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 Natividad Mercado
Medina (Mercado)'s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 [#226],
Mercado's Supporting Brief [#227], the Government's
Response [#236] in opposition, and Mercado's Reply [#240]
in support. Having reviewed the file, the documents, and the
governing law, the Court now enters the following opinion and
January 19, 2016, Mercado was charged with conspiracy to
commit mail fraud in violation 18 U.S.C. §§ 1341
and 1349. Indictment [#235]. OnFebruary2, 2016, Medina was
arrested in Georgia and subsequently transferred to Austin.
Mercado pled guilty on May 16, 2016. Findings of Fact [#117]
plea was entered before Magistrate Judge Andrew Austin. At
the plea colloquy, both Mercado's counsel and an
interpreter were present. May 16, 2016 Tr. [#231 ] at 1. In
response to Judge Austin's inquiries, Mercado indicated
she had met with her attorney about her case, she had spoken
to her attorney about all important matters in her case, and
she was satisfied with her attorney's representation.
Id. at 6. Judge Austin also confirmed with Mercado
the plea agreement had been translated into Spanish before
she signed it. Id. at 7. Judge Austin verified
Mercado understood the plea agreement was not binding on this
Court and no one had promised Mercado a specific sentence.
Id. at 13-14, 20-21. Finally, Judge Austin also
asked Mercado if she understood her right to appeal her
conviction or sentence was limited to a challenge based on
ineffective assistance of counsel or prosecutorial
misconduct. Id. at 11. Mercado answered she
understood that limitation. Id. at 12.
judgment entered on August 16, 2016, this Court sentenced
Mercado to 121 months of imprisonment followed by three years
of supervised release. See J. & Commitment
[#175]. Mercado was also ordered to pay a $ 100 assessment.
Id. At the sentencing, Mercado's counsel and an
interpreter were both present. Aug. 12, 2016 Tr. [#232] at 1.
The Court confirmed Mercado reviewed the probation
department's presentence report (PSR) with her attorney
and offered Mercado the change to speak to the Court about
any matter. Id. at 24-25. Mercado took that
opportunity to apologize to the Court and the Government.
of sentencing, the Government moved for a downward departure
from the guideline range set by the Court, advocating for a
63-78 month sentence rather than a 121-151 month sentence.
See Id. at 24, 27. While the Court ultimately denied
the Government's motion for a downward departure, the
Court considered the Government's reasons for seeking a
departure and sentenced Mercado at the bottom of the
guidelines to 121 months. Id. at 28. Finally, the
Court informed Mercado she had 14 days to file a notice of
appeal and provided Mercado with a letter confirming her
right to appeal and the deadline. Id. at 32. No
direct appeal was taken in this case.
7, 2017, Mercado placed her Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 in the
prison mail system. Mot. Vacate [#226] at 13. In her motion
and supporting brief, Mercado asks the Court to vacate her
sentence, alleging she received ineffective assistance of
counsel. Id. at 4-6, 13. The Government responded to
Mercado's § 2255, and Mercado subsequently filed a
reply. Resp. [#236]; Reply [#240]. The motion is now ripe for
the Court's consideration.
§ 2255, four general grounds exist upon which a
defendant may move to vacate, set aside, or correct his
sentence: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the District
Court was without jurisdiction to impose the sentence; (3)
the sentence imposed was in excess of the maximum authorized
by law; and (4) the sentence is otherwise subject to
collateral attack. 28 U.S.C. § 2255. The nature of a
collateral challenge under § 2255 is extremely limited:
"A defendant can challenge his conviction after is it
presumed final only on issues of constitutional or
jurisdictional magnitude ... and may not raise an issue for
the first time on collateral review without showing both
'cause' for his procedural default, and 'actual
prejudice' resulting from the error." United
States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If
the error is not of constitutional or jurisdictional
magnitude, the movant must show that 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). A defendant's claim of ineffective assistance of
counsel gives rise to a constitutional issue and is
cognizable pursuant to § 2255. United States v.
Walker, 68 F.3d 931, 934 (5th Cir. 1996).
prevail on a claim of ineffective assistance of counsel, a
movant must show that (1) his counsel's performance was
deficient and (2) that the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
counsel's performance is deficient if it falls below an
objective standard of reasonableness. Id. A court
will not find ineffective assistance of counsel merely
because it disagrees with counsel's trial strategy.
Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999).
A court's review of counsel's performance must be
highly deferential, with a strong presumption that the
performance was reasonable. Strickland, 466 U.S. at
689. Moreover, "[a] fair assessment of attorney
performance requires every effort to be made to eliminate the
distorting effects of hindsight." Id.
to demonstrate prejudice, a movant must show "a
reasonable probability that the result of the proceedings
would have been different but for counsel's
unprofessional errors." Crane, 178 F.3d at 312.
"However, the mere possibility of a different outcome is
not sufficient to prevail on the prejudice prong."
Id. at 312-13 (internal quotation marks omitted)
(quoting Ransom v. Johnson,126 F.3d 716, 721 (5th
Cir. 1997)). "A reasonable probability ...