Dominguez v. USA
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 7/14/2021) (tln)
U.S. DISTRICT COURT
NORTinlRN DISTlllCT OF TEXAS
IN THE UNITED sTATEs DISTRICT cm RT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MARCOS GERALDO DOMINGUEZ,
UNITED STATES OF AMERICA,
(NO. 4: 19-CR-041-A)
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of Marcos Geraldo
Dominguez, movant, under 28 U.S.C.
2255 to vacate, set aside,
or correct sentence by a person in federal custody. The court,
having considered the motion,
the government's response, the
record, including the record in the underlying criminal case,
No. 4:19-CR-041-A, styled "United States v. Juan Ernesto
Hernandez, et al.," and applicable authorities,
finds that the
motion should be denied.
The record in the underlying criminal case reflects the
On February 13, 2019, movant was named along with others in
a four-count information charging him in count three with
conspiracy to possess with intent to distribute 500 grams or
more of a mixture and substance containing a detectable amount
in violation of 21 U.S.C.
§ 846. CR Doc.' 91. On
February 26, 2019, movant appeared before the court with the
intent to enter a plea of guilty without benefit of a written
plea agreement. CR Doc. 120. Movant and his attorney signed a
waiver of indictment. CR Doc. 121. They also signed a factual
resume setting forth the maximum penalties faced by movant, the
elements of the offense, and the stipulated facts establishing
that movant had committed the offense. CR Doc. 122. Movant
testified under oath at arraignment that: He understood that he
should never depend or rely upon any statement or promise by
anyone as to what penalty would be assessed against him and that
his plea must not be induced or prompted by any promises, mental
pressure, threats, force, or coercion; he had discussed with his
attorney how the sentencing guidelines might apply in his case;
the court would not be bound by the stipulated facts and could
take into account other facts; the guideline range could not be
determined until the presentence report ("PSR") had been
prepared; his term of imprisonment would be at least five years
and could be as much as forty years; he understood the elements
of the offense and he admitted that all of them existed; he had
The "CR Doc._" reference is to the number of the item on the docket in the underlying criminal case, No. 4:19-
read and understood the information; he had read and understood
the factual resume and understood everything in it; he was
satisfied with his representation; no threats or promises had
been made to induce him to plead guilty; and, the stipulated
facts in the factual resume were true. CR Doc. 367.
The probation officer prepared the PSR, which reflected
that movant's base offense level was 32. CR Doc. 158, , 34. He
received a two-level increase for possession of a dangerous
weapon, id. ,
35, and a two-level increase for maintaining a
drug premises. Id. , 36. He received a two-level and a one-level
reduction for acceptance of responsibility. Id. , , 42, 43. Based
on a total offense level of 33 and a criminal history category
of II, his guideline imprisonment range was 151 to 188 months.
92. Movant filed objections. CR Doc. 191. The probation
officer prepared and addendum to the PSR. CR Doc. 206.
Movant was sentenced to a term of imprisonment of 151
moths. CR Doc. 260. He appealed. CR Doc. 294. The judgment was
affirmed. United States v. Dominguez, 799 F. App'x 886
Grounds of the Motion
Movant urges three grounds in support of his motion, all
based on ineffective assistance of counsel. Doc. 2 1 at 7. The
motion refers to movant's memorandum, Doc. 2, as setting forth
the supporting facts. Doc. 1 at 7.
Standards of Review
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, 23132
(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
"reference is to the number of the item on the docket in this civil action.
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." Moore v. United States, 598 F.2d 439,
441 (5th Cir. 1979)
(citing Buckelew v. United States, 575 F.2d
(5th Cir. 1978)).
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. Frye, 566 U.S. 133, 147 (2012).
"[Al 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). 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
deficient performance and prejudice is not sufficient to meet
the Strickland test. Miller v. Johnson, 200 F.3d 274, 282
In his first ground, movant complains of counsel's
assistance in connection with, and prior to, the plea. Doc. 1 at
7. He alleges that he was effectively coerced by misinformation
and misadvice of counsel, which rendered his plea involuntary.
Doc. 2 at 9. He says that had he known he could be held liable
for more than the amount of cocaine described in the factual
resume, he would have negotiated a better deal. Id. Or,
alternatively, had he known he could be stuck with "false
enhancements," he would have exercised his right to trial. Id.
