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Perez v. United States

United States District Court, W.D. Texas, Austin Division

June 12, 2017

RENE PEREZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAM SPARKS UNITED STATES DISTRICT JUDGE.

         BE IT 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.

         Background

         On 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.

         On June 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.

         This 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.

         Perez's 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.

         Following 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).

         On 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.

         Analysis

         I. Legal Standard

         Generally, 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. Placente, 81F.3dat558.

         II. Application

         The 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).

         Perez asserts a myriad of arguments in an attempt to show he received ineffective assistance of counsel. These arguments fall into two broad categories:

         (1) ineffective-assistance-of-counsel claims based on his counsel's advice prior to his ...


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