Alarcon v. USA
Filing
11
MEMORANDUM OPINION AND ORDER as to Jesus Adrian Alarcon (Signed by Visiting Judge Joseph M. Hood) Parties notified. (dmorales, 5)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
UNITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
JESUS ADRIAN ALARCON,
Defendant.
Criminal Action No.
L-10-CR-1662
(13-CV-73)
MEMORANDUM OPINION & ORDER
Jesus Adrian Alarcon (Alarcon) has filed a motion under 28
U.S.C. § 2255 to vacate, set aside, or correct sentence.
The
Government has filed a response to Alarcon’ § 2255 motion as
well as a motion to dismiss the same.
Alarcon, in turn, has
filed a reply to the Government’s motion.
I. Procedural History
On July 19, 2010, an indictment charged Alarcon with drug
conspiracy
(21
U.S.C.
§§
846,
841(a)(1),
and
841(b)(1)(A)),
money laundering conspiracy (18 U.S.C. §§ 1956 and 1957) and two
counts of money laundering (18 U.S.C. § 1956(a)(1)(B)(i) and 18
U.S.C. § 2) (D.E. 114).1 On March 2, 2011, he pleaded guilty to
Count 3, money laundering conspiracy in violation of 18 U.S.C.
§§ 1956(h), 1956(a)(1)(B)(i), 1956(a)(2)(A), and 1957, pursuant
1
“D.E.” refers to documents filed in the criminal case. The
rearraignment transcript is filed as D.E. 1378; the sentencing
transcript is filed as D.E. 1375. The Presentence Investigation
Report (“PSR”) is cited by paragraph number, and is filed as
D.E. 925 (Addenda are filed as D.E. 868 and 1088).
1
to a plea agreement, in which he waived his right to appeal and
his right to file a § 2255 motion (D.E. 617, at 5-6; D.E. 1378,
at 6-7, 9, 15).
in which he waived his right to appeal and his
right to file a § 2255 motion (D.E. 617, at 5-6; D.E. 1378, at
6-7, 9, 15).
On May 21, 2012, the court sentenced Alarcon to 108 months
in
prison,
(D.E.
followed
1136,
at
by
1-3).2
a
three-year
The
court
supervised
ordered
a
release
$100
term
special
assessment and did not impose a fine (D.E. 1136, at 5). The
remaining 3 counts in which Alarcon was originally charged were
dismissed upon motion of the United States (D.E. 1136, at 1).
The judgment was entered on June 1, 2012 (D.E. 1136). At that
time, the deadline for filing a notice of appeal was 14 days
from entry of the judgment, excluding intermediate weekends and
holidays. See Fed. R. App. P. 4(b)(1)(A)(i), 26(a)(2) (2009). In
other words, Alarcon’s deadline for filing a notice of appeal
was June 21, 2012.
Consistent with his appellate waiver, Alarcon did not file
a
notice
of
appeal.
His
conviction
became
final
when
the
deadline for filing notice of appeal lapsed on June 21, 2012.
See United States v. Plascencia, 537 F.3d 385, 388 (5th Cir.
2008).
Alarcon had one year from the date his conviction became
final to file his § 2255 motion, i.e., by June 21, 2013. See 28
U.S.C. § 2255(f)(1). Alarcon’s pro se § 2255 motion is dated
2
April 23, 2013 (D.E. 1362). Although Alarcon filed his § 2255
motion
within
the
requisite
time
frame,
this
court
shall
summarily grant the government’s motion and dismiss the § 2255
motion based on Alarcon’s waiver.
II.
Section 2255 Waiver
Alarcon knowingly and voluntarily waived his right to a
direct appeal and to file a § 2255 motion. See United States v.
Wilkes,
20
F.3d
651,
653-54
(5th
Cir.
1994)
(holding
that
waivers of the right to file a post-conviction motion under §
2255, like appellate waivers, are valid). Alarcon’s written plea
agreement explicitly stated as follows:
10. Defendant is aware that Title 18, U.S.C. § 3742
affords a defendant the right to appeal a conviction
and appeal the sentence imposed. The defendant agrees
to waive the right to appeal the conviction, the
sentence imposed or the manner in which the sentence
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. The defendant waives the right to contest his
conviction or sentence by means of any post-conviction
proceeding.
