Abreu-Rodriguez v. USA

Filing 14

MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE (Ordered by Judge Matthew J. Kacsmaryk on 11/30/2020) (vls)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
ELVIS ANTONIO ABREU-RODRIGUEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL ACTION No. 2:18-CV-034-Z
(CRIMINAL ACTION No. 2:16-CR-80-Z)

MEMORANDUM OPINION AND ORDER DENYING
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
This matter comes before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed February 16, 2018
(ECF No. 1) (“Motion”). For the reasons set forth below, the Motion is DENIED.
BACKGROUND
In 2016, Petitioner was arrested during a traffic stop when a patrolman found cocaine,
methamphetamine, and marijuana in his car. Petitioner pleaded guilty to possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1). See CR ECF No.
21. 1 During his rearraignment, he averred he had committed each essential element of the offense.
He also acknowledged he voluntarily chose to plead guilty and to give up his right to appeal his
conviction or sentence. See CR ECF No. 32, at 18 ll. 9–24; id. at 15–16. The Court accepted
Petitioner’s guilty plea. See id. at 19 ll. 11–13.
The PSR calculated a total offense level of 27 after reductions under the safety valve, for
Petitioner’s “minor role” in the offense, and for acceptance of responsibility. See id. ¶¶ 27–34, at

Record citations to Petitioner’s federal criminal case, United States v. Abreu-Rodriguez, 2:16-CR-80-Z-BR-1 shall
be to “CR ECF No.” throughout this Opinion.
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7–8. The Court determined the mandatory minimum sentence of ten years was inapplicable and
sentenced Petitioner at the very bottom of the applicable guideline range, i.e. seventy months of
imprisonment. See CR ECF No. 28, at 1–2. Petitioner did not appeal his conviction or sentence.
Petitioner now asks the Court to vacate his sentence and reconsider it after an evidentiary
hearing on whether he merited a “minimal role” reduction instead of the lesser “minor role” one.
See Motion at 14–19. The Government argues the Motion should be denied because (1) Petitioner
waived his right to appeal, (2) it is procedurally barred, (3) a sentencing error is not cognizable on
collateral review, and (4) the claim is factually baseless. See ECF No. 5, at 1. Petitioner replies his
waiver was invalid due to ineffective assistance of counsel. See ECF No. 6, at 4.
LEGAL STANDARD
“Section 2255 provides relief for a petitioner who can establish that either (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.
Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (internal marks omitted). “[A] defendant is limited to
alleging errors of a constitutional or jurisdictional magnitude.” United States v. Samuels, 59 F.3d
526, 528 (5th Cir. 1995) (internal marks omitted). When alleging issues of jurisdictional or
constitutional magnitude for the first time in a § 2255, a Petitioner must show cause for his
procedural default in not raising the issue on direct appeal and actual prejudice suffered as a result
of the error. Samuels, 59 F.3d at 528; United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996).
ANALYSIS
Petitioner has requested an evidentiary hearing to resolve his claim. See ECF No. 1, at 12.
Such a request is permitted only if a Petitioner presents independent indicia of the likely merits of
his allegations. See United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013) (internal marks
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omitted). Because Petitioner’s offers no such indicia and his sole ground for relief is both factually
baseless and procedurally barred, his Motion is denied.
A. Factually Baseless Claims
The Court accepted the PSR “minor participant role” finding as opposed to a “minimal
participant” role. The former applies to any defendant “less culpable than most other participants
in the criminal activity,” whereas the latter only covers defendants who are “plainly among the
least culpable of those involved in the conduct of a group.” U.S.S.G. §3B1.2 nn.4–5 (emphases
added). The dividing line between these two types of roles is fact dependent, but the sentencing
guideline application notes propose distinguishing criteria. Among those criteria are the degree to
which a defendant: (1) understood the scope and structure of the criminal activity; (2) participated
in planning or organizing the criminal activity; (3) exercised decision-making authority or
influenced the exercise of decision-making authority; and (4) stood to benefit from the criminal
activity. See U.S.S.G. §3B1.2 n.3(C). Petitioner makes no arguments about any of these factors.
Even if the Court were to try to make Petitioner’s argument for him, information in the
Factual Resume supports the conclusion that a “minimal participant role” would have been
inappropriate in this case. See CR ECF No. 17. Petitioner knew not only his drop off point but also
the final destination of the drugs he carried. This fact alone suggests possessed more than a
minimal understanding of the “scope and structure of the criminal activity.” U.S.S.G. §3B1.2
n.3(C). Even if he did not, the division between a “minor” and a “minimal” role is discretionary,
and Petitioner’s protestation he was merely a drug mule is not decisive. In fact, a drug mule is not
guaranteed even a “minor role” offense level reduction, let alone a “minimal role” one. See United
States v. Silva-De Hoyos, 702 F.3d 843, 847 (5th Cir. 2012).

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B. Procedural Bar: Appellate Waiver
At Petitioner’s rearraignment, he assured the Court he reviewed, understood, and had no
objections to the plea agreement. See CR ECF No. 32 at 7–8. He further acknowledged he
understood he was giving up his right to appeal and to file any post-conviction proceedings, except
for the limited circumstances set out in the plea agreement. Id. at 15–16. Such formal declarations
in open court carry a strong presumption of truth, and the record establishes Petitioner in fact
understood the charge against him and the direct consequences of his waiver. As such, he
knowingly and voluntarily waived his right to appeal his conviction and sentence in a collateral
proceeding. See CR ECF No. 5, at 4. The Fifth Circuit upheld such informed and voluntary waiver
of post-conviction relief in United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
The Fifth Circuit exception to the above waiver rule in cases of ineffective assistance of
counsel does not apply here. See United States v. Hollins, 97 Fed. Appx. 477, 479 (5th Cir. 2004).
Petitioner stated during his rearraignment he was fully satisfied with defense counsel’s advice and
representation. See CR ECF No. 32, at 7 ll. 17–20. Petitioner’s current IAC claim is waived
because he raises it for the first time in his reply to the Motion. See Marroquin v. United States,
No. CIVA 3:08-CV-0489-GBH, 2009 WL 89242, at *4 (N.D. Tex. Jan. 12, 2009).
C. Procedural Bar: Not Cognizable on Collateral Review/Failure to Appeal
Even if Petitioner had not waived the right to file a § 2255 motion in his Plea Agreement,
a collateral challenge may not take the place of a direct appeal. United States v. Shaid, 937 F.2d
228, 231–32 (5th Cir. 1991). Petitioner solely argues a guideline calculation error, which he could
have raised on direct appeal. He chose not to do so and has not here (1) shown cause for his
procedural default and actual prejudice resulting from the error or (2) demonstrated the alleged
violation probably resulted in wrongful conviction. Shaid, 937 F.2d at 232. Thus, his issue is
procedurally barred. Id.
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CONCLUSION
For the reasons set forth above, the “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody” (ECF No. 1) filed by Petitioner Elvis Antonio
Abreu-Rodriguez is DENIED.
SO ORDERED.
November 30, 2020.
________________________________
MATTHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE

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