United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Movant Rene Perez's
Motion to Vacate, Set Aside, or Correct Sentence Pursuant to
28 U.S.C. § 2255 [#797], Perez's Memorandum [#798]
in support, Respondent United States of America's
Response [#808] in opposition, and Perez's Reply [#813]
in support. Having reviewed the documents, the governing law,
and the file as a whole, the Court now enters the following
opinion and orders.
October 7, 2014, Movant Rene Perez was charged with
conspiracy to possess with intent to distribute five
kilograms or more of a mixture and substance containing a
detectable amount of cocaine, and conspiracy to possess with
intent to distribute 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine,
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).
Indictment [#3]. On May 7 and 19, 2015, Perez appeared before
Magistrate Judge Austin for rearraignment and plea. Instead
of pleading to the charges, however, Perez moved for new
counsel. In his written order denying Perez's motion,
Judge Austin noted that this was not Perez's first motion
to appoint new counsel; his first attorney was permitted to
withdraw on February 18, 2015, after Perez complained about
his counsel's representation. Order of May 8, 2015 [#486]
at 1. Having heard from both Perez and his counsel, Ricardo
Guzman, Judge Austin concluded "there is no conflict of
interest between Perez and his attorney, " and
"Perez's attorney has worked diligently to review
the extensive amount of discovery in the case, and is fully
capable and prepared to go to trial on the case, and to
zealously represent Perez." Id.
1, 2015, a superseding information was filed, charging Perez
with conspiracy to possess with intent to distribute 50 grams
or more of a mixture and substance containing a detectable
amount of methamphetamine. Superseding Information [#493].
The charge related to conspiracy to distribute cocaine was
dropped. That same day, Perez pleaded guilty to the
superseding information before Magistrate Judge Lane. There
was no plea agreement.
Court held a two-day sentencing hearing on August 27 and 28,
2015. The presentence report (PSR) prepared in advance of
these hearings calculated Perez's base offense level as
34 and added enhancements for possessing a firearm, importing
methamphetamine, maintaining a premise for the purpose of
distributing methamphetamine, and for acting as a leader or
organizer of criminal activity that involved five or more
participants. With a total offense level of 41 and a criminal
history category of III, the guideline range for imprisonment
was 360 months to life. At the sentencing hearings, the
Government produced evidence of over 400 intercepted phone
calls connecting Perez to a conspiracy involving drug
trafficking and money laundering. Aug. 27, 2015 Hr'g Tr.
[#754] at 30:16-18. For instance, one of the intercepted
phone conversations involved a leader of the conspiracy,
Mario Gonzalez, collecting $100, 000.00 from Perez.
Id. at 19:3-15. The Government also produced
evidence of drugs seized from a house located at 7311
Northeast Drive, Austin, Texas (the stash house) and
Perez's connection to that property.
counsel objected to the guideline range based on the drug
quantities calculation, the firearm enhancement, the stash
house enhancement, and the leader/organizer enhancement. Aug.
28, 2015 Hr'g Tr. [#755] at 2:21-3:7. The Court sustained
counsel's objection to the stash house enhancement and
overruled the other objections. Id. at 18:17-18.
Perez's total offense level was therefore reduced to 39;
with a criminal history category of III, the guideline range
for imprisonment was 324 to 405 months.
the hearing on August 28, 2015, this Court sentenced Perez to
a 324-month term of imprisonment and a five-year term of
supervised release. Judgment [#696]. Perez filed a notice of
appeal on September 3, 2015. Notice Appeal [#720]. The Fifth
Circuit dismissed Perez's appeal on July 13, 2016,
concluding "the record is not sufficiently developed to
allow us to make a fair evaluation of Perez's claims of
ineffective assistance of counsel" and
"concur[ring] with the counsel's assessment that the
appeal presents no nonfrivolous issue for appellate
review." United States v. Perez, No. 15-50828
(5th Cir. July 13, 2016).
January 11, 2017, Perez executed the instant §2255
motion, arguing he received ineffective assistance of
counsel. Mot. [#797]. Following several motions for extension
of time, the motion is now ripe for decision.
there are four grounds upon which a defendant may move to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255: (1) the imposition of a sentence in
violation of the Constitution or the laws of the United
States; (2) a lack of jurisdiction of the District Court that
imposed the sentence; (3) the imposition of a sentence in
excess of the maximum authorized by law; and (4) 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). Section 2255 is an extraordinary
measure; it cannot be used for errors that are not
constitutional or jurisdictional if those errors could have
been raised on direct appeal. United States v.
Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error
is not of constitutional or jurisdictional magnitude, the
movant must show the error could not have been raised on
direct appeal and would, if condoned, "result in a
complete miscarriage of justice." United States v.
Smith, 32 F.3d 194, 196 (5th Cir. 1994). In addition, a
defendant who raises a constitutional or jurisdictional issue
for the first time on collateral review must show both
"cause" for his procedural default, and
"actual prejudice" resulting from the error.
United States Supreme Court's decision in Strickland
v. Washington provides the familiar two-pronged test for
establishing a claim of ineffective assistance of counsel:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. 668, 687 (1984). In the context of sentencing, the
movant must demonstrate a reasonable probability that, but
for counsel's errors with respect to sentencing matters,
he would have received less time in prison. See United
States v. Grammas, 376 F.3d 433, 438 (5th Cir. 2004).
asserts a myriad of arguments in an attempt to show he
received ineffective assistance of counsel. These arguments
fall into two broad categories:
ineffective-assistance-of-counsel claims based on his
counsel's advice prior to his ...