Alvarado-Casas v. United States of America

Filing 2

MEMORANDUM OPINION AND ORDER. Alvarado-Casas' 1 Motion to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. C-10-316 (Defendant No. 1) is Denied with prejudice. He is also Denied a Certificate of Appealability. (Signed by Judge John D. Rainey.) Parties notified. (yhausmann, 6)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
SERVANDO ALVARADO-CASAS,
Defendant/Movant.

§
§
§
§
§
§
§

Criminal No. C-10-316-1
(Civil No. C-14-342)

MEMORANDUM OPINION & ORDER
Defendant/Movant Servando Alvarado-Casas’ (Alvarado-Casas) filed a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. D.E. 243.1 The Court has reviewed
the motion and concludes that summary dismissal is appropriate because “it plainly appears from
the motion . . . and the record of prior proceedings that the moving party is not entitled to relief. .
.” Rule 4(b), RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT
COURTS (2014) (2255 RULES).
I. JURISDICTION
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
II. FACTS AND PROCEEDINGS
Alvarado-Casas was indicted in March 2010 in a 13-count indictment that charged him with
conspiring with others to transport unlawful aliens by means of a motor vehicle, which caused
serious bodily injury to and placed in jeopardy the lives of other persons, along with aiding and
abetting each other. D.E. 1. He was arrested in early May, and a second indictment was handed
down. D.E. 21, 25.

1

Docket entry references are to the criminal case.

1

A.

Plea Agreement and Rearraignment
Alvarado-Casas entered into a written plea agreement with the Government and was

rearraigned on July 19, 2010. D.E. 74. In exchange for his guilty plea and his waiver of appellate
and § 2255 rights, the Government agreed to dismiss the remaining counts against Alvarado-Casas
and recommend that he receive the maximum credit for acceptance of responsibility and a sentence
within the guideline range. Id., ¶¶ 1-2. The plea agreement waiver read as follows:
Defendant waives his/her right to appeal both the conviction and the
sentence imposed. The Defendant is aware that 18 U.S.C. § 3742
affords a defendant the right to appeal the sentence imposed. The
defendant waives the right to appeal the sentence imposed or the
manner in which it was determined. The defendant may appeal only
(a) a sentence imposed above the statutory maximum; or (b) an
upward departure from the Sentencing Guidelines which had not been
requested by the United States, as set forth in 18 U.S.C. § 3742(b).
Additionally, the defendant is aware that 28 U.S.C. § 2255, affords
the right to contest or “collaterally attack” a conviction or sentence
after the conviction or sentence has become final. The defendant
waives the right to contest his/her conviction or sentence by means
of any post-conviction proceeding.
D.E. 74 at ¶ 7 (emphasis in original). The agreement was signed by both Alvarado-Casas and his
counsel. Id., p.5.
At Alvarado-Casas’ rearraignment, the Court questioned him under oath to ensure that his
plea was voluntary and knowing. The Court confirmed that counsel read and explained the plea
agreement to Alvarado-Casas before he signed it, Alvarado-Casas believed he understood the
agreement, and there were no offers made to him other than included in the agreement. D.E. 194,
p. 15. The Court advised Alvarado-Casas that there were only limited circumstances in which he
could appeal his sentence. Id., p.19.

B.

Presentence Investigation Report and Sentencing
2

At the conclusion of the rearraignment, the Court ordered the U.S. Probation Office to
prepare a Presentence Investigation Report (PSR). D.E. 75. The PSR calculated Alvarado-Casas’
base offense level as 12 for transportation of unlawful aliens, which was enhanced to a level of 37
for multiple reasons: more than 100 aliens were smuggled, a minor was transported without a parent
or grandparent, the offense involved intentionally or recklessly creating a substantial risk of death
or injury, a person sustained permanent or life-threatening bodily injury, Alvarado-Casas was a
leader/organizer, and Alvarado-Casas used a minor in the commission of the offense. Id., ¶¶ 51-65.
For the firearm offense in Cause No. 2:10-CR-706-1, the adjusted offense level totaled 24. Id., ¶¶
66-70. After the multiple-count adjustment, Alvarado-Casas had an adjusted offense level of 37, and
after credit for acceptance of responsibility, a total offense level of 34. Id., ¶¶ 71-75.
Alvarado-Casas’ criminal history category was III, based upon criminal history points of 4.
Id., ¶¶ 78-80. Alvarado-Casas’ guideline sentencing range was 188-235 months with a statutory
maximum sentence of 20 years for alien trafficking and a statutory maximum of 10 years for the
firearms charge. Id., ¶¶ 95-97.
Alvarado-Casas’ counsel filed written objections to the PSR. D.E. 103. Specifically, he
objected to increases in Alvarado-Casas’ offense level for transportation of a minor, the application
of enhancement for endangerment and serious bodily injury, leadership role, and use of a minor in
the offense. Id. He also argued that Alvarado-Casas’ criminal history was over-represented. Id.
Sentencing was held on July 8, 2010, during which counsel argued his objections to the
Court. D.E. 192. pp. 3-8. The Court sustained the objection regarding criminal history and adjusted
Alvarado-Casas’ criminal history category to II, which reduced the guideline range to 168 to 210
months. Id., pp. 7-8. The Court sentenced Alvarado-Casas to 120 months for the firearm charge and
190 months for the trafficking charge, to be served concurrently and to be followed by three years
3

