De Loera-Hernandez v. United States of America
Filing
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ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Honorable Robin J. Cauthron on 4/4/13. (lg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
FERNANDEZ DE
LOERA-HERNANDEZ,
Defendant.
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Case No. CR-10-378-C
CIV-13-0052-C
MEMORANDUM OPINION AND ORDER
On January 11, 2013, Defendant, acting pro se, filed a 28 U.S.C. § 2255 Motion to
Vacate, Set Aside or Correct his sentence. In support of his request, Defendant argues that
his trial counsel was ineffective in failing to timely disclose and review the Pre-Sentence
Report (“PSR”) and in failing to raise certain objections and make certain arguments which
resulted in a sentence that is substantially unreasonable.1
Defendant’s ineffective assistance of counsel claim is governed by the two-pronged
analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, Defendant must
show that his counsel’s performance fell below an objective standard of reasonableness. Id.
at 688. Second, Defendant must demonstrate that the deficient performance resulted in
prejudice to his defense. Id. at 687. These elements may be addressed in any order and it
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To the extent Defendant raises issues regarding the reasonableness of his
sentence that are not premised on a claim of ineffective assistance of counsel, those
claims have been finally resolved against Defendant by the Tenth Circuit’s opinion on
direct appeal. See United States v. De Loera-Hernandez, 458 F.App’x 779 (10th Cir.
2012).
is not necessary to consider both, if a party fails to make a sufficient showing of one. Boyd
v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). Here, the Court finds Defendant’s failure to
make a sufficient showing on the prejudice prong is decisive. To establish the second prong,
Defendant must show that “counsel’s errors were so serious as to deprive the defendant of
a fair trial.” Strickland, 466 U.S. at 687. In other words, Defendant must establish “that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. With these standards in mind, the Court considers the issues raised by Defendant.
Defendant’s first claim of ineffective assistance arises from the untimely disclosure
of the PSR. As Defendant notes, Fed. R. Crim. P. 32(e)(2), requires the PSR to be disclosed
to Defendant and his attorney at least 35 days prior to sentencing. Defendant argues that
despite this requirement, he did not see the PSR until the date of sentencing. Defendant also
asserts that the failure to disclose was the fault of his counsel. The Tenth Circuit has held
that where a Defendant receives less than the required time period but does not object, he
waives the issue. United States v. Jones, 80 F.3d 436, 438 (10th Cir. 1996). At the
sentencing hearing, the Court recessed so that Defendant, his attorney, and an interpreter
could review the PSR. After the proceedings resumed, neither Defendant nor his attorney
objected to the delay in disclosure. Accordingly, the Court finds Defendant has waived any
complaint surrounding the timing of the disclosure.
Next, Defendant argues his counsel was ineffective because he failed to offer evidence
of Defendant’s ties to this country as they provided a basis for his repeated unauthorized reentry. According to Defendant, he came back because his father was ill and his son has
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asthma. Defendant asserts that his counsel failed to present this evidence in a way to permit
the Court to depart based on “cultural assimilation.”2 The flaw with Defendant’s argument
is that the same evidence of assimilation that he presents in his § 2255 brief as warranting
a departure was presented to the Court at sentencing, considered by the Court, and
specifically rejected by the Court as warranting a departure:
Mr. De Loera, I realize you’ve spent much of your adult life in this country,
you have family here, and certainly the reasons that brought you back may
have been compelling to you, but what I have to do in sentencing you is
convince you that you can’t keep coming back. Each time you come back the
sentence will be higher and higher, and as long as you keep committing crimes
once you are here, you will keep being caught and sent back to prison and then
back to Mexico.
It seems to me necessary to have a sentence higher than you received the last
time in order to fulfill that promise . . . .
(Transcript of Sentencing, Dkt. No. 34, p. 9). Thus, it is clear that at sentencing, the Court
was presented with evidence of what Defendant calls “cultural assimilation” and found it an
insufficient basis for departing from the Guidelines. Consequently, Defendant has failed to
demonstrate “that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.
Defendant’s ineffective assistance claim based on counsel’s failure to object to the
disparity in sentencing compared to a fast-track district also fails. The Tenth Circuit has held
that before a defendant can show a disparity, he must first demonstrate that he would be
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While the undersigned disagrees with Defendant’s use of the term “cultural
assimilation” to describe what are more properly defined as family ties, the Court will use
Defendant’s terminology to remain consistent with his briefs.
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entitled to the program if it existed in this district. United States v. Lopez-Macias, 661 F.3d
485, 494 (10th Cir. 2011). Defendant has failed to offer any evidence that he would be
eligible. At best, Defendant offers an argument that he would have been eligible had he
pleaded guilty in the Central District of California. Plaintiff disagrees and, as the Tenth
Circuit has noted, eligibility issues are the province of the Department of Justice. Id.
Defendant has failed to offer anything other than his unsupported assertion that he was
eligible. In the absence of any proof of eligibility, Defendant cannot demonstrate that absent
counsel’s failure to assert the disparity, his sentence would have been different. Accordingly,
his claim of ineffective assistance fails.
Finally, to the extent Defendant raises arguments about the length of his sentence
when compared to a defendant with the same criminal history but who committed a different
crime, his arguments raise only questions of law regarding the reasonableness of his
sentence. As noted above, those issues were decided on direct appeal and cannot be revisited
here.
As set forth more fully herein, Defendant’s Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. No. 40) is DENIED.
A Judgment will enter accordingly.
IT IS SO ORDERED this 4th day of April, 2013.
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