Salazar-Tovar v. USA
Filing
4
MEMORANDUM OPINION AND ORDER denying with prejudice Petitioner's 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 5:11cr11 (Defendant No. 2). The government's 3 Motion for Summary Judgment, or in the alternative, to dismiss, shall be, and the same hereby is GRANTED. No certificate of appealability shall issue as reasonable jurists would not differ on the outcome of this case. (Signed by Visiting Judge Joseph M. Hood) Parties notified. (dmorales)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO
UNITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
GUADALUPE SALAZAR TOVAR,
Defendant.
**
**
**
Criminal Action No.
5:11-CR-11-S-02
(Civil Action No. 12-CV-78)
MEMORANDUM OPINION & ORDER
**
**
Defendant Guadalupe Salazar-Tovar (“Salazar-Tovar”) having
filed a timely motion to vacate sentence pursuant to 28 U.S.C. §
2255.
The government having filed a response to the same,and
the Court being advised,
IT IS ORDERED that Salazar-Tovar’s motion be, and the same
hereby is, DENIED for the reasons which follow.
I.
JURISDICTION
Salazar-Tovar seeks § 2255 relief from the amended judgment
of conviction and sentence imposed by the district court on May
26, 2011 (D.E. 76 (Hood, V.J.)).
II.
STATEMENT OF THE CASE
A. Course of Proceedings and Disposition
On January 19, 2011, Salazar-Tovar and Eliu Rivera-Mendez
were charged by a federal grand jury in the Laredo Division of
the
Southern
indictment,
District
with
of
illegal
Texas,
in
possession
a
six
of
count
a
superseding
machine
gun,
in
violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (count one);
possession of firearms by an alien illegally and unlawfully in
the United States, in violation of 18 U.S.C. §§ 922(g)(5)(A),
924(a)(2) (count two); smuggling goods from the United States,
in violation of 18 U.S.C. §§ 554 and 2 (count three); conspiracy
to smuggle goods from the United States, in violation of 18
U.S.C. §§ 554, 371, 2, (count four); attempt to export hand
grenades from the United States, in violation of 18 U.S.C.
554
(count
five);
and
conspiracy
to
smuggle
goods
from
§
the
United States, in violation of 18 U.S.C. §§ 554, 371 and 2
(count six).
On March 14, 2010, pursuant to a plea agreement with the
government, Salazar-Tovar entered a plea of guilty to count five
of the indictment (D.E. 49, 51, 52, 57). As part of the plea
agreement, Salazar-Tovar agreed to waive his right to appeal the
sentence and to collaterally attack his conviction and sentence,
including filing a § 2255 Motion (D.E. 51).
On May 26, 2011, the undersigned sentenced Salazar-Tovar to
serve 46 months of imprisonment, followed by three years of
supervised release.(D.E. 76).
Consistent with his obligations
in the plea agreement, Salazar-Tovar did not appeal. See D.E. 75
(Notice of Non-Appeal). Inconsistent with his plea agreement, he
filed the instant § 2255 motion on May 18, 2012 (D.E. 85).
B. Statement of Facts Underlying the Conviction and Sentence
1. Offense conduct.
The
plea
agreement
Government
contained
Salazar-Tovar
the
following
entered
into
“Factual
Basis
with
for
the
Guilty
Plea”:
15. Defendant is pleading guilty because he/she is
guilty of the charges contained in COUNT FIVE of the
Superseding Indictment, and the facts set forth by the
United States meet the elements of the crime he/she is
pleading guilty to on this date. If this case were to
proceed to trial, the United States could prove each
element of the offense beyond a reasonable doubt. The
following facts, among others, would be offered to
establish the defendant’s guilt:
On November 30, 2010, a confidential informant
(hereinafter “CI”) advised agents with the United
States [B]ureau of Alcohol, Tobacco, [F]irearms and
Explosives (ATFE) that defendant ELIU RIVERAMENDEZ
(hereinafter “RIVERA”) had contacted the CI to tell
him that “Lupe”, later identified as defendant
GUADALUPE SALAZAR-TOVAR (hereinafter SALAZAR), was
interested in buying weapons. On the same day, the CI
placed a consensually monitored phone call to “Lupe”
who
advised
undercover
agents
(hereinafter
UA),
believing them to be illegal weapon suppliers, that he
wanted to purchase Machine guns and hand grenades.
