Guadarrama v. USA
Filing
7
ORDER DENYING 1 MOTION UNDER 28 U.S.C. § 2255 & DENYING CERTIFICATE OF APPEALABILITY. (Ordered by Judge Terry R Means on 3/3/2015) (mdf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ARTURO HERNANDEZ GUADARRAMA
VS.
UNITED STATES OF AMERICA
§
§
§ CIVIL ACTION NO. 4:14-CV-643-Y
§ (Criminal No. 4:11-CR-096-Y(30))
§
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255
& DENYING CERTIFICATE OF APPEALABILITY
Before the Court is the motion for relief under 28 U.S.C. §
2255 of Arturo Hernandez Gaudarrama (doc. 1). After careful
review of the motion, response, and reply, the Court concludes
that the motion must be DENIED for the reasons set forth in this
order.
In 2011, Gaudarrama was charged via superseding indictment
with conspiracy to possess a controlled substance with intent to
distribute in violation of 21 U.S.C. § 846. The charged offense
carried a statutory penalty of not less than ten years but not
more than life in prison. See 21 U.S.C. § 841(a)(1), (b)(1)(A).
Gaudarrama entered into a plea agreement under Federal Rule of
Criminal Procedure 11(c)(1)(C) under which the parties agreed
that 135 months was an appropriate term of imprisonment.
Gaudarrama later moved to withdraw his guilty plea. This
Court, following an evidentiary hearing and consideration of the
factors set out in United States v. Carr, 740 F.2d 339, 343 (5th
Cir. 1984), denied the motion. The Court ultimately declined to
sentence Gaudarrama in accordance with the plea agreement, and
imposed a sentence of 121 months’ imprisonment, which was at the
bottom of the advisory guidelines range and below the sentence
set out in Gaudarrama’s plea agreement.
Gaudarrama seeks relief under § 2255 based on ineffective
assistance of counsel. Gaudarrama claims that his attorney was
ineffective
for
(1)
failing
to
move
for
an
offense-level
adjustment under U.S.S.G. § 3B1.2 based on Gaudarrama’s alleged
role as a minor participant in the office, (2) failing to file a
motion for a downward departure under U.S.S.G. § 5K1.1 based on
his cooperation with the government, and (3) failing to argue
for a lower sentence under 18 U.S.C. § 3553(a)(6) to avoid
unwarranted sentencing disparities between Gaudarrama and his
co-conspirators.
Claims of ineffective assistance of counsel are properly
brought as § 2255 motions. United States v. Placente, 81 F.3d
555, 558 (5th Cir. 1996). To succeed on a claim of ineffective
assistance, a petitioner must prove that (1) his “counsel’s
performance was deficient,” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). Both prongs must be satisfied for petitioner to be
entitled to relief. Id. And the burden is on the petitioner to
show that his counsel’s representation fell below an objective
standard of reasonableness by identifying “acts or omissions of
counsel
that
are
alleged
not
to
have
been
reasonable professional judgment.” Id. at 690.
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the
result
of
Gaudarrama argues that his attorney should have sought an
offense-level adjustment under § 3B1.2 based on his allegedly
minor role in the offense. Gaudarrama claims that he “was only a
minimal/minor participant” and that he “was not planning the
business, and was not the buyer or distributor of the drugs.”
(Pet’r’s Mot. at 5.) To be entitled to the minimal-participant
adjustment under the sentencing guidelines, Guadarrama had to
establish at sentencing that he was “plainly among the least
culpable of those involved in the conduct of a group” and that
he had a “lack of knowledge or understanding of the scope and
structure of the enterprise and of the activities of others.”
U.S.S.G. § 3B1.2(a), App. 4.
To be entitled to an adjustment as a minor participant,
Gaudarrama had to prove that, despite having a role in the
conspiracy that “could not be described as minimal,” he was
still “less culpable than most other participants.” U.S.S.G. §
3B1.2(b), App. 5. “[T]he fact that other co-defendants were more
culpable does not automatically qualify a defendant for either
minor or minimal participant status.” United States v. Atanda,
60 F.3d 196, 198 n.1 (5th Cir. 1995) (citing United States v.
Thomas, 963 F.2d 63, 65 (5th Cir. 1992)).
The
Court
concludes
that
Guadarrama
has
failed
to
demonstrate that he was eligible for either the minimal- or
minor-participant
adjustment.