(D.E.
617,
at
5-6).
As
part
of
the
plea
agreement,
Alarcon
signed a “Plea Agreement - Addendum,” which read as follows:
I have consulted with my attorney and fully understand
all my rights with respect to the 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
3
this plea agreement with my attorney. I understand
this agreement and I voluntarily agree to its terms.
(D.E. 618, at 17-18).
Alarcon asserts that his guilty plea was unintelligent and
involuntary (D.E. 1363, at 10) because his attorney coerced him
to plead, and because of unfulfilled plea agreement promises
(D.E.
1363,
at
8).
The
record
thoroughly
contradicts
his
assertions.
At the rearraignment, an interpreter translated what was
said
into
placed
Spanish
Alarcon
for
under
Alarcon
oath
(D.E.
and
1378,
informed
at
him
4).
The
court
that
any
false
statements could be used against him in a perjury prosecution
(D.E. 1378, at 3-4). See Fed. R. Crim. P. 11(b)(1)(A). The court
addressed Alarcon personally and determined that he did not have
a history of mental illness or treatment, was not on medication,
and was competent (D.E. 1378, at 10). The court informed Alarcon
of the nature of the charge (D.E 1378, at 5-6). See Fed. R.
Crim. P. 11(b)(1)(G).
The court summarized the plea agreement’s terms – that in
exchange for his guilty plea to Count 3, the United States would
dismiss the remaining counts, agree not to oppose his request
for a two-level reduction for acceptance of responsibility, not
oppose
one
additional
level
reduction
if
the
offense
level
exceeded 16 and he accepted responsibility (D.E. 1378, at 7-8).
4
The
court
advised
Alarcon
that
he
was
waiving
the
right
to
appeal and waiving the right to file a § 2255 motion; Alarcon
stated that he understood (D.E. 1378, at 6-9, 15). See Fed. R.
Crim. P. 11 (b)(1)(N) (court must determine that the defendant
understands any plea agreement provisions waiving the right to
appeal or to collaterally attack the sentence). Alarcon stated
that he was not promised anything other than what was contained
in
the
plea
agreement
and
that
he
was
pleading
guilty
voluntarily because he was in fact guilty and not because of any
threats or force (D.E. 1378, at 8-11). See Fed. R. Crim. P.
11(b)(2)
(court
must
determine
that
the
guilty
plea
is
voluntary). The court confirmed with Alarcon that his signature
on the plea agreement and addendum were genuine and voluntary
(D.E. 1378, at 6), and that he had plenty of time to discuss the
matter with his attorney, have all his questions answered, and
was satisfied with his legal representation (D.E. 1378, at 4-6).
In addition, the court emphasized that the sentence had not been
determined by the district court judge, and that if Alarcon were
dissatisfied with the PSR calculation or the sentence itself, he
could
not
withdraw
his
plea;
Alarcon
acknowledge
his
understanding and agreement (D.E. 1378, at 8-9, 13-15).
This court should give “great weight to the defendant’s
statements at the plea colloquy.” United States v. Cothran, 302
F.3d
279,
283-84
(5th
Cir.
2002).
5
Indeed,
Alarcon’s
solemn
declarations at the rearraignment regarding the voluntariness of
his
§
2255
waiver
carry
a
“strong
presumption
of
verity.”
Wilkes, 20 F.3d at 653 (quoting Blackledge v. Allison, 431 U.S.
63, 73-74 (1977)). Because the record clearly indicates that
Alarcon understood his plea agreement, and because he raised no
objection regarding the waiver provisions, he should “be held to
the bargain to which he agreed.” United States v. Portillo, 18
F.3d 290, 293 (5th Cir. 1994). Alarcon knowingly waived his
right
to
file
a
§
2255
motion.
This
court
shall
summarily
dismiss with prejudice Alarcon’s § 2255 motion.
III. No Ineffective Assistance of Counsel
A § 2255 waiver does not preclude a claim of ineffective
assistance of counsel, if the challenged assistance of counsel
“directly
affected
the
validity
of
that
waiver
or
the
plea
itself.” United States v. White, 307 F.3d 336, 343 (5th Cir.