supervised release for each count, also to be served concurrently. Id. The Court reminded AlvaradoCasas of his waiver of appeal in his plea agreement. Id., p. 14.
Alvarado-Casas filed a timely § 2255 motion claiming in part that counsel failed to file a
notice of appeal. After full briefing and an evidentiary hearing, this Court dismissed the § 2255
motion and reentered the criminal judgment to allow Alvarado-Casas to file an out-of-time appeal.
The Fifth Circuit found Alvarado-Casas’ guilty plea was voluntary and his appeal waiver
enforceable, but nonetheless ruled on the merits of his appeal because he raised issues related to the
voluntariness of his guilty plea. United States v. Alvarado-Casas, 715 F.3d 945 (5th Cir. 2013).
III. MOVANT’S ALLEGATIONS
In his § 2255 motion, Alvarado-Casas raises the following grounds for relief: 1) counsel was
ineffective because he failed to object to the enhancements applied to increase his offense level as
to the number of aliens, 2) the district court erred by applying the reckless endangerment
enhancement, 3) transporting a minor should not have been applied because he could not have
foreseen that a minor would be transported, 4) the enhancement for leader/organizer was not
warranted, and 5) the enhancement for use of a minor to commit the offense was unwarranted. Next
Alvarado-Casas further claims he did not understand his appeal waiver, counsel misrepresented his
sentencing exposure by advising him that his maximum sentence was ten years, and his criminal
history was over-represented.

IV. DISCUSSION
A.

28 U.S.C. § 2255
There are four cognizable grounds upon which a federal prisoner may move to vacate, set
4

aside, or correct his sentence: 1) constitutional issues, 2) challenges to the district court’s jurisdiction
to impose the sentence, 3) challenges to the length of a sentence in excess of the statutory maximum,
and 4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United
States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). “Relief under 28 U.S.C. § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United
States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
B.

The Court May Not Address Issues Raised and Decided on Appeal
A number of Alvarado-Casas’ claims in this proceeding were raised and decided against him

on appeal, such as the voluntariness of his guilty plea, the applicability of the enhancements to his
sentence, and the voluntariness of his appeal waiver. See Alvarado-Casas, 715 F.3d at 954-56.
“It is settled in this circuit that issues raised and disposed of in a previous appeal from an
original judgment of conviction are not considered in § 2255 Motions.” United States v. Kalish, 780
F.2d 506, 508 (5th Cir. 1986) (citing United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980)).As a
result, Alvarado-Casas may not relitigate the voluntariness of his guilty plea or the voluntariness of
his appeal waiver, including the waiver of his right to file a motion to vacate. Accordingly, the Court
turns to the effect of his waiver of § 2255 rights on his remaining claims. A knowing and voluntary
waiver of his right to file a § 2255 motion precludes consideration of all of Alvarado-Casas’ claims.

V. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c)(1)(A). Although Alvarado-Casas has not yet filed a notice of appeal, the § 2255 Rules
5

instruct this Court to “issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” Rule 11, § 2255 Rules.
A Certificate of Appealability (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). “The COA
determination under § 2253(c) requires an overview of the claims in the habeas petition and a
general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
To warrant a grant of the certificate as to claims denied on their merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This standard requires
a § 2255 movant to demonstrate that reasonable jurists could debate whether the motion should have
been resolved differently, or that the issues presented deserved encouragement to proceed further.
United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002) (relying upon Slack, 529 U.S. at 483-84).
As to claims that the district court rejects solely on procedural grounds, the movant must
show both that “jurists of reasons would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 484 (emphasis added).
Based on the above standards, the Court concludes that Alvarado-Casas is not entitled to a
COA on any of his claims. That is, reasonable jurists could not debate the Court’s resolution of his
claims, nor do these issues deserve encouragement to proceed. See Jones, 287 F.3d at 329.
VI. CONCLUSION
For the foregoing reasons, Alvarado-Casas’ motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255 (D.E. 243) is DENIED with prejudice pursuant to Rule 4(b). He is also
DENIED a Certificate of Appealability
6

It is so ORDERED.
SIGNED on this 10th day of February, 2015.

JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE

7