, Penal Code;
(D) criminal trespass as described by Section 30.05, Penal Code;
(E) disorderly conduct as described by Section 42.01, Penal Code;
(F) criminal mischief as described by Section 28.03, Penal Code, that causes a pecuniary loss of $500 or more;
(G) a graffiti offense in violation of Section 28.08, Penal Code, that:
(i) causes a pecuniary loss of $500 or more; or
(ii) occurs at a school, an institution of higher education, a place of worship or human cemetery, a public monument, or a community center that provides medical, social, or educational programs;
(H) a weapons offense in violation of Chapter 46, Penal Code; or
(I) unlawful possession of a substance or other item in violation of Chapter 481, Health and Safety Code.
By virtue of this definition, any "reasonable requirements" formulated and imposed by a judge must be tied to the foregoing list of criminal offenses. Any judge-imposed requirements must directly correlate to the elimination of "gang activity" as defined by the Legislature.
Additionally, the modification of "requirements" by the term "reasonable" in Section 125.0135 serves to further guide and limit a trial judge's discretion. The plain meaning of the term "reasonable" applies under our rules of statutory construction, and "reasonable" is defined as "[flair, proper, just, moderate, suitable under the circumstances." Thus, when imposing "reasonable requirements" to prevent criminal gangs from engaging in future activity, a judge's discretion is restricted by the list of criminal offenses that make up the definition of gang activity as well as the "reasonable" element.
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.App. 1991) ("if the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning.") (citing Smith v. State, 789 S.W.2d 590, 592 (Tex.Crim.App. 1990)).
BLACK'S LAW DICTIONARY 656 (abridged 5th ed. 1983).
There is also a process for review. Any "reasonable requirements" imposed by a judge are subject to appellate review. This adds an extra layer of protection from the application and enforcement of arbitrary requirements that do not serve the statute's purpose.
TEX. CIV. PRAC. REM. CODE ANN. § 125.067(b).
Rhine, 297 S.W.3d at 323 (Keller, P.J., concurring) ("judicial review ensures that the administrative agency's rules and other actions actually conform to the legislative standards.").
Finally, we recognize that some flexibility in a judge's formulation and imposition of "reasonable requirements" must exist due to the nature of the activity sought to be curtailed. A judge must be afforded some discretionary authority to take into account the specific facts involved in a particular case and tailor the "reasonable requirements" to those facts in an effort to prevent future gang activity and effectuate the statute's purpose. Such permissive discretion granted by the Legislature does not render the statute violative of the separation of powers doctrine.
See Land v. State, 581 S.W.2d 672, 673 (Tex.Crim.App. 1979) ("Very often the areas that require regulation involve highly technical fields or areas where massive accumulation of data is necessary. Faced with limitations on funds, time, manpower, legislators find it impossible to acquire the requisite knowledge and expertise to enable them to responsibly legislate in the area.").
Our determination is also supported by precedent. In Williams v. State, we decided whether the Pink Bollworm Act constituted an unlawful delegation of legislative authority to the Commissioner of Agriculture. The Legislature made it an offense to violate any "proclamation, rule, or regulation promulgated by, or authorized to be issued," under the Pink Boll-worm Act. Williams was convicted of failing to comply with an order issued by the Commission governing the growing of cotton in a regulated zone. On appeal, we held that the Legislature did not un-lawfully delegate its lawmaking authority: "it must be remembered that it was not the [Bollworm] Commission that made it unlawful to grow cotton in the areas covered by the recommendations. The Legislature itself did that and provided the punishment to be applied for a violation thereof." This statutory construct in this case is similar to the one in Williams. Here, the Legislature made it a Class A misdemeanor offense to violate a judge's order imposing reasonable restrictions to curtail future criminal gang activities.
Williams, 176 S.W.2d at 179, 182-83.
Id. at 182 (quoting TEX. PENAL CODE art. 1034).
Id. ax 179, 182.
Id. at 183.
Because the Legislature has established a policy and has set forth a primary fixed standard, we hold that there is no separation of powers violation.
First Amendment — Right to Free Speech
An individual's right to free speech and expressive conduct is protected from "arbitrary governmental interference. . . . " Therefore, as a general rule, the government is prohibited from "prescrib[ing] the form or content of individual expression."
