Castillo Guerra v. USA

Filing 12

Memorandum Opinion and Order: The court ORDERS that all relief sought by movant in his motion under 28 U.S.C. § 2255 be, and is hereby, denied. Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, Rule ll(a) of the Rules Govern ing 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. (Ordered by Judge John McBryde on 1/20/2017) (hth)

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IN THE UNITED STATES DISTRICT! COURT
NORTHERN DISTRICT OF TEX~S
FORT WORTH DIVISION

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SERGIO ANGEL CASTILLO-GUERRA,

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JAN 2 0 2017

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Movant,

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vs.

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UNITED STATES OF AMERICA,

NO. 4:16-CV-1115-A
(NO. 4:14-CR-130-A)

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Respondent.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Sergio Angel
Castillo-Guerra ("movant") under 28

u.s.c.

§

I

2255 to vacate, set

aside, or correct sentence by a person in federal custody. After
having considered such motion, the government's response,
movant's reply, and pertinent parts of the record in Case No.
4:14-CR-130-A, styled "United States of America v. Mario MoronesRamirez, et al.," the court has concluded that the motion should
be denied.
I.

Background
Information contained in the record of the underlying
criminal case discloses the following:
On June 11, 2014, movant was named, along with two others,
in a two-count indictment charging him in count 1 with conspiracy
to possess and distribute cocaine, in violation of 21 U.S.C.

§

846, and in count 2 with possession with intent to distribute
more than five kilograms of a mixture and substance containing a
detectable amount of cocaine, in violation of 21 U.S.C.

§

841(a) (1) and (b) (1) (A) (ii). CR Doc.' 21. Movant was initially
represented by appointed counsel, but later retained counsel to
act on his behalf. CR Docs. 3 & 40.
On August 15, 2014, movant appeared for rearraignment and
pleaded guilty to count 1 of the indictment. CR Doc. 52. In
connection with the plea, the parties presented the court with a
factual resume, CR Doc. 53, and plea agreement, CR Doc. 54, each
of which had been signed by movant and his attorney. Movant was
placed under oath 2 and, among other things, stated that he
understood that he was waiving his right to trial; he was
satisfied with his attorney and did not have any complaint
whatsoever; his plea was based on actual guilt and was made
knowingly, voluntarily, and without pressure or coercion; he did
not have any deal, understanding, or agreement and that no one
had made any promise to him to induce him to enter a guilty plea;
he understood the role of the sentencing guidelines and had

'The "CR Doc._" reference is to the number of the item on the docket in the underlying criminal
case, No. 4:14-CR-130-A.
'Movant used the services of an interpreter during the hearing and the court specifically
admonished movant to notify the court immediately if there was any problem with the interpreting
equipment. CR Doc. 142 at 10-11.
2

discussed them with his attorney and knew that the court had the
exclusive authority to calculate his guideline range after it
reviewed the PSR and considered any objections; the guideline
calculation was not limited to the facts stipulated by the
parties and the court could take into account facts not mentioned
in the stipulated facts and impose a sentence more severe or less
severe than the sentence called for by the guidelines; he would
not be permitted to withdraw his plea if his sentence was higher
than he expected; he committed each element of the offense
charged in count 1 of the indictment; and, the factual resume had
been read to him in his language, he had discussed it with his
attorney, and the facts stated therein were true and correct. The
court specifically explained that movant was subject to a term of
imprisonment of 20 years, which movant stated he understood. The
court determined that movant's plea was knowing and voluntary and
that he was competent to enter into it. CR Doc. 142.
Despite the court's admonishment about the need to speak up
if there was any inaccuracy in the presentence report, CR Doc.
142 at 20-21, movant did not object to the presentence report. At
sentencing, on December 5, 2014, movant's attorney represented to
the court that he and his client had received, read, and

3

discussed the presentence report.' CR Doc. 143 at 4-5. Movant did
not at any time contradict his attorney or make any complaint
whatsoever about his representation of movant. He simply asked
forgiveness and stated that he was willing to pay for his crime.
CR Doc. 143 at 19. The court sentenced him to a term of
imprisonment of 210 months. CR Doc. 143 at 21; CR Doc. 106.
Movant appealed and the judgment was affirmed. United States
v. Castillo-Guerro, 627 F. App'x 353 (5th Cir. 2015). His
petition for writ of certiorari was denied. Castillo-Guerro v.
United States, 136 S. Ct. 1505 (2016).
II.

Grounds of the Motion
Movant asserts five grounds in support of his motion, worded
as follows:
Ground One: United States District Judge failed to
ascertain if Defendant had read and discussed the
Presentence Investigation Report (PSR) before
sentencing in violation of Rule 32 (i) (1) (A), Federal
Rules of Criminal Procedure. The Rule requires the
Judge to verify that the Defendant and Defendant's
attorney have read and discussed the Presentence
Investigation Report.
Ground Two: Defense Attorney Samuel Terry failed to
disclose, discuss and read the PSR to Defendant prior
to sentencing in violation of Rule 32 (f) (1) and Rule
32(i) (1) (A), Federal Rules of Criminal Procedure.