Defendant SALAZAR placed a tentative order for eight
(8) machine guns and twenty (20) hand grenades,
pending his confirming with the “actual buyers.”
On December 2, 2010, Defendant SALAZAR confirmed
the prior order for the weapons and agreed on a price
of $10,400 (US). UA advised that they had thirty (30)
hand grenades to sell if SALAZAR wanted to purchase
instead of only the original twenty (20) hand
grenades. SALAZAR stated he would talk to the buyers
to recommend buying the additional grenades. SALAZAR
told UA that the weapons were to be crossed into
Mexico.
On December 6, 2010, Defendant SALAZAR again
confirmed the original purchase of eight (8) machine
guns and twenty (20) hand grenades. On December 7,
2010, undercover agents with the United States Bureau
of Alcohol, Tobacco, Firearms, and Explosives (ATFE)
confirmed a meeting with defendants Eliu RIVERA-MENDEZ
and GUADALUPE SALAZAR-TOVAR at their request to
purchase machine guns and fragmentation grenades.
Defendants traveled in SALAZAR's truck, with SALAZAR
driving, to have a face-to-face meeting with the
undercover agents who were posing as the weapons
sellers.
Defendant RIVERA exited the truck and
entered the agents' car. SALAZAR remained in the
truck. In the agents' car, RIVERA viewed and handled a
fully automatic AR-type rifle in the presence of an
UA, who confirmed to RIVERA that it was a fully
automatic weapon, and also demonstrated to RIVERA how
to manipulate the selector switch to full automatic.
The defendant handled the weapon, and manipulated the
selector switch. Defendant RIVERA was also shown a
hand grenade for his inspection. After approving both
weapons, RIVERA told UA that he had the $10,400 cash
for the purchase. RIVERA returned to the truck where
SALAZAR had remained, and then followed the UA's
vehicle to a meeting place to conduct the actual
weapons transaction.
At the meeting, the defendants delivered $10,400
cash to the agent for the eight (8) machine guns and
to
the
twenty
(20)
M-67
hand grenades Unknown
defendants, only four (4) of the delivered rifles were
fully automatic and fully functioning machine guns.
The other four (4) assault rifles were semi-automatic.
Additionally, and unknown to the defendants, the hand
grenades which were actually delivered were "prop"
(non-functioning) devices.
The defendants believed,
nevertheless, that all eight (8) rifles were fully
automatic and that the twenty (20) hand grenades were
fully-functioning destructive devices. At the time of
purchase, the automatic weapons and the hand grenades
were again displayed and handled by both defendants.
During the purchase, the defendants stated that the
weapons were not for them but destined for Mexico,
specifically to Nuevo Laredo. After taking physical
possession of the weapons, Defendants were arrested
after attempting to flee.
After
rights
advisement
and
waiver,
both
Defendants admitted that they purchased the four (4)
machine guns, the four (4)semi-automatic assault
weapons believing them to be fully automatic machine
guns, and the prop hand grenades, believing them also
to be fully functioning hand grenades, with the intent
of transporting them into Mexico. SALAZAR stated that
a Mexican truck driver was going to smuggle the
weapons into Mexico after receiving them from the
Defendants, and would pay $200 to each defendant.
RIVERA admitted that he expected to be paid about $500
for helping in the transaction, and that he knew that
the weapons were going to be smuggled into Mexico.
One of the fully automatic machine guns is identified
as a Bushmaster .223 caliber, Model XM15-E2S, machine
gun, with the serial number BFI424708. Defendants
RIVERA and SALAZAR admitted to paying the UC agents
the $10,400 cash for the weapons. They also admitted
that they were nationals and citizens of Mexico
without permission or authority to be or enter the
United States.
