United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE.
the Magistrate Judge in this federal habeas corpus proceeding
pursuant to 28 U.S.C. §2255 is Movant Carlos Manuel
Boria's §2255 Motion to Vacate, Set Aside or Correct
Sentence (Document No.515) and Memorandum of Law in Support
(Document No. 516),  and the United States's Response and
Motion for Summary Judgment (Document No.526). After
reviewing the parties' submissions, the record of the
proceedings before the District Court and on appeal in the
underlying criminal case, and the applicable case law, the
Magistrate Judge RECOMMENDS, for the reasons set forth below,
that the United States's Motion for Summary Judgment
(Document No. 526) be GRANTED and that Movant Carlos Manuel
Boria's §2255 Motion to Vacate, Set Aside or Correct
Sentence (Document No.515) be DENIED.
Carlos Manuel Boria ("Boria"), who is currently in
the custody of the United States Bureau of Prisons, is
seeking federal habeas corpus relief under 28 U.S.C.
§2255. This is Boria's first attempt at §2255
January 3, 2011, a grand jury in the United States District
Court for the Southern District of Texas, Houston Division
returned a five-count Indictment. (Document No. 33). Count 1
alleged conspiracy to possess with intent to distribute 5
kilograms or more of cocaine in violation of 21
U.S.C.§§ 841(a)(1) and (b)(1)(a), 846. Count 2
alleged aiding and abetting attempted possession with intent
to distribute cocaine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(a), 846 and 18 U.S.C. § 2. Count 3
alleged conspiracy to commit a violation of 18 U.S.C. §
924(c) in violation of 18 U.S.C. § 924(c)(1)(A), 924(o).
Count 4 alleged aiding and abetting a violation of 18 U.S.C.
§ 924(c) in violation 18 U.S.C. § 924(c)(1)(A), 2.
Count 5 alleged possession of a firearm by a convicted felon
in violation of 18 U.S.C. § 922(g)(1). Named as
defendants were Boria (Counts 1-5), Francisco Javier
Rodriguez (Counts 1-4), Edwin Rivera-Otero (all Counts), Eric
Alberto Lewis (Counts 1-4), Marvin Cesar Carabali-Diaz
(Counts 1-4), Miguel Suarez Ramirez (all Counts), and Iris
Yamileth Bonilla-Reyes (all Counts). A 13-count Superseding
Indictment was returned by the Grand Jury on August 9, 2012.
(Document No. 142). The Superseding Indictment charged the
same Defendants. Counts 1S-5S were the same as Counts 1 -4 in
the earlier Indictment. The Superseding Indictment added 8
new counts. Count 6S charged aggravated identity theft in
violation of 18 U.S.C. § 1028A(a)(1). Count 7S alleged
false claim to United States Citizenship in violation of 18
U.S.C. § 911. Count 8S alleged aggravated identity theft
in violation of 18 U.S.C. § 1028A(a)(1). Count 9S
alleged false claim to United States Citizenship in volation
of 18 U.S.C. § 911. Count 10S alleged aggravated
identity theft in volation of 18 U.S.C. § 1028A(a)(1).
Count 1 IS alleged false claim to United States Citizenship
in violation of 18 U.S.C. §911. Count 12S alleged
unlawful reentry into the United States in violation of 8
U.S.C. § 1326(a) and (b)(2). Count 13S charged unlawful
re-entry into the United States in violation of U.S.C. §
1326(a). Boria was charged in Counts 6S and 7S. Edwin
Rivera-Otero was charged in Count 8S and 9S. Marvin Cesar
Carabali-Diaz was charged in Count 10S, 1 IS and 13S. Iris
Yamileth Bonilla-Reyes was charged in Count 12S.
September 26, 2012, Boria pleaded guilty to Count 6S and 7S,
without a written Plea Agreement. As for the remaining
charges, following a six day jury trial, Boria was found
guilty of Counts 1S-5S. (Document No. 246).
to sentencing, a pre-sentence investigation report
("PSR") was prepared to which Boria filed written
objections. (Document No.269, 292, 294). Boria also filed a
Sentencing Memorandum. (Document No. 298). The PSR assigned
Boria a base offense level of 34. Because of his role as an
organizer/leader in the offense, Boria's base offense
level was adjusted upward four levels pursuant to U.S.S.G.
§ 2D1.1(b)(1). For Counts 1S-5S, Boria had an adjusted
offense level of 38. As for the offenses to which Boria
pleaded guilty, his base offense level was 8. Boria had a
combined adjusted offense level of 38. With an adjusted
offense level of 38, and a criminal history category of IV,
Boria had an advisory guideline sentencing range of 324 to
405 months imprisonment. Count 4S carried a mandatory
consecutive term of 60 months imprisonment pursuant to 18
U.S.C. § 924(c)(1)(A). Count 6S carried a consecutive
term of 24 months imprisonment pursuant to 18 U.S.C. §
was sentenced on April 12, 2013. (Document No. 303,
Transcript of Sentencing Hearing, Document No.3 62). Boria
was sentenced to 405 months imprisonment as to Counts 1S and
2S, 240 months as to Count 3S, 120 months as to Count 5S, and
36 months as to Count 7S, all counts to be served
concurrently, followed by 60 months as to Count 4S to run
consecutive to all other counts, to be followed by 24 months
as to Count 6S, to run consecutive to all other counts, for a
total term of 489 months, to be followed by a 5 year term of
supervised release as to Counts IS, 2S, and 4S, three year
term as to Counts 3S and 5S, and a one year term as to Counts
6S and 7S, all terms to run concurrently. He was ordered to
pay a special assessment of $700. (Transcript of Sentencing,
Document No.362, pp.15-18). In imposing sentence, the Court
Carlos Manuel Boria is before the Court this afternoon after
being found guilty by a jury of Counts 1 through 5 of the
superseding indictment. And after pleading guilty to Count 6
and 7 of the superseding indictment.