2002).
This is certainly true in this case where Alarcon’s
claims are refuted by the record.
Alarcon contends counsel rendered ineffective assistance by
(1) advising him to plead guilty to money laundering conspiracy
when he was merely a driver and knew nothing of the larger
conspiracy; (2) not requesting a safety valve reduction; and (3)
not requesting a mitigating role reduction (D.E. 1363). These
issues
are
inherently
contradictory
in
that
Alarcon
simultaneously asserts his actual innocence while insisting on
6
sentencing credits that require him to accept responsibility.
Moreover,
Alarcon’s
claims
attempt
to
raise
substantive
challenges to his conviction and sentence by disguising them as
ineffective assistance of counsel claims. Even in analyzing his
claims under that guise, Alarcon is unable to show deficient
performance or actual prejudice. See Strickland v. Washington,
466 U.S. 668, 687-88 (1984).
Each of Alarcon’s claims will be
discussed in turn.
A § 2255 waiver does not preclude a claim of ineffective
assistance of counsel, if the challenged assistance of counsel
“directly
affected
the
validity
of
that
waiver
or
the
plea
itself.” United States v. White, 307 F.3d 336, 343 (5th Cir.
2002).
Alarcon contends counsel rendered ineffective assistance by
(1) advising him to plead guilty to money laundering conspiracy
when he was merely a driver and knew nothing of the larger
conspiracy; (2) not requesting a safety valve reduction; and (3)
not requesting a mitigating role reduction (D.E. 1363). These
issues
are
inherently
contradictory
in
that
Alarcon
simultaneously asserts his actual innocence while insisting on
sentencing credits that require him to accept responsibility.
Moreover,
Alarcon’s
claims
attempt
to
raise
substantive
challenges to his conviction and sentence by disguising them as
ineffective assistance of counsel claims. Even in analyzing his
7
claims under that guise, Alarcon is unable to show deficient
performance or actual prejudice. See Strickland v. Washington,
466 U.S. 668, 687-88 (1984).
1. Involuntary plea and actual innocence. This claim is
belied by the record. Alarcon’s signed plea agreement contains a
recitation of the evidence against him (D.E. 617, at 9-13). At
the rearraignment hearing, the same set of facts were read and
Alarcon agreed that they were true (D.E. 1378, at 18-22). The
evidence shows that Alarcon paid truck drivers to transport drug
proceeds, recruited drivers, conducted counter-surveillance for
transactions, and was present in a tractor-trailer from which
$779,905 was seized (D.E. 617, 1378, and PSR ¶ 281). The court
found the plea to be knowing and voluntary and that a sufficient
factual basis existed to support the plea (D.E. 1378, at 27-28).
2. Safety valve. This claim is meritless because Alarcon
did not qualify for safety valve consideration under 18 U.S.C.
3553(f) for two reasons: first, he did not debrief (D.E. 1375,
at 4), and second, he was not charged with a crime carrying a
mandatory minimum sentence (PSR ¶ 349, D.E. 617, at 2).
3. Mitigating Role. This claim is likewise meritless. The
mitigating role adjustment under U.S.S.G. § 3B1.2, which Alarcon
seeks, is the opposite of the aggravating role adjustment under
U.S.S.G. § 3B1.1(c) which was used to calculate his guidelines
(PSR
¶¶
283,
321).
The
issue
was
8
debated
at
length
during
sentencing
(D.E.
1375,
at
2-8),
and
the
court
found
the
component to be properly scored (D.E. 1375, at 8). Expecting
counsel to make an argument for mitigating role following that
exchange would be illogical.
Nonetheless, it should be noted
that counsel moved for downward departure based on Alarcon’s
clean history and “exemplary life” (D.E. 1375, at 9-12). The
court
rejected
the
motion
based
on
Alarcon’s
involvement
in
“three separate transportings of large amounts of cash.” (D.E.
1375, at 12).
IV. Conclusion
As the existing record demonstrates that Alarcon' § 2255
motion lack merit, the same shall be dismissed with prejudice.
A separate judgment shall this date be entered.
IT IS SO ORDERED this the 27th day of September, 2013.
Sitting by Designation
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