Puentes v. USA

Filing 16

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 Gover ning 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 Senior Judge John McBryde on 10/25/2018) (tln)

IN THE UNITED STATES DISTRIC COU T
NORTHERN DISTRICT OF TEX S
FORT WORTH DIVISION

OCT 2 5 2018

C\i~U<. U.S. DISTRICT COURT
JOSE MILTON PUENTES,

Deputy

§
§

Movant,

§
§

vs.

§
§

UNITED STATES OF AMERICA,

NO. 4:18-CV-480-A
(NO. 4:15-CR-079-A)

§
§

Respondent.

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Jose Milton Puentes
(•movant") under 28 U.S.C.

§

2255 to vacate, set aside, or

correct sentence. After having considered such motion, its
supporting memorandum, the government's response, and pertinent
parts of the record in Case No. 4:15-CR-079-A, styled "United
States of America v. Jose Milton Puentes,• 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:
Ono April 15, 2015, movant was named in a one-count
indictment charging him with distribution of a controlled
substance, in violation of 21 U.S.C.

§§

84l(a) (a)

&

(b) (1) (B). CR

Doc. 1 3. On July 17, 2015, movant appeared before the court with
the intent to enter a plea of guilty to the offense charged
without benefit of a plea agreement. CR Doc. 21. Movant and his
attorney signed a factual resume setting forth the elements of
the offense, the maximum penalty movant faced, and the stipulated
facts supporting movant's guilt. CR Doc. 23. Under oath, movant
stated that no one had made any promise or assurance of any kind
to induce him to plead guilty. Further, movant stated his
understanding that the guideline range was advisory and was one
of many sentencing factors the court could consider; that the
guideline range could not be calculated until the presentence
report

("PSR") was prepared; the court could impose a sentence

more severe than the sentence recommended by the advisory
guidelines and movant would be bound by his guilty plea; movant
was satisfied with his counsel and had no complaints regarding
his representation; and, movant and counsel had reviewed the
factual resume and movant understood the meaning of everything in
it and the stipulated facts were true. CR Doc. 50.
According to the PSR, movant's base offense level was 34. CR
Doc. 26

~

27. Movant received a two-level increase for possession

of a dangerous weapon,

id.

~

28, a two-level increase for

'The "CR Doc._" reference is to the number of the item on the docket in the underlying
criminal case, No. 4: 15-CR-079-A.
2

importation from Mexico, id. , 29, a two-level increase for
maintaining a premises for manufacturing or distributing a
controlled substance, id. , 30, and a two-level increase for
being a organizer, leader, manager, or supervisor, id. ,

32.

Movant did not receive any adjustment for acceptance of
responsibility. Id. , 36. Based on his total offense level of 42
and a criminal history category of I, and the statutorily
authorized maximum sentence of 40 years, the guideline range was
360-480 months. Id. ,

75. Movant filed ten objections to the PSR.

CR Doc. 44. The probation officer issued an addendum to the PSR
rejecting each of movant's objections. CR Doc. 30. In response,
movant renewed all of his previous objections. CR Doc. 45. By
order signed October 26, 2015, the court gave notice that it had
tentatively concluded that the objections were without merit. CR
Doc. 32.
On October 30, 2015, movant was sentenced to a term of
imprisonment of 360 months, to be followed by a 48-month term of
supervised release. CR Doc. 38. At the sentencing hearing, movant
pursued all of his objections and presented the testimony of his
mother. CR Doc. 51. The objections were overruled and the court
adopted the findings of the PSR as supplemented by rulings in
open court. Id. The court noted that the same sentence would have

3

been imposed even if some of the objections had been sustained.
Id. Movant appealed and his sentence was affirmed.
United States v. Puentes, 681 F. App'x 341 (5th Cir. 2017).
II.
Grounds of the Motion
Movant urges ten grounds in support of his amended motion.'
Nine of them concern alleged ineffective assistance of counsel.
The last concerns the length of the sentence. The grounds are
worded as follows:
Ground One: Whether counsel rendered ineffective
assistance by failing to object properly to the
§ 2Dl.l(b) (1) enhancement because the government failed
to prove that the handgun was operable
Ground Two: Whether trial and appeals counsel rendered
ineffective assistance by failing to raise that the
district court clearly erred in not granting a
reduction for acceptance of responsibility under the
guidelines § 3El. 1 (a) (b)
Ground Three: Whether Puente's trial attorney rendered
ineffective assistance for not challenging properly to
the incorrect increase to his offense level under
U.S.S.G. § 381.l(c)
Ground Four: Whether Puentes entered a voluntary,
knowingly, and intelligently plea agreement with
sufficient legal advice by his counsel
Ground Five: Whether trial and appellate attorney
provided ineffective assistance by failing to challenge
an ex post facto claim
'By order signed July 17, 2018, the couti granted movant leave to amend and directed that he use
the form to be provided to him by the clerk to do so. The clerk received the amended motion for filing on
July 30, 2018.
4

Ground Six: Whether trial and appellate counsel
rendered ineffective assistance by not clearifying
[sic] that what was presented as a .22-pistol from
assessment of § 2Dl.l(b) (1) was in fact a .22-hunting
rifle legally purchased through a sport and goods store
in California
Ground Seven: Whether trial and appellate attorneys
provided ineffective assistance for not challenging the
increase enhancement for importation of methamphetamine
under U.S.S.G. § 2Dl.l(b) (5)
Ground Eight: Whether trial counsel and appellate
attorneys provided ineffective assistance for not
challenging the increase enhancement for maintaining a
premises under § 2Dl. 1 (b) ( 12)
Ground Nine: Whether trial counsel and appellate
attorneys provided ineffective assistance for not
challenging the increase enhancement for organizer,
leader, or manager under § 3Bl.l(c)
Ground Ten: Whether Puente's sentence was
disproportionate and in disaccord to the 18 U.S.C.
§ 3553 general principals
Doc. 3 10 at PageID 4 62-64. The motion is supported by a
memorandum. Doc. 11.
III.
Standards of Review
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.
3

The "Doc.

