United States District Court, N.D. Texas, Dallas Division
ASTREBERTA MACEDO-FLORES (BOP Register No. 46670-177), Movant,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
O'CONNOR, UNITED STATES DISTRICT JUDGE
Austreberta Macedo-Flores, a federal prisoner, has filed a
pro se motion to vacate, set aside, or correct her
sentence under 28 U.S.C. § 2255. See Dkt. No.
1. The government has filed a court-ordered response.
See Dkt. No. 4. Macedo has failed to file a reply
brief, and the time by which to do so has expired. The Court
now concludes that her claims for relief should be denied.
a trial by jury, Macedo was found guilty of conspiracy to
possess with intent to distribute a controlled substance, in
violation of 21 U.S.C. § 846, and two counts of
possession of a controlled substance with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). She
moved the Court to set aside the jury verdict and grant her a
new trial. That motion was denied. And she received a
below-guidelines sentence of 144 months of imprisonment.
appealed. The United States Court of Appeals for the Fifth
Circuit affirmed this Court's judgment. See United
States v. Macedo-Flores, 599 F. App'x 215 (5th Cir.
2015) (per curiam). Macedo did not petition the Supreme Court
of the United States for certiorari review. But the Section
2255 motion she has filed in this Court is timely.
that motion, Macedo asserts that the Court should have
applied a downward adjustment based on her role in the
offense and claims that she received
constitutionally-ineffective assistance at trial and at
Standards and Analysis
downward-adjustment claim, based on her allegedly “very
minimal role in the overall conspiracy, ” Dkt. No. 1 at
7, was raised and rejected on direct appeal:
Macedo next argues that the district court clearly erred in
denying a four-level reduction for her minimal role in the
offense, [s]he asserts that her son directed her to deliver
the package to the undercover agent; she was unaware that it
contained drugs; she was linked to only one sale; and she was
not recorded on any wiretaps. Under U.S.S.G. § 3B1.2, a
district court may decrease a defendant's offense level
by four levels if the defendant was a minimal participant in
the criminal activity. Whether the defendant is a minimal
participant is a factual determination that is reviewed for
The record reflects that Macedo participated in numerous
sales of methamphetamine, she accepted at least four to five
deliveries of methamphetamine, and a shed behind her home was
used to conduct the drug conspiracy. Thus, the district
court's finding that she was not a minimal participant is
plausible in light of the record as a whole.
Macedo-Flores, 599 F. App'x at 216-17 (citing
United States v. Villanueva, 408 F.3d 193, 203 &
n.9 (5th Cir. 2005)).
claim, although repackaged as one under Section 2255, is
nevertheless “foreclosed” by the Fifth
Circuit's prior decision. United States v.
Fields, 761 F.3d 443, 463 n.12 (5th Cir. 2014)
(“Challenges to issues decided on direct appeal are
foreclosed from consideration in a § 2255 motion.”
(citation omitted)); see United States v. Kalish,
780 F.2d 506, 508 (5th Cir. 1986) (“It is settled in
this Circuit that issues raised and disposed of in a previous
appeal from an ...