An inventory of SALAZAR's truck resulted in the
discovery of defendant's personal insurance paperwork
from Pronto Insurance Agency with hand-written notes
on the purchase on the reverse:
"20 pinas - 4000" which is translated as "20
grenades for $4,000".
"8 juetes - 6400 ... 10400" which is translated
as "8 machine gunsfor $6,400 total $10,400".
The defendant judicially confesses and admits
that on December 7, 2010, he did fraudulently and
knowingly attempt to export and send from the United
States to the Republic of Mexico twenty (20) hand
grenades (military designation M-67), contrary to the
laws and regulations of the United States, to wit, the
Arms Export Control Act, Export of Arms and Munitions,
and did purchase said M-67 hand grenades prior to
exportation, knowing the same to be intended for
exportation contrary to the laws and regulations of
the United States.
(D.E. 51, p. 7-11 ). Salazar-Tovar acknowledged that these facts
were true by signing the plea agreement. (D.E. 51, p. 14).
2. Plea Agreement and Rearraignment
In addition to the factual basis Salazar-Tovar agreed to, in the
Plea Agreement, inter alia, he expressly waived his right to
collaterally attack his conviction or sentence in a 2255 motion,
as follows:
8. Defendant is aware that Title 18 U.S.C. § 3742
affords a defendant the right to appeal the sentence
imposed. The defendant agrees to waive the right to
appeal the sentence imposed or the manner in which it
was determined. Additionally, the Defendant is aware
that Title 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. Defendant waives the right to contest his/her
conviction or sentence by means of any post-conviction
proceeding.
(D.E. 51, p. 4). Salazar-Tovar signed the Plea Agreement, as
well as the “Plea Agreement Addendum,” which stated:
I have consulted with my attorney and fully understand
my rights with respect to the Superseding Indictment
pending against me. My attorney has fully explained
and I understand all my rights with respect to the
provisions
of
the
United
States
Sentencing
Commission’s Guidelines Manual which may apply in my
case. I have read and carefully reviewed every part of
this plea agreement with my attorney. I understand
this agreement and I voluntarily agree to its terms.
(D.E. 52, p.2).
At
waiver
the
of
rearraignment
the
right
to
hearing,
plead
Salazar-Tovar
guilty
before
a
executed
United
a
States
District Judge as well as a consent to proceed before a United
States
Magistrate
Salazar-Tovar
Judge.
agreed
to
(D.E.
plead
49,
p.
guilty
1).
to
In
count
open
five
court,
of
the
Superseding Indictment, the Government summarized the written
plea agreement, the Court explained that the district court may
consult the sentencing guidelines in determining his sentence
and
explained
Magistrate
orally
and
the
Judge
in
range
found
writing
of
that
to
punishment.
Salazar-Tovar
enter
the
(D.E.
who
guilty
57).
had
plea
The
consented
before
the
Magistrate Judge, “fully understands the nature of the charges
and
penalties,”
and
“understands
his
Constitutional
and
statutory rights and wishes to waive those rights.” (D.E. 57, p.
2).
The Magistrate also found that Salazar-Tovar’s plea “is
made freely and voluntarily,” and that he “is competent to enter
this plea of guilty,” and that “there is an adequate factual
basis for this plea.” (D.E. 57, p. 2).
The Magistrate Judge
recommended that the district court accept the guilty plea and
enter final judgment of guilt against the
defendant. Id. In his Report and Recommendation to the district
court, the Magistrate Judge noted that “the parties may file
objections
to
this
Report
and
Recommendation
.
.
.
within
fourteen days after being served with a copy of the Report and
Recommendation. (D.E. 57, p. 2).
objections.