Cohen v. California, 403 U.S. 15, 19, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); see also Tinker v. Des Moines Indept. Comm. School Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ("The Constitution says that Congress (and the States) may not abridge the right to free speech.").
Cohen, 403 U.S. at 24, 91 S.Ct. 1780; see also United States v. Playboy Ent. Group, Inc., 529 U.S. 803, 812, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ("Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles.").
Our first task is to decide whether provision sixteen is a content-neutral or a content-based time, place, and manner restriction. Whether the provision is content-neutral or content-based dictates the level of scrutiny that we will apply in deciding whether provision sixteen violates Martinez's First Amendment rights.
See R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Boos v. Barry, 485 U.S. 312, 3 19-20, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1938).
Madsen v. Women's Health Center, Inc., 512 U.S. 753, 763-64, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (deciding that a content-neutral injunctive provision cannot burden more "speech than necessary to serve a significant government interest"); compare with Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ("For the State to enlorce a content-based exclusion it must show that its regulation is necessary' to serve a compelling state interest and it is narrowly tailored to achieve that end.").
The court of appeals held that the gang hand sign restriction was not content-based because it prohibited all gang hand signs, not just those used by the VC street gang, and therefore was not focused on the particular message. We disagree with this determination. A content-based regulation focuses on the content of speech and its impact on others. Provision sixteen banned the particular message associated with, and attributable to, the display of gang hand signs and clothing. That all gang hand signs, not just those used by the VC street gang, were prohibited does not render that prohibition content-neutral. The court of appeals's reasoning would apply had provision sixteen banned all hand signs. However, the content of the gang hand signs and clothing provided the basis for the restrictions in provision sixteen and the purpose was to ban the message conveyed by such signs and clothing.
Martiaez, 2009 WL 383760, at *7, 2009 Tex.App. LEXIS 1067, at * 19-20.
Boos, 485 U.S. at 321, 108 S.Ct. 1157.
See id. at 318-19, 108 S.Ct. 1157 (concluding that picketing regulation was content-based beause it suppressed a classification of speech — signs critical of foreign governments — but not all picketing in front of foreign embassies); People ex rel. Gallo v. Acuna, 48 Cal.App.4th 641, 657-658, 40 Cal.Rptr.2d 589 (1995) (holding that gang injunctions provisions prohibiting specific hand gang signs and gang clothing is content-related; "it is only the speech, symbols, gestures, and hand signs relating to two specific gangs."), vacated, 14 Cal.4th 1090, 60 Cal.Rptr.2d 277, 929 P.2d 596 (1997); see e.g., Collin v. Smith, 578 F.2d 1197, 1202 (7th Cir. 1978) (holding ordinance banning Nazi demonstration where symbolic clothing would be worn is content-based). But see People v. Englebrecht, 88 Cal. App.4th 1236, 1266, 106 Cal.Rptr.2d 738 (2001) (holding that: injunction prohibiting "Posole" gang signs and clothing is content-neutral; "[i]t is not the content of these expressions to which the injunction looks out the fact of them and their effect on others.").
Because we have found that provision sixteen is content-based, we will decide whether it was narrowly tailored to serve a compelling state interest. We conclude that: the strict scrutiny standard has been met in this case. First, we conclude that there was a compelling state interest. This prohibition in provision sixteen was made after the district court judge found that the VC street gang constituted a public nuisance. In making this determination, the judge specifically found:
See Madsen, 512 U.S. at 763-64, 114 S.Ct. 2516 (observing that the content-neutral injunctive provisions do not require the application of the heightened level of scrutiny set out in Perry Ed. Ass'n.).
See TEX. Civ. PRAC REM. CODE ANN.
• The Court, after examining the pleadings and attached affidavit, and hearing evidence, finds there is evidence that proves a probable right to recovery and a probable injury, specifically:
• Pursuant to Section 125.064 and 125.065, Plaintiff is entitled to the
relief demanded and that relief requires the restraint of certain actions by the VC . . . GANG: . . . Mario Martinez. . . .
• Harm is imminent to Plaintiff, and if the Court does not issue the temporary injunction order, Plaintiff will be irreparably injured because the Defendants will continue for an indefinite period of time to be members of the VC or members of a criminal combination who regularly associate in organized criminal activities. Moreover, unless enjoined, the Defendants will continue indefinitely to use the "
VC Safety Zone # 1" for the purpose of engaging in organized criminal activity as well as other gang related conduct. Such acts constitute irreparable harm because they jeopardize the safety and well being of the citizens living in the "
VC SAFETY ZONE #1".