'Counsel represented that the PSR was read to movant and discussed with him in his native
language. CR Doc. 14 3 at 5.
4

Ground Three: Attorney Terry failed to object to the
offense conduct and Guidelines calculations paragraph
14-27 of the PSR. Attorney Terry failed to object to
Defendant being held accountable for 480 kilograms of
cocaine as relevant conduct.
Ground Four: Attorney Terry promised Defendant that he
would be punished only for 8 kilograms of cocaine.
Ground Five: Attorney Terry's failure to confer with
Defendant before sentencing violated Defendant's Sixth
Amendment right to confer with counsel.
Doc.' 1.
III.

Applicable Legal Principles
A.

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.

United States v. Frady, 456 U.S.

152, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-32
(5th Cir. 1991).

A defendant can challenge his conviction or

sentence after it is presumed final on issues of constitutional
or jurisdictional magnitude 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.

'The "Doc. _" reference is to the number of the item on the docket in this civil case.
5

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.

v. Placente, 81 F.3d 555, 558

333, 345 (1974); United States

(5th Cir. 1996).

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 515,

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

Ineffective Assistance of Counsel Claims
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.

Missouri v. Frye, 566 U.S.

, 132 S. Ct. 1399, 1409-11 (2012).

668, 687 (1984); see also

"(A] court need not determine whether counsel's performance was
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deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies."
466

u.s.

Strickland,

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, 112 (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.•
(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. It is not the government's burden to
prove that counsel was competent; rather, movant must show both
deficient performance and prejudice. Premo v. Moore, 562
115, 121 22

u.s.

(2011). Simply making conclusory allegations of

deficient performance and prejudice is not sufficient to meet the
Strickland test. Miller v. Johnson, 200 F.3d 274, 282
2000) .

7

(5~

Cir.

IV.
Analysis
In his first ground, movant alleges that the court violated
Fed. R. Crim. P. 32(i) (1) (A) by failing to ascertain whether
movant and his attorney had read and discussed the presentence
report. In his second ground, he alleges that his attorney failed
to disclose, read, and discuss the presentence report with him. 5
The record belies his claims. The court verified at the beginning
of the sentencing hearing that movant and his counsel had
received, read, and reviewed the presentence report. CR Doc. 143
at 4-5. Counsel verified that the report was read to movant in
Spanish and discussed with him in Spanish. Id. Movant had every
opportunity to object or contest his counsel's representations,
but failed to do so.
In his third ground, movant complains that his attorney did
not object to the presentence report. Specifically, he complains
that his attorney did not object to movant's being held
responsible for 480 kilograms of cocaine. The presentence report,
adopted by the court, sets forth the basis for holding movant
responsible for 480 kilograms of cocaine. CR Doc. 65. Moreover,

'In the supporting facts section of the first ground, movant goes so far as to claim that he had to
proceed pro se on appeal without benefit of the presentence report. The record established that the
allegation is specious.
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movant stipulated to the facts in the factual resume establishing
that the conspirators received 40 kilograms of cocaine every
fifteen days from their boss in Mexico. CR Doc. 53.

(According to

the presentence report, forty kilograms of cocaine was delivered
every 15 days for six to eight months; thus, movant could have
been held responsible for an even greater quantity. CR Doc. 65 at
, 27.) Movant offers nothing more than conclusory allegations
regarding objections that could have been made. Counsel's failure
to make meritless objections cannot be ineffective assistance.
United States v. Kimler, 167 F.3d 889, 893

(5th Cir. 1999).

In his fourth ground, movant says his attorney promised him
he would only be punished for eight kilograms of cocaine. This
allegation is insufficient to overcome movant's solemn
declarations in open court that no one had promised him anything
to induce him to plead guilty and that he understood the court
would determine his sentence, which could be up to twenty years.
United States v. Cervantes, 132 F. 3d 1106, 1110

(5th Cir. 1998).

Movant stipulated to the facts that led to him being held
responsible for 480 kilograms of cocaine. To claim that his
attorney told him he would only be held responsible for eight is
incredible in any event.
In his fifth ground, movant contends that his attorney
violated his Sixth Amendment right to counsel because he failed
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to confer with movant before sentencing. 6 In the supporting
facts, he alleges that his complaint is really that his counsel
was unable to speak Spanish. Of course, movant selected his own
counsel to replace the attorney appointed to represent him. And,
movant had ample opportunity to make that complaint known to the
court, if it was true. Movant had the assistance of interpreters
at every hearing and during his interview with the probation
officer relative to the preparation of the presentence report. At
sentencing, movant's counsel informed the court that he and
movant had discussed the presentence report in movant's native
language. CR Doc. 143 at 4-5. Movant never once expressed any
disagreement with counsel's representations; nor did he ever
complain about anything counsel did or failed to do. His
conclusory allegations are simply insufficient to raise a
constitutional issue. United States v. Pineda, 988 F.2d 22, 23
(5th Cir. 1993).

v.
Order
The court ORDERS that all relief sought by movant in his
motion under 28 U.S.C.

6

§

2255 be, and is hereby, denied.

Again, this claim is belied by the record. CR Doc. 143.

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Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(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 January 20, 2017.

District J

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