Salazar-Tovar did not file any
In
addition
Recommendations,
to
the
the
Magistrate
transcript
of
the
Judge’s
Report
and
hearing
reveals
that
Salazar-Tovar acknowledged in open court that he understood the
charges against him and pleaded guilty. (D.E. 93, p. 7).
also
acknowledged
that
the
signature
on
the
written
He
Plea
Agreement was his, that he had reviewed the document with his
attorney
before
he
signed
it,
and
swore
under
oath
that
everything in the written plea agreement was true and correct.
(D.E. 93, p. 7).
He testified that he understood that the
maximum penalty for the charge in count five is not more than 10
years
in
prison.
(D.E.
93,
p.
10).
He
testified
that
he
understood that as he is a native and citizen of another country
(Mexico), when he is finished serving his sentence he will be
formally
deported,
excluded,
country. (D.E. 93, p. 11).
or
removed
back
to
his
home
The Magistrate Judge reviewed the
agreements in the Plea Agreement, including that Salazar-Tovar
agrees to give up his right to appeal and his right to come back
later and complain about his detention, sentence, or conviction
-“known as a post-conviction collateral attack.”
The defendant
acknowledged
in
that
that
is
what
he
agreed
to
the
plea
agreement, that is, that “[He] won’t be able to come back and
complain about the sentence. [He] cannot complain about this
case. That is part of [his] agreement.” (D.E. 93, p. 13 – 14).
He also testified that nobody made any other promises to him
other than those in the plea agreement. (D.E. 93, p. 17).
He
testified that he understood that he was giving up his right s
to
a
trial.
reviewed
(D.E.
again
93,
the
p.
19).
consequences
After
of
a
the
Magistrate
guilty
plea,
Judge
and
the
written plea agreement, including specifically the waiver of the
right to appeal, the defendant testified that he still wanted to
enter
a
plea
of
guilty
to
count
five
in
the
Superseding
Indictment. (D.E., p. 20). After the prosecutor read the factual
basis
in
the
plea
agreement,
Salazar-Tovar
said
he
had
no
corrections to what the prosecutor said. (D.E., p. 20).
The
Magistrate
and
Judge
accepted
the
defendant’s
guilty
plea
advised that he would report and recommend to Judge Kazen that
he find the defendant guilty and that the defendant be sentenced
accordingly. The defendant said that he had no questions. (D.E.,
p. 28).
3. The Sentence.
Prior
presentence
to
sentencing,
report
the
(“PSR”),
probation
which
office
calculated
the
prepared
a
Guideline
imprisonment range based on a total offense level of 23 and a
criminal history category of I to be 46 to 57 months, and the
statutory maximum term of imprisonment to be 10 years, pursuant
to 18 USC § 544. (PSR ¶¶ 75, 76).
At
sentencing,
the
undersigned
sitting
by
designation
sentenced Salazar-Tovar to 46 months in prison and dismissed the
remaining
four
counts
in
the
Superseding
government’s motion. (D.E. 94, p. 11).
Indictment
on
the
Salazar-Tovar’s counsel
stated that he and Salazar-Tovar were “tendering our Notice of
Non-Appeal at this time, even though he did waive it.” (D.E. 94,
p. 12).
III.
ISSUES
I. Primary Issue pertaining to the Plea Agreement Waiver.
Whether Salazar-Tovar is barred from bringing any of his
claims as a result of his waiver of the right to contest his
conviction or sentence by means of any post-judgment proceeding?
II. Supplemental Issue Raised by Salazar-Tovar.
Salazar-Tovar alleges that counsel was constitutionally
ineffective because he failed to “let the court know that
[Salazar-Tovar] was well over qualify [sic] to received a
downward departure to the fast-track early disposition program”
or argue that Salazar-Tovar’s sentence should reflect the
disparity that is created between fast-track and non-fast-track
districts.
IV.
Specific Enforce Of The Plea Agreement
The
government
seeks
specific
enforcement
agreement it reached with Salazar-Tovar.
of
the
plea
Salazar-Tovar’s motion
asserts an ineffective assistance of counsel claim.
