Arguijo-Cervantes, Manuel Jesus v. USA

Filing 3

OPINION AND ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255 by Manuel Jesus Arguijo-Cervantes. Signed by District Judge William M. Conley on 12/4/2013. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MANUEL JESUS ARGUIJO-CERVANTES,
OPINION AND ORDER

Petitioner,

11-cr-4-wmc
l 2-cv-66 7 -wmc

v.

UNITED STATES OF AMERICA,
Respondent.

Manuel Jesus Arguijo-Cervantes has filed a motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C. § 2255. His primary claim is that he was denied a
downward departure under an early disposition or "fast-track program" approved by the
United States Attorney General, which offers certain defendants charged with illegal
re-entry into the United States an opportunity for a reduced sentence in exchange for a
prompt guilty plea. Arguijo-Cervantes' motion will be denied for reasons set forth below,
not the least of which is that he was not eligible for the fast-track program.

BACKGROUND
Arguijo-Cervantes is a native and citizen of Mexico. In 1989, Arguijo-Cervantes
was deported from the United States, following a drug trafficking conviction (possession
with intent to deliver or manufacture a controlled substance) in Sauk County, Wisconsin.
He returned in 1990, claiming to be a United States citizen.
In 1999, Arguijo-Cervantes was convicted of unlawful possession of a firearm as a
felon in Dane County Case No. 99CF2805 under the name Manuel Dejesus Arguijo.
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While on probation in that case, Arguijo-Cervantes admitted distributing approximately
three kilograms of cocaine between March 2, 2000, and March 22, 2001.
In 2003, Arguijo-Cervantes was charged with another drug-trafficking offense
(possession with intent to distribute cocaine) in Dane County Case No. 03CF1790. He
pied guilty and was sentenced to two years' imprisonment in that case. In May of 2006,
Arguijo-Cervantes was deported to Mexico. Despite receiving formal notice that he was
prohibited from re-entering the United States at any time because his conviction in Case
No. 03CF1790 qualified as an aggravated felony for purposes of the immigration statutes,
Arguijo-Cervantes illegally returned to the United States the within following year.
In July of 2007, Arguijo-Cervantes was apprehended by police in Illinois and
returned to Wisconsin on a probation warrant. At that time, officers recovered cocaine
and a rifle from his home. In September 2007, a federal grand jury in the United States
District Court for the Eastern District of Wisconsin charged Arguijo-Cervantes with illegal
reentry after deportation for an aggravated felony (namely, possession with intent to
distribute cocaine in Dane County Case No. 03CF1790). Arguijo-Cervantes pied guilty
pursuant to a written agreement and the district court imposed a sentence of 42 months'
imprisonment. See United States v. Arguijo-Ce11lantes, Case No. 07-cr-247.
At his sentencing in Case No. 07-cr-24 7, Arguijo-Cervantes assured the district
court that he would not return to the United States.

On October 2, 2010, he was

deported to Mexico following his release from federal prison. Less than a month later,
Arguijo-Cervantes illegally returned to the United States.

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On January 19, 2011, a grand jury in this district returned a one-count indictment
against Arguijo-Cervantes, charging him with illegal re-entry into the United States
following deportation in violation of 8 U.S.C. § 1326.

On March 30, 2011, he entered

an unconditional guilty plea to those charges. Despite his lengthy criminal record and
repeated illegal re-entry into the United States, this court sentenced him at the bottom of
the advisory guideline range, imposing 57 months' imprisonment.
On direct appeal from his conviction, appointed counsel submitted a motion to
withdraw under Anders v. California, 386 U.S. 738, 744 ( 1967), along with a brief.
. Having considered and rejected several other, potential issues raised by appellate counsel,
the Seventh Circuit found the 57-month sentence imposed in Arguijo-Cervantes' case was
proper:
Counsel finally considers whether Arguijo-Cervantes might argue that
his 5 7-month sentence is unreasonable but aptly rejects any such argument
as frivolous. Arguijo-Cervantes's sentence is at the bottom of his guidelines
range and thus presumptively reasonable, see Rita v. United States, 551 U.S.
338, 350-51 (2007); United States v. Barnes, 660 F.3d 1000, 1010 (7th Cir.
2011), and counsel identifies no reason to disturb that presumption. The
district court properly applied the factors listed in 18 U.S.C. § 3553(a),
discussing Arguijo-Cervantes's long history of drug sales and illegal reentry,
as well as his family ties to the United States, see 18 U.S.C. § 3553(a)(l),
and noting the importance of deterrence, especially given his recent promise
to a federal judge that he would not return to the United States after his
deportation in 2010, only to return again a few weeks later, see id.
§ 3553(a)(2)(B); United States v. Perez-Molina, 627 F.3d 1049, 1051 (7th
Cir. 2010). The court appropriately found that these considerations
outweighed Arguijo-Cervantes's request for a below-range sentence to
account for family ties being the principal motivation for his return.
United States v. Arguijo-Cervantes, 461 F. App'x 513, 2012 WL 475928 (7th Cir. 2012).