Movant does not spell out exactly what his counsel did or
failed to do that fell below the objective standard of
reasonableness.' Strickland, 466 U.S. at 687. His conclusory
allegations are insufficient to overcome the presumption of
competency. Id. at 689; Miller, 200 F.3d at 282. As the
government points out, movant would have faced a higher
guideline range had he not pleaded guilty, since he would not
have received acceptance of responsibility. Doc. 11 at 9.
Moreover, as the court noted at arraignment, movant agreed to
plead guilty because he was only charged in one count of the
information. CR Doc. 367 at 57.
Any contention that movant's plea was not knowing and
voluntary is belied by the record.
"Solemn declarations in open
court carry a strong presumption of verity." Blackledge v.
Allison, 431 U.S. 63,
(1977). His factual resume is likewise
3 Movant refers to a "conflict of interest.'' Doc. 2 at 11. However, to establish such a claim, movant must show that
his attorney acted under the influence of an actual conflict and that such conflict adversely affected movant's
representation. United States v. Culverhouse, 507 F.3d 888, 892 (5th Cir. 2007). A theoretical or speculative conflict
is not enough; movant must show that his counsel was required to make a choice advancing his own interests or the
interests of another client to movant's detriment. United States v. Garcia-Jasso, 472 F.3d 239,243 (5th Cir. 2006);
Beets v. Co1lins, 986 F.2d 1478, 1486 (5th Cir. 1993). If counsel did not make a choice, the conflict remains
hypothetical. Garcia-Jasso, 472 F.3d at 243.
entitled to the presumption. United States v. Abreo, 30 F.3d 29,
(5th Cir. 1994); Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th
Cir. 1985). For a defendant who seeks habeas relief on the basis
of alleged promises inconsistent with representations he made in
open court when entering his plea of guilty to prevail, he must
prove: " ( 1) the exact terms of the alleged promise,
when, where, and by whom the promise was made, and (3) the
precise identity of the eyewitness to the promise." United States
v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). To be
entitled to an evidentiary hearing, the defendant must produce
"independent indicia of the likely merit of [his] allegations,
typically in the form of one or more affidavits from reliable
third parties." Id. "If, however, the defendant's showing is
inconsistent with the bulk of [his]
conduct or otherwise fails
[his] burden of proof in the light of other evidence in
the record, an evidentiary hearing is unnecessary." Id. See also
United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985)
Movant's guilty plea was knowing and voluntary and made with
sufficient awareness of the relevant circumstances and likely
consequences. Bradshaw v. Stumpf, 545 U.S. 175, 183
Movant has failed to provide any independent evidence in support
of any of his contentions that are at variance with the
statements he made, or the answers he gave, while under oath at
the arraignment hearing.
Once a guilty plea has been entered, all nonjurisdictional
defects in the proceedings against the defendant are waived.
United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008). A
guilty plea waives pre-plea ineffective assistance of counsel
unless the movant can show that he would not have pleaded guilty
but for counsel's deficient performance and that he would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59
(1985); Cavitt, 550 F.3d at 441. Thus, the allegation that
movant would have negotiated a better deal is insufficient. As
for the contention that he would have gone to trial, movant
offers nothing but his post hoc conclusory allegation, which is
insufficient. Lee v. United States, 137 S. Ct. 1958, 1967
Movant's second ground alleges that he received ineffective
assistance of counsel in connection with sentencing. Doc. 1 at
7. He complains that counsel failed to object to his base
offense level, the enhancements, and the court's
characterization of movant's background as including "quite a
criminal history.• Doc. 2 at 4-8. It is clear that what movant
is complaining about is his counsel's perception that objecting
too vehemently to the PSR would result in the loss of acceptance
of responsibility. Id. at 9
When making factual findings for sentencing purposes, the
court may consider any information that bears sufficient indicia
of reliability. United States v. Harris, 702 F.3d 226, 230
Cir. 2012). The standard is not onerous; it simply means that
the facts used by the court must be reasonably reliable. United
States v. Malone, 828 F.3d 331, 337 (5th Cir. 2016). The results
of a law enforcement investigation can be relied upon. United
States v. Fuentes, 775 F.3d 213, 220
(5th Cir. 2014). Statements
of coconspirators are sufficiently reliable to form a basis of a
finding. United States v. Rico, 864 F.3d 381, 386 (5th Cir.
