Rodriguez v. United States of America Do not docket in 6:13-cv-22. Documents should be filed in 6:10-cr-118-03.
Filing
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MEMORANDUM OPINION AND ORDER. Rodriguez' 1 Motion to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 6:10-cr-118 (Defendant No. 03) is Denied. She is also Denied a Certificate of Appealability. (Signed by Judge John D. Rainey.) Parties notified. (yhausmann, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
BEATRICE RODRIGUEZ,
Defendant.
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CIVIL ACTION NO. 6:13-22
CRIMINAL NO. 6:10-118-3
MEMORANDUM OPINION & ORDER
Pending before the Court is Defendant Beatrice Rodriguez’ (“Rodriguez”) Motion under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt.
No. 327), to which the United States of America (“the Government”) has responded (Dkt. No.
342).
I. BACKGROUND
On December 16, 2010, a four-count superseding indictment was filed, alleging that
Rodriguez and eight other individuals conspired to transport unlawful aliens within the United
States by means of a motor vehicle, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I),
and (a)(1)(B)(I) (Count One); conspired to engage in money laundering in violation of 18 U.S.C.
§ 1957 (Count Two); structured transactions to evade reporting requirements, in violation of 31
U.S.C. § 5324(a)(3)(d) and 18 U.S.C. §2 (Count Three); and structured transactions in violation
of 31 U.S.C. §§ 5324(a)(3),(d) and 18 U.S.C. § 2 (Count Four). (Dkt. No. 56.)
On June 24, 2011, Rodriguez pled guilty to Count One pursuant to a written plea
agreement with the Government, whereby she waived her right to appeal or collaterally attack
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her conviction or sentence by any post conviction proceeding, including under 28 U.S. C. §
2255. (Dkt. No. 176.) She was re-arraigned the same day. Minute Entry, June 24, 2011.
At rearraignment, the Court confirmed that Rodriguez had been given a copy of the
indictment and that counsel explained it. (Rearraignment Tr., Dkt. No. 341 at 6:10–18.)
Rodriguez testified that she understood the charges against her and that she was satisfied with
counsel’s services up to that point. (Id. at 6:19–24.) Rodriguez further testified that she read the
terms of the plea agreement, discussed it with counsel, and understood it. (Id. at 8:1–8.)
The Court then reviewed Rodriguez’ waiver of appeal and the waiver of her right to file a
motion pursuant to 28 U.S.C. § 2255, and Rodriguez acknowledged that she was aware of the
waivers, had discussed them with her attorney, and did not have any questions about the waivers:
THE COURT: I note here on page 3, in paragraph 7 in your agreement, there
is a provision for waiver of certain rights to appeal. Were you aware that that
waiver was in your agreement before you signed it?
DEFENDANT RODRIGUEZ: Yes.
THE COURT: Did you discuss the waiver with your lawyer?
DEFENDANT RODRIGUEZ: Yes.
THE COURT: Are you aware that you not only waived your right to directly
appeal your conviction and sentence, but also to collaterally attack it under 28
United States Code, Section 2255?
DEFENDANT RODRIGUEZ: Yes.
THE COURT: Do you feel like you understand the waiver and its effect on
your rights in this case?
DEFENDANT RODRIGUEZ: Yes.
(Dkt. No. 341 at 8:9–24.)
The Court then advised Rodriguez of the maximum punishment for her offense, and
Rodriguez testified that she understood:
THE COURT: You are subjecting yourself to a penalty range of incarceration
by entering this plea. For this offense, conspiring to transport illegal aliens, it
carries up to 10 years in prison. That’s the statutory range. There is a
provision for a fine up to $250,000, up to three years of supervised release,
and a $100 special assessment. Do you understand that that is the penalty
range for your offense?
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DEFENDANT RODRIGUEZ: Yes.
THE COURT: You’re hesitating. Is that—were you surprised by what I just
said?
DEFENDANT RODRIGUEZ: No, sir.
THE COURT: Okay, all right. Doesn’t necessarily mean you’re going to get
10 years, but that’s the maximum provided by law.
DEFENDANT RODRIGUEZ: Yes.
(Id. at 9:3–19.)
The Government recited the facts underlying the offense, specifically that on at least on
10 occasions, payments for aliens being unlawfully transported into the United States were wired
to Rodriguez, and Rodriguez picked up the money at various Western Unions in Corpus Christi
and then turned the money over to a co-conspirator. (Id. at 16:20–17:14.) Rodriguez admitted the
facts were correct and pled guilty. (Id. at 18:6–10.) The Court found that Rodriguez was
competent to enter the plea and was aware of the charges against her and of the consequences of
entering a plea to those charges. (Id. at 18:14–17.) The Court further found that Rodriguez’ plea
of guilty was a knowing and voluntary plea supported by an independent basis in fact and
containing all the essential elements of the offense, and adjudicated Rodriguez guilty of Count
One. (Id. at 18:18–22.)