Finding no error, the Seventh Circuit granted counsel's motion to withdraw and dismissed
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the appeal as frivolous.

Arguijo-Cervantes did not pursue certiorari review before the

United States Supreme Court.
Arguijo-Cervantes now seeks relief from his sentence pursuant to 28 U.S.C.
§ 2255, arguing primarily that he was denied a downward departure under a "fast-track

program" for illegal re-entry defendants. In addition, Arguijo-Cervantes argues that he is
entitled to relief under Padilla v. Kentuclry, 130 S. Ct. 1473 (2010), because defense
counsel in his 2003 conviction in Dane County Case No. 03CF 1790 did not advise him of
the potential immigration consequences of pleading guilty to an aggravated felony.

OPINION
A motion for relief under 28 U.S.C. § 2255 invokes "an extraordinary remedy
because it asks the district court essentially to reopen the criminal process to a person
who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d
518, 520 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir.
2006)). As such, a motion under § 2255 cannot be used to relitigate matters that were
raised on direct appeal.

Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007).

Likewise, claims omitted on direct appeal may be considered on collateral review only if
the petitioner can show good cause for failing to raise the issue previously and actual
prejudice based on the alleged error. See, e.g., Fuller v. United States, 398 F.3d 644, 648
(7th Cir. 2005). Relief under§ 2255 is appropriate only where a defendant establishes
"an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect

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which inherently results in a complete miscarriage of justice." Hanis v. United States, 366
F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir.
1991)). Petitioner Arguijo-Cervantes falls far short of this high bar.

I. Claims Concerning the Fast-Track Program

In three related claims for relief, petitioner contends that he was entitled to a
reduction in sentence under an early disposition or fast-track program of the sort
developed initially to handle increasingly large numbers of illegal re-entry cases along the
southwestern border of the United States. 1 Specifically, Arguijo-Cervantes argues that
his defense attorney was deficient for failing to request a reduction in sentence pursuant
to a fast-track program. He also contends that the prosecutor erred by not offering a
reduction in sentence under a fast-track program and that this court abused its discretion
by failing to consider, sua sponte, petitioner's eligibility for this type of relief.
Arguijo-Cervantes cannot prevail on any of these claims for a variety of reasons.
First, at the time Arguijo-Cervantes was sentenced, the Western District of
Wisconsin had rio formal fast-track program in place.

Even so, district courts in the

Seventh Circuit were encouraged by that time to consider the disparity created by

1

In 2003, then-Attorney General John Ashcroft issued a formal memorandum setting forth
criteria to be used by United States Attorneys' Offices seeking to establish this type of
program. More recently, Attorney General Eric Holder expanded this policy to include every
district, requiring fast-track programs for all illegal re-entry prosecutions no later than March
1, 2012. See Memorandum from Deputy Attorney Gen. fames M. Cole to All U.S. Attorneys, Dep't
Policy on Ear[y Disposition or "Fast-Track" Programs (Jan. 31, 2012), available at
www.justice.gov/daglfast-track-program.pdf (last visited August 10, 2013); see also United States
v. Anaya-Agui11e, 704 F.3d 514, 516 n. 1 (7th Cir. 2013). Arguijo-Cervantes includes a
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fast-track programs in other areas of the country when sentencing illegal re-entry
defendants.

See United States v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010).

Arguijo-Cervantes' problem is that, contract to his contention, this court considered his
eligibility for a reduction pursuant to the direction in Reyes-Hernandez, but concluded that
a downward departure was not warranted. (See Dkt. # 24, Sentencing Trans. at 19).
Second, Arguijo-Cervantes does not show that he was eligible for "fast tracking"
even under the minimum criteria established for such a program. See, e.g., United States v.

Ramirez, 675 F.3d 634, 641 (7th Cir. 2011) (To benefit from a fast-track program "a
defendant must, as a starting point, promptly plead guilty, agree to a factual basis for the
offense, and waive his rights to file pretrial motions, to appeal, and to seek postconviction
relief under § 2255").