2017). Even uncorroborated hearsay may be sufficiently reliable.
828 F.3d at 337; United States v. Gaytan, 74 F.3d 545,
(5th Cir. 1996). And, because a presentence report generally
bears a sufficient indicia of reliability, the court may adopt
the facts asserted therein without further inquiry if they have
an adequate evidentiary basis and the defendant does not present
rebuttal evidence or otherwise demonstrate that the information
therein is materially untrue, inaccurate, or unreliable. Harris,
702 F.3d at 230.
Movant's base offense level was determined based on
reliable information as set forth in the PSR. An unidentified
coconspirator ("UCC") delivered 10 kilograms of cocaine to
movant on two separate occasions in October 2014. CR Doc. 158,
1 21. The UCC observed large amounts of cash, drug scales, a
money counting machine, and several firearms in movant's
residence. Id. Movant admitted that he organized a shipment of
15 kilograms of cocaine from Mexico with the intent to
distribute it. CR Doc. 122 at 2 CR Doc. 158,
1 22. A base
offense level of 32 applied because the offense involved at
least 15 kilograms but less than 50 kilograms of cocaine. CR
1 34. Thus, the base offense level would have been the
same whether the court took into account the 20 kilograms
delivered to movant by the UCC. An objection would have been
pointless and might have cost movant acceptance of
The two-level increase for possession of a dangerous weapon
is likewise clearly supported by the PSR. The UCC saw weapons at
movant's residence when delivering the second shipment of
cocaine. CR Doc. 158,
21. In addition, numerous weapons' were
discovered when a search was conducted of movant's residence,
along with a digital money scale, clear plastic narcotics
packaging, black tape, and five cellular telephones. Id.
Movant's memorandum refers only to one weapon that movant says he used for hunting. Doc. 2 at 6. He does not
refer to the others.
it was not clearly improbable that the firearms were
connected with the offense. USSG 2Dl.l(b) (1) cmt. n. ll(A). See
United States v. Hooten, 942 F.2d 878, 882 (5th Cir.
1991) (enhancement should be applied where weapon is found in the
same location where drugs or drug paraphernalia is stored or
where part of transaction occurred).
As for the premises enhancement, the UCC twice delivered 10
kilograms of cocaine to movant at his residence, where other
drug paraphernalia and weapons were seen. Years later, when
movant was arrested, agents found firearms and drug
paraphernalia at the same residence. The premises enhancement
was properly applied. CR Doc. 158,
Benitez, 809 F.3d 243, 250
36; United States v.
(5th Cir. 2015).
Movant has not come forward with any evidence to show that
there would have been the slightest merit to the objections he
says should have been lodged to the PSR. Counsel cannot have
been ineffective for failing to lodge meritless objections.
United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
Movant additionally urges that counsel should have objected
to the court's characterization of his background at sentencing.
The court was entitled to consider prior criminal conduct not
resulting in a conviction. United States v. Lopez-Velasquez, 526
F.3d 804, 807
(5th Cir. 2008). The PSR provided more than a bare
arrest record and the court was entitled to find the information
reliable. United States v. Windless, 719 F.3d 415, 420
2013); United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991).
Movant has made no attempt to show that any of the facts recited
by the court were materially untrue, inaccurate, or unreliable.
Harris, 702 F.3d at 230. Movant was sentenced within the
guidelines. He has not shown that the court erred. Nor has he
shown that his sentence would have been any different had his
counsel objected as he suggests should have been done.
Finally, movant alleges that he received ineffective
assistance of counsel on appeal. Doc. 1 at 7. He briefly
mentions this allegation in his memorandum, making the
conclusory allegation that counsel erred in failing to raise
procedural, rather than substantive, error. Doc. 2 at 8-9, 12.
Again, his conclusory allegations are insufficient to establish
ineffective assistance. Miller, 200 F.3d at 282. Movant has not
shown a reasonable probability that, but for counsel's error
(assuming there was one), he would have been afforded relief on
appeal. United States v. Reinhart, 357 F.3d 521, 530 (5th Cir.
2004). As the Fifth Circuit noted, the court •was in the best
position to evaluate all the evidence, as well as the need for
the sentence to further the other objectives set forth in
§ 3553(a) ,• and its decision was entitled to deference.
Dominguez, 799 F. App'x at 886.
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 July 14, 2021.
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