A liberal
reading of Salazar-Tovar’s § 2255 motion discloses that SalazarTovar’s allegation regarding his sentence and dissatisfaction
with
counsel,
falls
within
the
scope
of
his
§
2255
waiver
because,
on
its
face
it
is
not
a
direct
challenge
to
the
voluntariness of his plea and, therefore, the waiver. See United
States v. White, 307 F.3d 336, 343–44 (5th Cir. 2002).
On the
other hand, an ineffective assistance claim survives a § 2255
waiver only when the claimed [ineffective] assistance directly
affected the validity of that waiver or the plea itself. Id.
In
this case, Salazar-Tovar’s claimed ineffective assistance ground
does not directly affect the validity of the waiver or the plea.
Thus, the government requests specific performance of the plea
agreement. Salazar-Tovar voluntarily waived his right to bring
this
instant
action
rearraignment.
in
his
Salazar-Tovar
plea
entered
agreement
into
a
and
plea
at
his
agreement
where, in exchange for the government’s promise to not oppose
the 2 acceptance of responsibility points and to move for the
third point consistent with the requirements of USSG §3E1.1(b),
he agreed to a broad and unequivocal waiver of collateral relief
as quoted above.
During
Salazar-Tovar’s
rearraignment
he
testified
under
oath that he understood the rights he was giving up by pleading
guilty, including the consequences of the waiver of appellate
rights and his right to “appeal” his conviction and sentence
under the provision of 28 U.S.C. § 2255.
Salazar-Tovar’s sworn statements in open Court are entitled
to
a
strong
presumption
of
truthfulness.
United
States
v.
Lampaziane, 251 F.3d 519, 524 (5th Cir. 2001)(citing Blackledge
v. Allison, 431 U.S. 63, 74 (1977)).
“great
weight
to
the
The Fifth Circuit gives
defendant’s
statements
at
the
plea
colloquy.” United States v. Cothran, 302 F.3d 279, 283-84 (5th
Cir.
2002).
Salazar-Tovar’s
sworn
statements
preclude
the
relief he seeks in this proceeding.
Salazar-Tovar knew the potential punishment he faced. He
also stated that his plea was knowing and voluntary.
Salazar-
Tovar testimony was abundantly clear that his decision to plead
guilty
was
voluntary
and
that
he
understood
the
potential
punishment.
Under the terms of the plea agreement, Salazar-Tovar shall
be held to the bargain to which he agreed. He knowingly and
voluntarily
waived
Accordingly,
his
right
Salazar-Tovar’s
to
§
file
2255
a
§
motion
2255
fails,
motion.
in
its
entirety, because he specifically waived the right to file such
a motion.
The record supports the conclusion that:
(1)
the
plea
the
waiver
agreement
and
waiver
were
knowing
and
agreement
is
voluntary;
(2)
enforceable
and
judgment; and,
provision
supports
the
in
the
government’s
plea
motion
for
summary
(3)
the
waiver
Salazar-Tovar
from
and
the
asserting
record
the
in
this
case
ineffective
preclude
assistance
of
counsel claim in his current motion.
V.
ALTERNATIVE MOTION TO DISMISS
Alternatively, the government urges dismissal of the § 2255
motion with prejudice as the record shows Salazar-Tovar is not
entitled to relief.
An ineffective assistance of counsel allegation in a § 2255
motion is analyzed under the two-prong analysis set forth in
Strickland v. Washington, 466 U.S. 668(1984). United States v.
Willis, 273 F.3d 592, 598 (5th Cir. 2001). To prevail on a claim
of ineffective assistance of counsel, a movant must demonstrate
that
his
counsel’s
prejudicial.
Id.
performance
This
means
that
was
a
both
movant
deficient
must
show
and
that
counsel’s performance was outside the broad range of what is
considered
reasonable
assistance
performance
led
unfair
to
an
and
and
that
this
unreliable
deficient
conviction
and
sentence. United States v. Dovalina, 262 F.3d 472, 474-75 (5th
Cir. 2001).
