Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Macedo-Flores v. United States

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

September 5, 2017

ASTREBERTA MACEDO-FLORES (BOP Register No. 46670-177), Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          REED O'CONNOR, UNITED STATES DISTRICT JUDGE

         Movant 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.

         Applicable Background

         Following 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.

         She 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.

         Through 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 sentencing.

         Legal Standards and Analysis

         Downward-Adjustment Claim

         Macedo's 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 clear error.
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)).

         This 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.