United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE.
Victor Manuel Estrada (Estrada) filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
D.E. 51. Pending before the Court is the Government's
motion to dismiss (D.E. 56), to which Estrada did not reply.
FACTS AND PROCEEDINGS
was indicted in October 2014 for conspiracy to possess with
intent to distribute more than 1000 kilograms of marijuana.
The Indictment also sought forfeiture of property and/or
currency. He was arrested in California and made his initial
appearance later the same month. The Government identified
eleven cases related to Estrada's.
entered into a plea agreement with the Government on February
17, 2015. In exchange for Estrada's guilty plea, the
Government agreed to recommend that he receive maximum credit
for acceptance of responsibility “and a sentence of
imprisonment at the lowest end of the applicable guideline
range.” D.E. 27, ¶ 2. The agreement included a
waiver of Estrada's right to appeal or to file a §
2255 motion. Id., ¶ 7. The agreement also
stated, “The defendant is aware that the sentence will
be determined with reference to the United States
Sentencing Commission's Guideline Manual
(U.S.S.G.).” Id., ¶ 6.
rearraignment, Estrada testified that he voluntarily signed
the plea agreement, discussed it with counsel, understood it,
and was not promised anything other than set out in the
agreement. The Court reviewed the waiver of his right
of appeal and § 2255 rights. Estrada testified that he
discussed the waiver with counsel and agreed to waive those
rights. The Court advised Estrada of the
punishment range of a minimum of 10 years up to life
imprisonment, at least 5 years' supervised release,
potential fines, and a special assessment of $100. Estrada
testified that he understood. The Court further informed
Estrada of the trial rights available to him. He testified
that he understood those rights and understood that if he
pled guilty he would be giving up those rights.
Government provided a factual recitation regarding the
conspiracy, including details that Estrada provided false
identification papers and instructed drivers that he
solicited how to open multiple bank accounts, lease
warehouses, and buy trucks. When the Government finished
detailing Estrada's involvement, Estrada admitted he was
involved in the conspiracy, but he denied that the
Government's account was correct. The Court accepted
Estrada's guilty plea.
Court ordered the U.S. Probation Office to prepare a
Presentence Investigation Report (PSR). D.E. 169. The PSR
determined that Estrada was responsible for 8318.5 kilograms
of marijuana, which resulted in a base offense level of 32.
The base level was enhanced by four for leadership role.
After credit for acceptance of responsibility, Estrada's
total offense level was 33. His criminal history category was
III, resulting in a guideline range of 168 to 210 months,
with a mandatory minimum sentence of 10 years. Estrada's
counsel filed objections to the PSR relating to leadership
role and various factual assertions.
was held on May 18, 2015. The Government brought three
witnesses to testify to Estrada's role in the conspiracy.
All were convicted of participation in a marijuana conspiracy
and were awaiting sentencing in related cases.
Yasonia testified that he met with Estrada once for several
hours. Estrada solicited Yasonia to work with the
organization as a driver to transport marijuana. Yasonia
testified he was not the only driver Estrada recruited.
During their meeting, Estrada “laid down the basic
rules and we had to follow as a driver -- you know, how we
had to obtain a passport, how to set up different bank
accounts so we could purchase the truck. And, also, one thing
that he reiterated to me was having a direct phone with my
contact info.” D.E. 44, p. 16. Yasonia further
testified, “To my knowledge, I believe he ran the guys
that processed the marijuana down here in South Texas and
also provided warehouses and things, stuff like that, and ran
those guys on the Atlantic side.” Id., p. 18.
The organization operated in South Texas, Chicago, Atlanta,
and California. Estrada “was the go-to guy to get the
false identification to be able to apply for different
warehouses and even houses, but more so for the warehouses to
receive the marijuana.” Id., p. 19. Yasonia
further described Estrada's involvement, “I knew he
had a detail shop, but I also knew that he financed a couple
of the prior runs, purchasing the marijuana, supplying the
money for them, and he was involved with a lot of other
things.” Id., p. 29.
Flores-Ruiz testified that he obtained identification from
Estrada. “It was practically a packet which came with a
birth certificate from Puerto Rico and a Social
Security.” Id., p. 35. Flores-Ruiz used the
false identity to open a warehouse in Atlanta, Georgia, to
receive shipments of marijuana. Estrada also rented
warehouses directly using various false identities. The third
witness also testified that Estrada recruited two drivers and
arranged for a false identity for him. He knew of four false
identities that Estrada arranged.
Court overruled Estrada's objections to the PSR and
assessed four levels for leadership role. The Government
recommended the Court sentence Estrada to 168 months, the
lowest sentence in the applicable guideline range. After
hearing further argument, the Court sentenced Estrada to 168
months' imprisonment to be followed by 5 years'
supervised release. The Court reminded Estrada that he waived
his right to appeal.
appealed. The Fifth Circuit enforced the waiver of his right
to appeal after finding that Estrada “knowingly and
voluntarily waived his right to appeal his sentence except in
limited circumstances not present in the instant
appeal.” United States v. Estrada, No.
15-40742 at *2 (5th Cir. June 9, 2016) (per curiam)
(unpublished). The Fifth Circuit further held that
“Estrada has not established a breach of the plea
agreement on either point.” Id.
Clerk received Estrada's § 2255 motion on December
5, 2016. It is timely.
§ 2255 motion raises several grounds: 1) the Government
violated his due process rights by breaching the plea
agreement; 2) counsel provided ineffective assistance by
failing to raise the Government's breach of the plea
agreement in the district court or on appeal; 3) counsel
induced Estrada to plead guilty by a promise that his
sentence would be 108 to 135 months imprisonment; 4) the
district court erred in assessing a leadership role; and 5)
Estrada is entitled to a minor role adjustment pursuant
Government moved to dismiss the motion and to enforce
Estrada's waiver to file a § 2255 motion. The
Government did not address Estrada's motion ...