The investigation revealed that Mr. Boria and his
co-conspirators met with an undercover DEA agent and
conspired to rob at least 30 kilograms of cocaine from the
Mr. Boria, along with the other co-conspirators, agreed to
restrain a victim in the course of the offense. He held [an]
organizer, leadership role within the conspiracy, and brought
the rest of [the] defendants into the proposed scheme to rob
In addition, Mr. Boria is responsible for possession of a
firearm. He was dressed in police clothing at the same time.
The investigation revealed that his true identity is Luis
German Rodriguez, a 33 year old Colombian national who
purchased the identity of a United States citizen who was a
native of Puerto Rico. He is married to co-defendant Iris
Bonilla Reyes, and the couple has a one-year old son. The
defendant has five other children from a previous
relationship. He is residing illegally in Houston since 1988,
and he has reported that he maintains employment as a
self-employed contract painter.
He attempted to impersonate a police officer and was dressed
in police clothing at the time of his arrest, and he and his
co-conspirators intended to physically restrain their victims
with zip ties in the course of events. This egregious conduct
was not taken into account in the guideline calculations, and
I think they warrant a sentence at the upward end of the
guideline range, and that such a sentence at the high end
will protect the public and also provide deterrence, and is
sufficient and necessary but not greater than necessary to
comply with the purposes of statutory sentencing framework
found in 18 United States Code Section 3553(a).
Although Mr. Boria will likely be deported after he serves
his sentence, I am going to impose a five-year term of
supervised release because it will contribute to the - as
being- to the recidivism of coming back into the country
illegally. (Document No. 362, p. 13-15).
was entered on April 19, 2013. (Document No.324). Boria appealed
his conviction and sentence to the United States Fifth
Circuit Court of Appeals. Boria raised several issues on
direct appeal. Boria argued that the court erred in denying
his motion to dismiss the indictment due to outrageous
conduct by the government in setting up the reverse-sting
operation. Boria also argued that the court erred in denying
his motion to compel the testimony or disclose the identity
of the CI. Boria argued that the Court erred in declining to
instruct the jury on the defense of entrapment. Boria further
argued that the indictment was constructively amended at
trial because the jury instruction's description of the
first element of Count 2 omitted the word "attempt"
and failed to specify that the controlled substance was
cocaine. On or about April 13, 2015, the Fifth Circuit
affirmed Boria's conviction and sentence. (Document No.
498, 502). Boria did not seek certiorari review with the
United States Supreme Court. His conviction became final on
July 15, 2015, the date that the 90-day period for requesting
a Writ of Certiorari expired. See Clay v. United
States, 537 U.S. 522, 532 (2003);S.Ct. Rule 13.1. On
November 8, 2015, Boria timely filed the instant § 2255
motion. (Document No.515).
Ineffective Assistance of Counsel Claims
of ineffective assistance of counsel are generally measured
by the standard of Strickland v. Washington, 466
U.S. 668 (1984). Under Strickland, a petitioner must
be able to show that his counsel was deficient and that the
deficiency prejudiced him to the extent that a fair trial
could not be had. Strickland, 466 U.S. at 687.
Deficiency is judged by an objective reasonableness standard,
with great deference given to counsel and a presumption that
the disputed conduct is reasonable. Id. at 687-88.
The prejudice element requires a petitioner to prove that
absent the disputed conduct of counsel, the outcome would
have been both different and more favorable. Id. at
694-95. Under Strickland, a petitioner must
establish both deficiency and prejudice prongs to be entitled
to habeas relief. The failure to establish either deficient
performance or prejudice makes it unnecessary to examine the
other prong. United States v. Seyfert, 67 F.3d 544,
547 (5th Cir. 1995).
the deficiency prong of Strickland, judicial
scrutiny of counsel's performance is "highly
deferential" and "a strong presumption" is
made that "trial counsel rendered adequate assistance
and that the challenged conduct was the product of reasoned
trial strategy." Wilkerson v. Collins, 950 F.2d
1054, 1064-65 (5th Cir. 1992), cert, denied, 509
U.S. 921 (1993) (citing Strickland). To overcome the
presumption of competence, the petitioner "must identify
the acts or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment."
Strickland, 466 U.S. at 690. Under the prejudice
prong of Strickland, a petitioner must be able to
establish that absent his counsel's deficient
performance, the result of his trial could have been
different. "An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment." Id. at 691. When ineffectiveness
claims relate to counsel's performance at sentencing,
Strickland's deficiency prong is met when
counsel fails to "research facts and law and raise
meritorious arguments based on controlling precedent.
United States v. Fields,565 F.3d 290, 296 (5*
Cir.), cert, denied,558 U.S. 914 (2009)(citing
United States v. Conley,349 F.3d 837, 841
(5th Cir. 2003)). In addition, '"any
amount of ...