Delarosa v. USA

Filing 12

Memorandum Opinion and Order The Court Orders that the motion of Noe Delarosa to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied. 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. (Ordered by Judge John McBryde on 3/10/2015) (ult)

U.S. DlSTR!CT 6)URT
NORTHEI~~ DISTRICT OF TEXAS

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TE S
FORT WORTH DIVISION

FILED

MAR -/02015

CLERK, U.S. DfSTRlCT COt:n

NOE DELAROSA,
Movant,

vs.
UNITED STATES OF AMERICA,
Respondent.

§
§
§
§
§
§
§
§
§

By

D~:p~:r:

--·---··---.

--------·--·--····------

NO. 4:14-CV-1001-A
(NO. 4:12-CR-152)

MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of movant, Noe Delarosa,
under 28 U.S.C.

§

2255 to vacate, set aside, or correct sentence.

The government filed a response, and movant filed

a reply.

Having now considered all of the parties' filings, the entire
record of this case, including the record in-movant's criminal
case, and the applicable legal authorities, the court concludes
that the motion should be denied.
I.

Pertinent Background Information
In June 2012, movant and his codefendants, Juan Arriaga
("Arriaga") and Jesus Garcia ("Garcia"), were arrested after they
purchased twenty fully automatic rifles from an undercover agent
with the Bureau of Alcohol, Tobacco, and Firearms ("ATF") who was

posing as a firearms dealer.

Garcia had initially contacted the

ATF agent, saying that one of his buyers wanted to purchase
twenty firearms, and another wanted fifteen rifles similar to an
AK-47.

On June 5, 2012, movant, Garcia, and Arriaga met with the

ATF agent and an undercover Drug Enforcement Agency agent to
consider the weapons purchase.

The. agents provided a list of

firearms at movant's request, which the defendants kept after the
meeting.

During the meeting Arriaga called an unknown person to

discuss the list.

Movant told the agents that they were

negotiating firearms orders for different buyers.

'

Arriaga showed

the agents $10,000 in cash he intended to use for the weapons
purchase, and said he was going to pay Garcia and movant for
introducing him to the agent.
On June 6, 2012, Garcia called the ATF and said they had
approval to purchase twenty fully automatic machine guns.
agreed to a price of $600 per gun.

Garcia

On June 19, 2012, the agents

met with movant, Arriaga, and Garcia in Fort Worth.

Movant and

Arriaga showed the agents $12,000 in cash they had to purchase
the machine guns.

After traveling to the site where the weapons

were stored, movant gave the agents the $12,000 cash and the
agents gave the men the guns.

Movant put some of the machine

2

guns in cases and put the cases in the trunk of his car.

As

Arriaga picked up a second case, all three were arrested.
On August 31, 2012, movant pleaded guilty without a plea
agreement to one count of unlawful possession of a machine gun in
violation of 18

u.s.c.

§§

922(o) and 2.

On December 14, 2012,

the court sentenced movant to a term of imprisonment of 112
months.

Movant's attorney, Don L. Davidson ("Davidson"), filed

an appeal, and the Fifth Circuit affirmed.

United States v.

Delarosa, 539 F. App'x 625 (5th Cir. 2013).
II.
Grounds of the Motion
Movant raised two grounds for relief, both alleging
ineffective assistance by Davidson.

First, movant alleged

Davidson gave faulty advice during plea negotiations, which
extended to movant's interview with the probation officer.
Specifically, movant contends that Davidson advised him not to
answer questions concerning relevant conduct during movant's
interview with the probation officer who was preparing the
presentence report.

Because movant refused to answer those

questions, the court denied movant a three-level reduction for
acceptance of responsibility.

3

As the second ground for relief, movant alleged that the
probation officer recommended a four-level enhancement because
movant knew or had reason to believe that the firearms were
intended to be transported to Mexico.

Davidson failed to offer
I

any evidence to contradict the probation officer's assumption.
III.

Treatment of

§

2255

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

United States v. Frady, 456 U.S. 152, 164

(1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.
1991)

(en bane) .

A defendant can challenge his conviction or

sentence after it is presumed final only on issues of
constitutional or jurisdictional magnitude 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, but is
reserved for transgressions of constitutional rights and other
I

narrow injuries that could not have been raised on direct appeal
but, if condoned, would result in a complete miscarriage of

4

justice.

United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.

Unit A Sept. 21, 1981).
IV.
Merits of Movant's Claims
A.

Legal Standards Applicable to Claims of Ineffective
Assistance of Counsel
To prevail on an ineffective assistance of counsel claim,

movant must show that (1) counsel's performance fell below an
objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984); See also
Missouri v. Frye, 566 U.S. ___ , 132

s. Ct. 1399, 1409-11 (2012).