If the movant fails to prove one prong, it is not
necessary to analyze the other one. Armstead v. Scott, 37 F.3d
202,
210
(5th
Cir.
1994)
(“A
court
need
not
address
both
components of the inquiry if the defendant makes an insufficient
showing on one.”); see also Carter v. Johnson, 131 F.3d 452, 463
(5th Cir. 1997) (“Failure to prove either deficient performance
or
actual
prejudice
is
fatal
to
an
ineffective
assistance
claim.”).
A claim of ineffective assistance of counsel is properly
made
in
a
§
2255
constitutional
motion
magnitude
because
and,
as
a
it
raises
general
an
rule,
issue
of
cannot
be
resolved on direct appeal. United States v. Bass, 310 F.3d 321,
325 (5th Cir. 2002) (citing United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir. 1992)). As Strickland cautions, scrutiny of
counsel's performance must be highly deferential, lest it suffer
“the
distorting
Thecourt
must
effects
“indulge
of
a
hindsight.”
strong
466
U.S.
presumption
that
at
689.
counsel's
conduct falls within the wide range of reasonable professional
assistance” and that a challenged action “ ‘might be considered
sound trial strategy.’ ” Id.
“Fast
track”
programs
allow
certain
defendants
to
plead
guilty and to waive certain rights very early in the criminal
process, in exchange for a motion by the government for downward
departure pursuant to U.S.S.G. § 5K3.1.2 authorizes a reduction
for
fast-track
courts
along
accommodate
programs,
the
the
initially
southwestern
large
number
of
established
United
States
immigration
in
in
cases,
district
order
to
to
offer
defendants some form of sentence reduction in exchange for the
waiver
of
certain
procedural
rights.
See
United
States
v.
Rodriguez, 523 F.3d 519, 526-27 (5th Cir. 2008).
Salazar-Tovar
and
“immigration
benefits.
acknowledges
offenses”
as
that
being
“immigration
the
focus
defendants”
of
fast-track
However, he is not an “immigration defendant” who was
convicted of an ”immigration offense.”
Salazar-Tovar has not
shown that his counsel was deficient in arguing for fast-track
consideration in his case which involved attempting to smuggle
machine guns and grenades from the United States into Mexico.
United States v. Kimler,167 F.3d 889, 893 (5th Cir. 1999) (“An
attorney’s failure to raise a meritless argument ... cannot form
the
basis
of
a
successful
ineffective
assistance
of
counsel
claim because the result of the proceeding would not have been
different had the attorney raised the issue.”).
Likewise,
constitutionally
district
court
Salazar-Tovar’s
ineffective
should
claims
failing
by
exercise
that
to
its
counsel
argue
discretion
to
that
was
the
impose
a
sentence that would minimize the sentencing disparity created by
fast track programs in some sentencing jurisdictions but not
others, a district court is not required “to factor in, when
sentencing a defendant, the sentencing disparity caused by early
disposition
programs
to
prevent
a
sentence
from
being
unreasonable.” United States v. Aguirre-Villa, 460 F.3d 681, 683
(5th
Cir.2006).
It
is
hard
to
argue
sentencing
disparity
between districts with a fast track program and those without
one where the defendant, like Salazar-Tovar, was not eligible
for fast track consideration because he was not convicted of an
immigration
offense.
constitutionally
Again,
deficient
for
counsel’s
failing
performance
to
raise
a
was
not
meritless
claim. See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir.
1995).
VII.
CONCLUSION
Accordingly, the government’s motion for summary judgment
or, in the alternative, to dismiss shall be, and the same hereby
is, GRANTED.
The defendant’s motion to vacate sentence under 28 U.S.C. §
2255 shall be, and the same hereby is, DENIED with prejudice.
No certificate of appealability shall issue as reasonable
jurists would not differ on the outcome of this case.
This the 10th day of August, 2012.
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