4

United States v. Frady, 456 U.S.

"reference is to the number of the item on the docket in this civil action.

The PageID _"reference is to the page number assigned by the court's electronic filing system.

5

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.

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); United States
v. Placente, 81 F.3d 555, 558 (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)).

6

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. 668, 687 (1984); see also
Missouri v. Frve, 566 U.S. 133, 147 (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, 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."
Cullen v. Pinholster, 563 U.S. 170, 189 (2011)
Strickland, 466 U.S. at 686).

(quoting

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. Simply making conclusory allegations of
7

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

(5th Cir.

2000) .
IV.

Analysis
Movant's first and sixth grounds concern the two-level
enhancement for possession of a dangerous weapon. In support of
his first ground, he argues that the government did not actually
test fire the weapon to determine whether it was operable. But
whether the gun was operable is not dispositive. United States v.
Mitchell, 31 F.3d 271, 278

(5th Cir. 1994). The case movant

cites, United States v. Abdul-Aziz, 486 F.3d 471 (8th Cir. 2007),
is not to the contrary. As the Fifth Circuit has noted, mere
presence of a gun can escalate the danger of a drug transaction.
Mitchell, 31 F.3d at 278. In support of his sixth ground, movant
argues that his trial and appellate counsel were ineffective in
failing to clarify whether the .22 was a pistol or a rifle.
Whatever the nature of the weapon, the fact is that it was found
at the site where drugs were found and drug-trafficking was
ongoing. See Puentes, 681 F. App'x at 344-45. In any event,
movant offers nothing other than speculation to support these
grounds.

8

Movant's second ground is that counsel provided ineffective
assistance by failing to raise that the court clearly erred in
not granting him a reduction for acceptance of responsibility. In
this regard, movant says that when agents came to his house, he
pointed to the woodpile as the place where drugs were stored.
Doc. 11 at 4. He then argues that any comments to the probation
officer about his involvement in drug trafficking were harmless.
Id. at 4-5. The PSR and addendum explained why movant was not
entitled to acceptance of responsibility. He falsely denied
relevant conduct. There was nothing his counsel could have done
to rectify that situation. The court was entitled to rely on the
information contained in the PSR. United States v. alaniz, 726
F.3d 586, 619

(5th Cir. 2013). Movant's counsel was not required

to raise a frivolous issue.
In his third ground, movant says that his counsel was
ineffective in failing to properly challenge the enhancement for
role in the offense. His argument is based on speculation as to
what the government knew concerning the cartel of which movant
was part. He says his attorney was •ineffective for not
presenting and exhibiting the actual circumstances of his case,"
Doc. 11 at 7, but provides no evidence of what could or should
have been presented. Nor does he show how such evidence would

9

have made any difference in the outcome. The PSR and addendum
clearly show why the enhancement was applicable.
Movant's fourth ground attacks his plea of guilty. He argues
in a conclusory way that his counsel "provided to him only
general advice in regard to him entering his plea agreement,

5

and

no advice in regard to the applicable law and his options during
the proceedings." Doc. 11 at 7. He also says his counsel failed
to explain the penalty range he faced. Id. And, he says that
counsel told him he would be out of prison in less than ten
years. Id. at 8. These allegations are wholly unsupported. That
movant's plea was knowing an voluntary is established by the
record. CR Doc. 50.
In his fifth ground, movant says his trial and appellate
counsel were ineffective in failing to challenge an ex post facto
claim. Without any support whatever, movant argues that the court
erred in applying the 2015, rather than 2013, sentencing
guidelines. He says that the mistake resulted in an increased
sentencing exposure of 68 to 115 months. Doc. 11 at 10. Movant is
correct that a sentence that is increased due to a guideline
amendment after the offense was committed can violate the ex post
facto clause. Peugh v. United States, 569 U.S. 530, 541 (2013)

'Of course, movant had no plea agreement.

10

However, that did not occur in movant's case. The probation
officer used the 2014 Guidelines Manual to calculate the
sentence. CR Doc. 26 , 26. Thus, movant received the benefit of
Amendment 782, which caused his base offense level to be 34
rather than 36. Compare U.S.S.G.
§

§

2Dl.l(c) (3) (2014) and U.S.S.G.

2Dl .1 (c) (2) (2013).
Movant's seventh ground, that his counsel was ineffective

in failing to challenge the two-level enhancement for importation
based on movant's lack of knowledge regarding source, is
foreclosed by the law of the Fifth Circuit. United States v.
Serfass, 684 F.3d 548, 550 (5th Cir. 2012).
In his eighth ground, movant says that his trial and
appellate counsel were ineffective for failing to challenge the
enhancement for maintaining a drug premises. Again, movant
presents nothing but conclusory arguments (and no evidence) in
support of this ground.
In his ninth ground, movant argues that his trial and
appellate counsel were ineffective for not challenging his
enhancement for being an organizer, leader, or manager. He offers
no evidence to support his conclusory allegations. His trial
counsel did object and present testimony, but the objection was
overruled. Movant simply has not shown that the outcome would
have been different had he prevailed.
11

Finally, movant argues that his sentence was
disproportionate and in disaccord with the principles of 18
U.S.C.

§

3553. This ground could and should have been raised on

appeal and cannot be presented here, where movant has not shown
cause and prejudice. United States v. Guerra, 94 F.3d 989, 993-94
(5th Cir. 1996).

v.
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 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 October 25, 2018.

12