In
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his
factual
resume,
the
veracity of which he affirmed under oath, Guadarrama admitted to
picking up cocaine in kilogram quantities and distributing it.
(Factual Resume at 4.) He confessed that he was personally
responsible for distributing more than five kilograms of cocaine
(Id. at 3-4.) And the presentence report (“PSR”), indicates that
he actually purchased more than ten kilograms. (PSR at ¶ 68.) He
was
trusted
to
accompany
Cristian
Ocana,
a
higher-level
distributor, to pick up cocaine from a supply source, and he was
trusted with information about other suppliers. (PSR at ¶ 62,
70.)
He
also
actively
participated
in
coordinating
drug
transactions. (PSR at ¶ 71-72, 75-76.)
These facts sufficiently refute Gaudarrama’s claim that he
was not involved in the buying or selling of drugs and instead
demonstrate that his involvement in the offense was more than
“minimal” or “minor.” Therefore, he would not have been eligible
for an offense-level reduction under § 3B1.2, and his attorney
was not ineffective for failing to seek such an adjustment. See
United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999)
(explaining that “[a]n attorney’s failure to raise a meritless
argument . . . cannot form the basis of a successful ineffective
assistance of counsel claim because the result of the proceeding
would
not
have
been
different
issue”).
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had
the
attorney
raised
the
Gaudarrama also faults his attorney for failing to move for
a
downward
departure
assistance.
regarding
under
Gaudarrama
his
§
5
provides
alleged
K1.1
no
substantial
based
details
on
substantial
in
his
assistance.
motion
Furthermore,
§5K1.1 permits the Court to depart from the guidelines “[u]pon
motion
from
the
government
that
the
defendant
has
provided
substantial assistance . . . .” U.S.S.G. § 5K1.1 (emphasis
added). Gaudarrama’s attorney cannot be faulted for failing to
make
a
motion
for
a
sentence
reduction
that
she
was
not
authorized to make under the plain language of the guidelines.
Finally,
Gaudarrama
argues
that
his
lawyer
should
have
moved the Court for a lower sentence based on “the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” 18
U.S.C. § 3553(a)(6). Guadarrama provides the names and purported
sentences of six of his co-defendants that he claims “obtained
less time in the same offense with more participation in the
crime.” (Pet’r’s Mot. at 8.) But Gaudarrama provides no details
about the co-defendant’s participation in the crime, nor any
information
about
how
individual
factors
such
as
criminal
history, cooperation with the government, and other mitigating
circumstances may have impacted their sentences.
Nonetheless, the record reflects that the Court considered
this factor at sentencing: “In determining the sentence, I’ve
5
considered
the
advisory
guidelines
as
well
as
statutory
directives listed in 18 U.S.C. § 3553(a).” (Sept. 12, 2012
Sentencing
Tr.
at
29.)
Thus,
any
motion
from
Guadarrama’s
attorney would have been meritless because the Court had already
accounted for the factor related to sentencing disparity in
determining that a sentence of “121 months, pursuant to the
guidelines, is sufficient but not greater than necessary to
achieve
the
Court’s
sentencing
objectives
of
punishment,
deterrence, and protection of the public.” (Id.)
Based on the forgoing, Guadarrama has failed to demonstrate
that he is entitled to relief under § 2255. As such, his motion
is DENIED.
Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an
appeal may not proceed unless a certificate of appealability
(“COA”) is issued under 28 U.S.C. § 2253. See Fed. R. App. P.
22(b). Rule 11 of the Rules Governing Section 2255 Proceedings
now requires that the Court “must issue or deny a certificate of
appealability
when
it
enters
a
final
order
adverse
to
the
applicant.” The COA may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
showing “that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists
6
of reason could conclude the issues presented are adequate to
deserve
encouragement
to
proceed
further.”
Miller-El
v.
Cockrell, 537 U.S. 322, 326 (2003) (citing Slack v. McDaniel,
529 U.S. 473, 484 (2000)).
Upon review and consideration of the record in this case,
Guadarrama has not made a showing that reasonable jurists would
question this Court’s rulings. As such, the Court concludes that
a certificate of appealability should not issue for the reasons
stated in this order. See Fed. R. App. P. 22(b); see also 28
U.S.C. § 2253(c).
SIGNED March 3, 2015.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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