On the contrary, the unconditional plea entered by

Arguijo-Cervantes, while prompt, was devoid of the requisite waivers. Moreover, because
of his record of repeated illegal re-entries into the United States following formal removal
proceedings and his prior conviction for illegal re-entry following removal for an
aggravated felony, see United States v. Arguijo-Cervantes, Case No. 07-cr-247 (E.D. Wis.), it
is highly unlikely that the government would have offered, much less that the court would
have agreed to, the benefit of a fast-track program (had it even existed in this district at
the time sentence was imposed). Accordingly, Arguijo-Cervantes' request for relief based
on his being "denied" the benefit of a fast-track program at the time of sentencing is
without merit.

portion of this memorandum along with his § 2255 motion.

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II. Claim for Relief Under Padilla v. Kentucky
Arguijo-Cervantes also claims entitlement to relief from his conviction because he
was denied effective assistance of counsel in connection with the aggravated felony
offense that enhanced his punishment for illegal reentry following deportation.

In

particular, Arguijo-Cervantes contends that his illegal-reentry conviction must be set aside
pursuant to the holding in Padilla v. Kentucky, 559 U.S. 356 (2010), because his defense'
counsel in Dane County Case No. 03CF 1790 did not advise him of the potential
immigration consequences of pleading guilty to an aggravated felony of possession with
intent to distribute cocaine.
In Padilla, the United States Supreme Court held that a criminal defense attorney's
failure to advise a non-citizen defendant about the risk of deportation arising from a
guilty plea may constitute ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668 ( 1984). See Padilla, 559 U.S. at 387-88. Padilla was decided on March
31, 20 I 0, and Arguijo-Cervantes was convicted and sentenced nearly a full year later in
March of 2011, meaning his counsel could have and should have raised this issue before
judgment was entered. Unfortunately for Arguijo-Cervantes, collateral review is barred as
the result of his procedural default unless he can show good cause for failing to raise the
issue and actual prejudice. See Bousley v. United States, 5 23 U.S. 614, 622 ( 1998). This
Arguijo-Cervantes cannot do.
Having already been deported previously for a drug-trafficking conviction in 1989,
it is highly doubtful that Arguijo-Cervantes was unclear about the likely collateral

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consequences of pleading guilty to yet another felony offense in 2003. The fact that he
returned to the United States illegally by using an assumed identity, as evidenced by his
conviction in Dane County Case No. 99CF2805 under the name Manuel Dejesus Arguijo,
indicates that Arguijo-Cervantes was well aware that he faced a risk of deportation with or
without another felony conviction.
Because Arguijo-Cervantes' allegations of ineffective-assistance are implausible, the
court concludes that his claim for relief based on Padilla is barred from review by the
doctrine of procedural default. Even if not barred by reason of this procedural defect, his
allegations of ineffective-assistance are unpersuasive and do not present a valid claim.
Absent a valid claim for relief, Arguijo-Cervantes' motion pursuant to 28 U.S.C. § · 2255 is
denied.

III.

Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2255 Proceedings for the United

States District Courts, the court must issue or deny a certificate of appealability when
entering a final order adverse to the applicant. A certificate of appealability will not issue
unless the applicant makes "a substantial showing of the denial of a constitutional right,"
28 U.S.C. § 2253(c)(2), which requires an applicant to demonstrate "that reasonable
jurists would find the district court's assessment of the constitutional claims debatable or
wrong."

Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)).

Under the controlling standard, this requires an applicant to

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show "that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
'adequate to deserve encouragement to proceed further."' Miller-El, 537 U.S. at 336.
Where denial of relief is based on procedural grounds, the applicant must show not only
that "jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right," but also that they "would find it debatable whether
the district court was correct in its procedural ruling." Slack, 529 U.S. at 484.
Although Rule 11 allows the court to direct the parties to submit arguments on the
possible issuance of a certificate of appealability, it is unnecessary to do so in this
instance.

For the reasons stated above, the court concludes that no reasonable jurist

would debate whether a different result was required. For this reason, no certificate of
appealability will issue.
ORDER
IT IS ORDERED that:
1. Manuel Jesus Arguijo-Cervantes' motion to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255 is DENIED.
2. A certificate of appealability is DENIED.
Entered this 4th day of December, 2013.
BY THE COURT:

Isl
WILLIAM M. CONLEY
District Judge
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