The State has a recognizable compelling interest in ensuring the safety of citizens in the VC Safety Zone by preventing crime, and the judge's order in this case was issued to protect that interest.
See Madsen, 512 U.S. at 768, 114 S.Ct. 2516 (the state has a "strong interest in ensuring the public safety and order . . . and in protecting the property rights of all its citizens.").
Second, provision sixteen was narrowly tailored to serve the State's compelling interest. It prohibited a particular type of conduct and communication based on the relevant circumstances. The making of hand gang signs and the wearing of gang clothing are a primary feature of street gangs. A street gang is identified first and foremost through its hand signs and attire; it puts the public, and most of all, rival gangs, on notice of its existence and presence. Rivalries exist between street gangs, and the use of gang hand signs and clothing, the identifier, contributes to the onset of violence between rival gangs. Additionally, gang hand signs and clothing are used to promote a criminal street gang's overall objective of engaging in gang activity. What is lawful on its own, in this instance, is inextricably intertwined with the gang's unlawful exploits. Specifically, as noted above, the objectives of the VC gang, as determined by the district court judge, include some of the following penal code offenses: organized criminal activity, terroristic threats, criminal trespass, disorderly conduct, criminal mischief, unlawful possession of controlled substances, and coercing, soliciting, and inducing gang membership. Therefore, as the judge implicitly found, gang hand signs and "clothing represent an integral part of VC's illegal exploits, and prohibiting gang hand signs and the wearing of gang clothing was one essential tool in eliminating the gang's public-nuisance activities.
See Gangs in Texas 2001: an Overview, Attorney General of Texas, at 7, available at http://www.oag.state.tx.us/AG_Publications/pdfs/2001gangrept.pdf (including gang hand signs and clothing in list as signs of gang involvement).
See TEX. CIV. PRAC. REM. CODE ANN. § 125.061(3) (listing criminal offenses as definition of gang activity).
Id.
Provision sixteen was also narrowed by geography. The restrictions applied only in the VC Safety Zone clearly delineated by the district court judge. From our calculations of the delineated boundaries, the VC Safety Zone, at its largest points, was approximately 1.2 miles (or seventeen city blocks) by approximately 1.4 miles (or twenty-two city blocks) in Wichita Falls. Martinez remained free to engage in making gang hand signs and to wear gang clothing in every place in Wichita Falls, and beyond, with the exception of the defined, public VC Safety Zone. We defer to the district court judge's determination that this area was necessary to stop the VC's public-nuisance activities given the gang's past practices in that area. And, as an aside, we note that we are not confronted with a situation in which an individual was charged with violating the prohibitions outlined in provision sixteen in a private residence. Thus, we render no opinion on the issue of whether the prohibitions in provision sixteen would violate an individual's First Amendment right to free speech if the facts showed that the individual was prosecuted for using hand gang signs and wearing gang clothing inside a private residence.
See Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 381-82, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (deferring to the district court's assessment that a fixed buffer zone around an abortion provider was necessary to keep entrances clear in light of the defendants' past conduct in the buffer zone).
Based on our analysis above, we hold that provision sixteen did not violate Martinez's right to free speech under the First Amendment
Vagueness Challenge
A law is unconstitutionally vague when it "fails to define the criminal offense `with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement.' "` Under the first requirement — the fair warning requirement — a law must give an ordinary person notice of what is prohibited. And under the second requirement, which prohibits arbitrary and discriminatory enforcement, a law must provide explicit standards for the law's application; "[a] vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. . . ."
Lawrence v. State, 240 S.W.3d 912. 915 (Tex.Crim.App. 2007) (quoting State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App. 20061).
Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
Id. at 108-09, 92 S.Ct. 2294.
