Argueta-Lopez v. USA

Filing 7

Memorandum Opinion and Order denying 1 MOTION to Vacate under 28 U.S.C. 2255: The court ORDERS that the motion of Jaime Arturo Argueta-Lopez to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied. Pu rsuant to Rule 22(b) of the Federal Rules of Appellate Procedure, Rule 11(a) of the Rules Governing section 2255 Proceedings for the United States District Courts, and 28 U.S.C. § 2253(c) (2), for the reasons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied, as movant has not made a substantial showing of the denial of a constitutional right. (See order for specifics.) (Ordered by Judge John McBryde on 5/7/2013) (mdf)

U.S. DISTRICT COURT

NORTHERN DISTRICT Of TEXAS

,

FILED

---,

IN THE UNITED STATES DISTRIC COUR
: . -72013
NORTHERN DISTRICT OF TEX S
FORT WORTH DIVISION
CLERK, U.S. DISTRICTC~'
By
§
---;:D:-ep-u"7ty-UNITED STATES OF AMERICA

'

§

VS.

§
§

JAIME ARTURO ARGUETA-LOPEZ

NO. 4:13-CV-144-A
(NO.4: 10 - CR - 147 - A-I )

§

§

MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of Jaime Arturo ArguetaLopez (nmovant") pursuant tp 28 U.S.C.
aside, or correct sentence.

§

2255 to vacate, set

Having reviewed the motion, the

record, the government's response, movant's reply, and applicable
legal authorities, the court concludes that none of the grounds
has merit and the motion should be denied.
1.

Background
Movant pleaded guilty, without a plea agreement, to
illegally reentering the United States after being deported, in
violation of 8 U. S. C.

§

1326 (a) and (b) (2).

He was sentenced to

96 months imprisonment, which was above the guideline range of 46
to 57 months, and five years of supervised release.

The Fifth

Circuit affirmed his conviction and sentence, united States v.
Argueta-Lopez, 444 F. App'x 773

(5th Cir. 2011), and certiorari

review was denied, Argueta-Lopez v. united states, 132 S. ct.
1600 (Feb. 21, 2012).

Movant timely filed his section 2255

motion, the government filed a response, and movant filed a
reply.
II.

Grounds of the Motion
Movant identified three grounds for relief in his motion:
(1) counsel was ineffective in advising movant to plead guilty;
(2) counsel was ineffective in failing to advise him about the
"fast track program" and failing to "move the court" under united
(~USSG")

states Sentencing Guidelines

§

5K3.1; and (3) counsel

was ineffective for failing to move for a downward departure
"under cultural assimilation benefit(s)."

Mot. at 5-8.

III.

Analysis
A.

Legal Standard for 28 U.S.C.

§

2255

After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands
fairly and finally convicted.
152,

1~4

united states v. Frady, 456 U.S.

(1982); united states v. Shaid, 937 F.2d 228, 231-32

(5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992).

A defendant

can challenge his conviction or sentence after it is presumed
final on issues of constitutional or jurisdictional magnitude
2

only, and may not raise an issue for the first time on collateral
review without showing both "cause" for his procedural default
and "actual prejudice" resulting from the errors.

Shaid, 937

F.2d at 232.
Section 2255 does not offer recourse to all who suffer trial
errors.

It is reserved for transgressions of constitutional

rights and other narrow injuries that could not have been raised
on direct appeal and would, if condoned, result in a complete
miscarriage of justice.

united States v. Capua, 656 F.2d 1033,

1037 (5th Cir. unit A Sept. 1981).

In other words, a writ of

habeas corpus will not be allowed to do service for an appeal.
Davis v. United States, 417 u.S. 333, 345 (1974).

Further, if

issues "are raised and considered on direct appeal, a defendant
is thereafter precluded from urging the same issues in a later
collateral attack."
(5th Cir. 1979)

Moore v. united States, 598 F.2d 439, 441

(citing Buckelew v. united States, 575 F.2d SIS,

517-18 (5th Cir. 1978)).
B.

Ineffective Assistance of Counsel Claims
To prevail on an ineffective assistance of counsel claim,

movant must show (1) that his counsel's performance fell below an
objective standard of reasonableness and (2) that there is a
reasonable probability that, but for his counsel's unprofessional
errors, the result of the proceedings would have been different.
3

Strickland v. Washington, 466 U.S. 668, 687 (1984).

Both prongs

of the strickland test must be met to demonstrate ineffective
assistance.

rd. at 697.

Further,

"[a] court need not address

both components of an ineffective assistance of counsel claim if
the movant makes an insufficient showing on one."
v. Stewart,207 F.3d 750, 751 (5th Cir. 2000).

united states

"The likelihood

of a different result must be substantial, not just conceivable,"
Harrington v. Richter, 131 S. ct. 770, 792

(2011), and a movant

must prove that counsel's errors "so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result."
Pinholster, 131 S. Ct. 1388, 1403 (2011)
u.s. at 686)).

Cullen v.

(quoting Strickland, 466

Judicial scrutiny of this type of claim must be

highly deferential and the defendant must overcome a strong
presumption that his counsel's conduct falls within the wide
range of reasonable professional assistance.

strickland, 466

U.S. at 689.
1.

Movant's Guilty Plea

Movant contends that counsel advised him that he would
receive no more than 46 to 57 months imprisonment if movant
pleaded guilty, that movant was not made aware of any sentencing
enhancements that he believes caused him to be sentenced to 96
months imprisonment, and that movant would have gone to trial
4

rather than plead guilty if he had known that his sentence could
be 96 months.

