United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
O'CONNOR, UNITED STATES DISTRICT JUDGE
the Court is Petitioner's petition to vacate, set-aside,
or correct sentence pursuant 28 U.S.C. § 2255. For the
foregoing reasons, the petition is DENIED.
was charged with conspiracy to possess with intent to
distribute 500 or more grams of methamphetamine (Count One),
possession of a firearm in furtherance of drug trafficking
(Count Two), possession with intent to distribute
methamphetamine and aiding and abetting (Count Three), and
possession of a firearm by a prohibited person (Count Four).
A jury found Petitioner guilty of the drug trafficking
charges (Counts One and Three) but not guilty of possessing a
firearm in furtherance of drug trafficking (Count Two).
Petitioner pled guilty to being a prohibited person (illegal
alien) in possession of a firearm (Count Four). On December
19, 2013, the Court sentenced Petitioner to 292 months'
imprisonment on Counts One and Three, and 120 months on Count
Four, to run concurrently. Petitioner appealed his conviction
and sentence to the Fifth Circuit Court of Appeals. On
December 23, 2014, the Fifth Circuit affirmed his conviction
and sentence. United States v. Vasquez, 596
F.App'x 260 (5th Cir. 2014).
February 5, 2016, Petitioner filed a motion to reduce his
sentence based on Amendment 782 of the Sentencing Guidelines.
(CR Dkt. ECF No. 619.) On May 31, 2016, the Court granted
Petitioner's motion and reduced Petitioner's base
offense level by two levels. Petitioner's total offense
level was therefore reduced from 40 to 38. (CR Dkt. ECF No.
632.) With a total offense level of 38 and a Criminal History
Category of I, Petitioner's original guideline range of
292 to 365 months was reduced to 235 to 293 months. The Court
sentenced Petitioner to 235 months.
March 2, 2016, Petitioner filed the instant § 2255
petition. He argues he received ineffective assistance of
1. Appellate counsel failed to challenge the drug quantity
attributed to him at sentencing;
2. Trial counsel failed to object to the drug quantity
attributed to him at sentencing; and
3. Trial counsel failed to move to dismiss Count One of the
indictment which contained a material variance between the
indictment and the evidence produced at trial.
following factual background is taken from the record and
March 2011, the Dallas Police Department and the FBI
initiated an investigation targeting a large-scale
drug-trafficking organization (DTO) led by Petitioner's
cousin, Tony Hernandez, which imported methamphetamine from
Mexico and distributed the drugs across the Dallas-Fort Worth
area. (PSR ¶ 12.)
lived with his cousin and coconspirator Miguel Quintero. (CR
Dkt. ECF No. 500 at 202.) Quintero sold methamphetamine and
engaged in several controlled-purchase transactions with the
undercover officer, Task Force Officer Boston, at or around
his and Petitioner's residence. (CR Dkt. ECF No. 500 at
104-05, 114, 121, 124-25, 171-72.) Petitioner provided
counter-surveillance and security during some of those
transactions. (CR Dkt. ECF No. 500 at 171-72.) Petitioner
also personally sold methamphetamine to user and
coconspirator Reynaldo Alvarado (“Flaco”). (CR
Dkt. ECF No. 501 at 51-52.)
lived across the street from the DTO leader Hernandez, and
next door to his brother, Roberto Vasquez
(“Beto”), whose residence served as a stash house
for the DTO, storing large quantities of methamphetamine. (CR
Dkt. ECF No. 500 at 97-98.) Petitioner maintained the
security cameras installed at the stash house and at
Hernandez's house. (CR Dkt. ECF No. 501 at 86-87.)
found nine firearms at Petitioner's house. (PSR ¶
25.) Investigators also found two bullet-proof vests and more
than 20 boxes of ammunition. (PSR ¶ 25.) On November 5,
2012, agents arrested Petitioner and executed a search
warrant at his residence, pursuant to which they seized the
weapons. (PSR ¶ 25.)
convicted Petitioner of conspiracy to possess with the intent
to distribute 500 grams or more of methamphetamine (Count
One), and distribution and possession with the intent to
distribute methamphetamine and aiding and abetting (Count
Three). Pursuant to a plea agreement, Petitioner pled guilty
to possession of a firearm by a prohibited person (Count
Four). On December 19, 2013, the Court sentenced ...