Because Martinez was charged with violating provision sixteen for making VC hand gang signs and wearing VC gang clothing, we limit our fair-warning analysis to the actual application of provision sixteen in this case. We conclude that provision sixteen was sufficiently clear so that Martinez could understand that VC hand gang signs and clothing were prohibited conduct. Martinez, determined to be an active VC gang member by the district court judge (a fact he has never contested and ultimately admitted when pleading guilty), must have been aware of the gang's identifying hand signs and clothing and therefore the precise conduct that he was charged with, and convicted of, violating. Indeed, we note that the arrest report in cause number 39396-F reflects that Martinez told the arresting officer that the color of clothing that he was wearing were "his gang colors." Thus, we find that his vagueness challenge to the gang-clothing prohibition to be somewhat disingenuous.
See Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S.Ct. 2705, 2719, 177 L.Ed.2d 355 (2010) ("[E]ven to the extent a heightened vagueness standard applies, a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Filth Amendment for lack of notice.").
See id.
We also reject the notion that provision sixteen permitted arbitrary and discriminatory enforcement. We regularly permit police officers to rely on their training and experience in making warrantless arrests, and we have recognized the ability of law enforcement to know and determine gang affiliation by observing an individual's clothing or tattoos. We therefore conclude that, under these circumstances, it is reasonable to defer to the district court judge's determination that law enforcement patrolling the defined VC Safety Zone, based on their training and experience, would be able to recognize the hand gang signs and clothing associated with gangs in the area and to apply the provision in a non-arbitrary and non-discriminatory fashion. We conclude that the court of appeals was correct in holding that provision sixteen was not unconstitutionally vague.
See McGee v. State, 105 S.W.3d 609, 614 (Tex.Crim.App. 2003) ("This court has previously upheld arrests . . . when police officers personally observed behavior that was not overtly criminal but when coupled with the officers' prior knowledge produced probable cause."); Gonzales v. State, 648 S.W.2d 684, 687 (Tex.Crim.App. 1983) ("We conclude that under the facts of this case the officers' observations of appellant and his attempt to conceal the balloons in his mouth, coupled with their knowledge of the use of balloons to carry heroin in the manner observed, were sufficient to authorize appellant's immediate arrest and the contemporaneous seizure of the balloons."); cf. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002) ("Although it cannot be presumed that everyone is capable of identifying marihuana by smell, a witness who is familiar with the odor of marihuana smoke through past experiences can testify as a lay witness that he or she was able to recognize the odor.").
See e.g., Conner v. State, 67 S.W.3d 192, 201-02 (Tex.Crim.App. 2001) (police officer testified that "one of appellant's tattoos might have some connection with gang membership"); Beasley v. State, 902 S.W.2d 452, 456 (Tex.Crim.App. 1995) ("Officer Griego revealed that he had personally witnessed appellant wearing the gang colors and clothing which indicated appellant's membership in the Crips gang.").
See TEX. CODE CRIM. PROC. ANN. art. 61.02 (providing for law enforcement agencies to collect data on those involved in gangs for inclusion in local or regional intelligence database); TEX. CODE CRIM. PROC. ANN. art. 61.10 (establishing Texas Violent Gang Task Force); TEX. CODE CRIM. PROC. ANN. art. 61.11 (providing for the attorney general to establish gang resource system to distribute information about Texas gangs); cf. Wiede v. State, 214 S.W.3d 17, 27 (Tex.Crim.App. 2007) ("Although probable cause is viewed objectively, Trooper McGuairt's testimony about his training and his opinion concerning the contents of the plastic bag provided a basis from which the trial judge could have reasonably inferred that Trooper McGuairt possessed specific knowledge that drugs are commonly packaged, carried, or transported in plastic bags."); Davis v. State, 202 S.W.3d 149, 156-57 (Tex.Crim.App. 2006) (finding it reasonable for a magistrate to infer an officer's prior experience with methamphetamine when the officer stated that he smelled an odor associated with the manufacture of methamphetamine when the officer did not offer any information about his previous experience or encounters with such an odor).
See Schenck, 519 U.S. at 381-82, 117 S.Ct. 855 (deferring to the district court's assessment that a fixed buffer zone around an abortion provider was necessary to keep entrances clear in light of the defendants' past conduct in the buffer zone); see also Hill v. Colorado, 530 U.S. 703, 733, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (recognizing that enforcing a law always requires some degree of discretion by law enforcement and that a degree of judgment is acceptable at times).
Conclusion
For the reasons given above, we affirm the court of appeals's judgment.
MEYERS, J., did not participate.