"[A] court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies."

Strickland,.

466 U.S. at 697; see also United States v. Stewart, 207 F.3d 750,
751 (5th Cir. 2000).

"The likelihood of a different result must

be substantial, not just conceivable," Harrington v. Richter, 562
U.S. 86, 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

5

produced a just result."
S. Ct. 1388, 1403 (2011)

Cullen v. Pinholster, 563 U.S.

' 131

(quoting Strickland, 466 U.S. at 686).

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.

Here, movant is entitled to no relief based on the alleged
ineffective assistance of counsel because he has failed to meet
the standard set forth by Strickland.
B.

Neither of the Grounds Has Merit
Because the two grounds for relief are closely related, the

court is combining its analysis and discussion of the grounds
under this single heading.
Movant's attempt to blame Davidson for advising him not to
answer questions during the presentence interview about his role
in the offense or any relevant conduct is without merit.

The

record reflects that movant and his attorney,met with the
probation officer on September 18, 2012, so that the probation
officer could interview movant for the purpose of preparing the
presentence report.

The probation officer reviewed the factual

resume with movant, and he agreed that all the conduct described
therein was correct.
6

In the presentence report the probation officer noted that
[p]ursuant to USSG §3El.l, comment (n.l(A)), at the
advice of his attorney, he elected to not discuss any
other conduct that was not related to the offense of
conviction. Specifically, he elected not to discuss
the destination of the firearms; the purpose for which
they were being purchase; and if he had any past
involvement in possessing, purchasing, or trafficking
firearms.
Presentence Report at 7 , 21.

Although noting that movant had

refused to answer questions about relevant conduct on Davidson's
advice, the probation officer also recognized that the Sentencing
Guidelines expressly allowed movant to do so.

The probation

officer still recommended that movant's offense level be
decreased by three levels for demonstrating acceptance of
responsibility, notwithstanding movant's refusal to answer
questions about relevant conduct.
At sentencing, Davidson argued strongly in favor of awarding
movant credit for acceptance of responsibility.

However, the

court rejected Davidson's argument on the basis of movant's
objection to the four-level enhancement in the presentence report
for firearms that were intended to be shipped to Mexico.

The

court found compelling the evidence that movant knew the intended
destination of the firearms, and found that movant had
frivolously contested that point.

7

The denial of acceptance of

responsibility was based on the frivolous objection to movant's
knowledge of the firearms' destination, not because movant
refused to answer questions based on Davidson's advice.
Movant also has failed to show prejudice.

On appeal, the

Fifth Circuit noted that "[t]he denial of the adjustment for
acceptance of responsibility was not without foundation."
Delarosa, 539 F. App'x at 626.

Although mentioning movant's

refusal to answer questions about the intended destination of the
firearms during the probation officer's interview, the court also
noted that transcripts of the surveillance videos "indicated that
Delarosa either knew or should have known that the firearms were
destined for Mexico."

Id.

Thus, the denial of acceptance of

responsibility was affirmed on a separate and independent ground
from the refusal to answer questions in the presentence
interview.

Movant cannot show he was prejudiced by anything

Davidson did or failed to do.
Movant also protests that the four-level enhancement for the
firearms' destination was erroneous because the probation officer
based the enhancement solely on the transcript of the June 5,
2012 negotiations between movant, his codefendants, and the
agents.

However, the court relied not only on the multiple

statements made during the June 5 meeting concerning the intended
8

destination of the weapons, but recognized that "anyone that
deals in the quantity of assault weapons that this defendant and
his co-defendants were dealing with, they know exactly where
those weapons are going."

Sentencing Tr. at 11.

Movant attempts to identify certain "facts" that Davidson
would have uncovered had he taken certain unspecified actions.
For example, movant contends Davidson would have discovered that:
Garcia had machine guns for sale, but he did not know Arriaga,
while Arriaga knew people wanting to purchase machine guns but
did not know Garcia, so movant introduced the two; movant did not
know the source of the firearms or the ultimate buyers; and,
although movant was present during the June 5, 2012 negotiations,
he also went into a restaurant at one time.

Movant does not

explain how any of these purported facts would have changed the
outcome of the proceedings.

Conclusory allegations cannot

sustain a claim of ineffective assistance of counsel.
Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).

Ross v.

See also United

States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)

("A defendant

who alleges a failure to investigate on the part of his counsel
must allege with specificity what the investigation would have
revealed and how it would have altered the outcome of the
trial.")
9

v.
Order
Therefore,
The court ORDERS that the motion of Noe Delarosa 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 March 10, 2015.

10