However, movant's contentions are contradicted by

the record, which reflects that movant fully understood the
potential consequences of entering a plea of guilty.
For a guilty plea to be knowing and voluntary, the defendant
must have "a full understanding of what the plea connotes and of
its consequence."
(5th Cir. 2000)
omitted).

united states v. Hernandez, 234 F.3d 252, 255

(per curiam)

(internal quotations and citations

However, "[tJhe defendant need only understand the

direct consequences of the plea; he need not be made aware every
consequence that, absent a plea of guilty, would not otherwise
occur.

II

rd.

(internal citations omitted).

The defendant's

representations, as well as those of his lawyer and the
prosecutor, and any findings by the judge in accepting the plea,
"constitute a formidable barrier in any subsequent collateral
proceedings.

II

Blackledge v: Allison, 431 U.S. 63, 74

(1977).

Solemn declarations in open court carry a strong presumption of
truthfulness, and a defendant bears a heavy burden to show that
the plea was involuntary after testifying to its vOluntariness in
open court.

DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir.

1994).
The record reflects that movant made assurances to the court
in both his factual resume and his testimony under oath at his
5

rearraignment hearing that he understood the potential
ramifications of pleading guilty.

The factual resume, signed by

movant on September 10, 2010, provided that the court could
impose a penalty on movant of up to twenty years imprisonment.
At movant's rearraignment, he testified that he had read the
factual resume, discussed it with his attorney, and understood
"exactly what it said."

Rearraignment Tr. at 16-17.

The court

asked movant whether he understood that if he pleaded guilty, he
would be sUbjecting himself to a term of imprisonment of twenty
years and various additional punishments, to which movant
replied,

"Yes, sir."

ld. at 19-20.

Also at the rearraignment

hearing, movant assured the court that he understood that the
sentencing guidelines were advisory only and the court could
sentence him above or below the guidelines, that he "should never
depend or rely upon any statement or promise by anyone . . . as
to what penalty will be assessed," and that if he pleaded guilty
and received a sentence more severe than he had hoped, he would
not be able to withdraw the guilty plea.

Id. at 7, 9-10, 12, 20.

The conclusory and self-serving statements contained in movant's
§

2255 motion cannot overcome the strong presumption of truth

accorded to his statements in court and signed plea documents,
and, accordirtgly, movant cannot establish that counsel was
ineffective in advising movant to plead guilty.
6

2.

Fast-Track Program

Movant next argues that his attorney was ineffective for
failing to move for a four-level downward departure pursuant to
USSG

§

5K3.1, which provides:

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.
USSG

§

5K3.1.

Movant contends that he was prejudiced due to his

attorney's failure to make such a motion; however, movant's
contentions are meritless.

As the government points out, at the

time of movant's sentencing, the Attorney General had not
authorized a fast-track program in the Northern District of
Texas.

See www.justice.gov/dag/fast-track-program.pdf; Serna-

Camacho v. United States,No. A-12-CV-963 LY, 2013 WL 1855778 at
*2

(W,D. Tex. May I, 2013).

Further,

"[t]he prosecutorial

discretion granted to the Attorney General regarding whether and
where to establish fast track programs dictates whether a
defendant has an opportunity to be offered early disposition
under a fast track program."
F.3d 554, 561 (5th Cir. 2008).

united states v. Gomez-Herrera, 523
Thus, there is nothing to

indicate that movant could have had his case disposed of pursuant
to a fast-track program.

In addition, even if movant's attorney

had persuaded the government to move for a downward departure
7

under § 5K3.1, the record clearly reflects that the court would
not have considered granting such amotion, as the court had
concluded that movant was a "determinedrecidivist
therefore, an upward variance was necessary.

ff

and,

Accordingly, movant

can show neither cause nor prejudice, and cannot satisfy the
burden of strickland.
3.

Downward Departure for Cultural Assimilation

Movant contends that his attorney was ineffective when he
"failed to move the district court under cultural assimilation
benefit(s)" because movant's "offense conduct was motivated
solely by his exceptional cultural and family ties to this
country."

Mot. at 8.

Application note 8 to USSG

§

2Ll.2

provides that there are some "cases in which a downward departure
may be appropriate on the basis of cultural assimilation," and
that the court should consider various factors, such as the age
in childhood when the defendant began living continuously in the
United States, the duration of residence in the united States,
nature and extent of ties to the united States, and the
seriousness of the defendan' 's criminal history.

USSG

§

2Ll.2

cmt. n.8.
Despite movant's conte tions, the record reflects that his
attorney did argue, both in the sentencing memorandum and at the
sentencing hearing, that th s departure was appropriate in
8

movant's case.

Movant's attorney explained to the court that

movant had come to the United States from EI Salvador with his
family at the age of three, had attended school in the united
States, had little or no ties to EI Salvador, had a wife and
child iIi. the United States, and had returned to the united states
illegally because his wife was going through a difficult
pregnancy and he wanted to be there for his family.
Tr. at 11-13.
criminal past,

Sentencing

However, the court noted movant had a "terrible"
was a "determined recidivist" who had evidenced a

"disrespect for the law," and that a sentence above the guideline
range was required to adequately and appropriately address
movant's criminal conduct.

rd. at 14-15.

There is no indication

that the court would have considered any kind of downward
departure, and the fact that movant's attorney could not persuade
the court that movant's family ties and circumstances warranted a
lower sentence is insufficient to establish ineffective
assistance of counsel.
410

See Youngblood v. Maggio, 696 F.2d 407,

(5th Cir. 1983).

9

IV.
Order
Therefore,
The court ORDERS that the motion of Jaime Arturo ArguetaLopez to vacate, set aside, or correct sentence pursuant to 28
U.S.C.

§

2255 be, and is hereby, denied.

Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
§

2253(c) (2), for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED May 7, 2013.

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