At the Court’s direction, the Probation Office prepared a Presentence Investigation
Report (PSI), which recommended a base offense level of 12, increased by 9 levels because the
offense involved smuggling, transporting, or harboring of 100 or more aliens, and increased by
an additional 2 levels because the offense involved intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another person, for a base offense level of 23.
(Dkt. No. 205 ¶ 53.) After a reduction of 3 levels for acceptance of responsibility, the total
offense level was 20. (Id. ¶¶ 59–62.) Rodriguez had no criminal history points, establishing a
criminal history category of I and a guideline range of 33 to 41 months. (Id. ¶ 80.) Rodriguez
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lodged a number of objections to the PSI, all of which were overruled. On March 12, 2012, the
Court sentenced Rodriguez to 33 months in prison, the lowest end of the guideline range.
(Sentencing Tr., Dkt. No. 337 at 24:6.) At that time, Rodriguez again confirmed that she had
waived “certain rights to appeal.” (Id. at 25:18–22.)
Rodriguez filed a Notice of Appeal on June 14, 2012 (Dkt. No. 312), and on October 3,
2012, the Court of Appeals for the Fifth Circuit dismissed the appeal as untimely (Dkt. No. 325).
Rodriguez timely filed the presently-pending § 2255 motion on March 15, 2013.
II. MOVANT’S ALLEGATIONS
Rodriguez raises three claims in her § 2255 motion:
1. In November 2010, one of Rodriguez’ co-conspirators made a statement to Rodriguez’
attorney asking “why was I incarcerated with her when I had nothing to do with her.” Rodriguez
told her attorney to call the co-conspirator’s attorney and get the statement in writing, but he
never did;
2. Rodriguez was told by her attorney that counsel for the Government stated that if
Rodriguez pled guilty to conspiracy, she would receive only probation. Rodriguez told her
attorney that she wanted him to put this statement in writing, but he never did; and
3. Rodriguez never made or signed any statement at the time of her arrest.
III. LEGAL STANDARD
There are four cognizable grounds upon which a federal prisoner may move to vacate,
set 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
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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)
(per curiam).
IV. ANALYSIS
Rodriguez appears to suggest that her claim that her attorney somehow induced her to
plead guilty by assuring her that she would receive only probation prevents enforcement of the
waivers in her plea agreement; however, her claims of ineffective assistance do not automatically
relieve her of her waivers. See United States v. White, 307 F.3d 336, 343–44 (5th Cir. 2002) (an
ineffective assistance claim survives a waiver “only when the claimed assistance directly
affected the validity of that waiver or the plea itself”). In White, the Court decided there was “no
need to except ineffective assistance of counsel claims from the general rule allowing defendants
to waive their statutory rights so that they can reach a plea agreement if they wish. The Sixth
Amendment right to effective assistance of counsel may also be waived, and thus need not be
treated any differently.” Id. at 343 (internal citations omitted).
Rodriguez testified that she understood that she could receive up to a 10-year sentence,
that she had discussed the appellate waivers with counsel, and that she understood both her
waivers and her potential sentence and had no questions about either for the Court. See Part I,
supra. A defendant’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)). Indeed, the Fifth Circuit affords “great weight to the
defendant’s statements at the plea colloquy.” United States v. Cothran, 302 F.3d 279, 283–84
(5th Cir. 2002). Rodriguez’ sworn statements preclude the relief she seeks here. She was not
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coerced, and she understood the charges against her, the trial rights she was giving up, the
possible maximum sentence she faced, and the waiver of her appellate and post-conviction
rights. Because her waiver was knowing and voluntary, Rodriguez gave up the rights she now
seeks to assert. The Court does not reach the merits of Rodriguez’ claims because they fall
within the scope of her waiver. See United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994)
(enforcing defendant’s voluntary and knowing waiver of § 2255 rights).
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 Rodriguez has not yet filed a notice of appeal, the § 2255 Rules
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
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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 Rodriguez is not entitled to a
COA on any of her claims. That is, reasonable jurists could not debate the Court’s resolution of
her claims, nor do these issues deserve encouragement to proceed. See Jones, 287 F.3d at 329.
VI. CONCLUSION
For the foregoing reasons, Rodriguez’ Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (Dkt. No. 327) is DENIED. She is
also DENIED a Certificate of Appealability.
It is so ORDERED.
SIGNED this 26th day of June, 2013.
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JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE
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