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Vasquez v. United States

United States District Court, N.D. Texas, Dallas Division

April 5, 2017

AGNE VASQUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          REED O'CONNOR, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Procedural Background

         Petitioner 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).

         On 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.

         On March 2, 2016, Petitioner filed the instant § 2255 petition. He argues he received ineffective assistance of counsel when:

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.

         II. Factual Background

         The following factual background is taken from the record and PSR.

         In 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.)

         Petitioner 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.)

         Petitioner 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.)

         Investigators 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.)

         A jury 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 ...


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