United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE
Court sentenced Ramon Resendez-Gonzalez
("Resendez") to 62 months in prison on one count of
illegal re-entry by a previously deported alien after an
aggravated felony conviction (Dkt. 33). Resendez
appealed, and his appointed appellate counsel filed an
Anders brief; the Fifth Circuit dismissed the appeal as
frivolous (Dkt. 40). Resendez now brings a collateral attack
on his sentence under 28 U.S.C. § 2255 (Dkt. 42). The
Court will dismiss the motion under Rule 4 of the Rules
Governing Section 2255 Proceedings for the United States
pled guilty in this Court to one count of illegal re-entry by
a previously deported alien after an aggravated felony
conviction; Resendez's extensive criminal history
includes a 1983 Texas conviction for murder (Dkt. 33).
See 8 U.S.C. §§ 1326(a), 1326(b)(2);
see also 8 U.S.C. § 1101(a)(43)(A) (including
murder in the definition of "aggravated felony").
This Court calculated a total offense level of 17 under the
2015 edition of the United States Sentencing Guidelines. The
Court calculated a criminal history total of 13, which placed
Resendez in Criminal History Category VI; placement in that
category combined with a total offense level of 17 produced a
Sentencing Guidelines range of 51 to 63 months. The Court
sentenced Resendez to 62 months.
appealed. The Federal Public Defender's Office filed a
thorough 39-page Anders brief in the Fifth Circuit
explaining the manner in which the Court calculated
Resendez's sentence and ultimately concluding that there
was no legally nonfrivolous appellate challenge to that
sentence. See Fifth Circuit Docket Number 16-40818.
The Fifth Circuit agreed with the Federal Public
Defender's assessment, allowed the Federal Public
Defender to withdraw, and dismissed the appeal (Dkt. 40).
Resendez then filed this motion, in which he argues that: (1)
his trial counsel failed to object when the Court improperly
calculated his Guidelines range without using the modified
categorical approach to sentencing; (2) his trial counsel
failed to object when the Court improperly calculated his
Guidelines range using stale convictions; and (3) the
62-month sentence is unconstitutionally excessive (Dkt. 42 at
U.S.C. § 2255 allows federal prisoners to collaterally
attack their convictions; but the circumstances under which
they can use it are tightly cabined because the federal
courts presume that a defendant stands fairly and finally
convicted after the right to direct appeal has been exhausted
or waived. United States v. Cervantes, 132 F.3d
1106, 1109 (5th Cir. 1998). In keeping with that presumption,
a claim raised and rejected on direct appeal will not be
considered on collateral review. United States v.
Webster, 392 F.3d 787, 791 & n. 5 (5th Cir. 2004).
Additionally, "[n]onconstitutional claims that could
have been raised on direct appeal, but were not, may not be
asserted in a collateral proceeding." United States
v. Towe, 26 F.3d 614, 616 (5th Cir. 1994). Essentially,
"[r]elief under § 2255 is reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice." Id.
of "constitutional or jurisdictional magnitude" may
be raised for the first time on collateral
review-Cervantes, 132 F.3d at 1109-if the defendant
"demonstrates cause for failing to raise the issue on
direct appeal and actual prejudice resulting from the
error." United States v. Patten, 40 F.3d 774,
776 (5th Cir. 1994). A Section 2255 petitioner may satisfy
the cause-and-prejudice standard by showing that he received
unconstitutionally ineffective assistance of counsel.
Murray v. Carrier, 477 U.S. 478, 488 (1986);
United States v. Pierce, 959 F.2d 1297, 1301 (5th
Cir. 1992). Resendez is evidently attempting to do just
that-he alleges that his trial counsel was ineffective in
that he failed to raise the issues about which Resendez now
complains (Dkt. 42 at p. 2). With that in mind, the Court
will address Resendez's claims through the prism of his
assertion that he received ineffective assistance of counsel.
INEFFECTIVE ASSISTANCE OF COUNSEL
of ineffective assistance of counsel are governed by the
well-established, and demanding, standard set forth in
Strickland v. Washington. In order to prevail, a
criminal defendant must show that counsel failed to act
reasonably considering all the circumstances and that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. Cullen v. Pinholster, 563 U.S.
170, 189 (2011). Counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment; and the defendant cannot meet the "reasonable
probability" standard without showing a substantial, as
opposed to conceivable, likelihood of a different result.
Id. "As [the Fifth Circuit] has interpreted
Strickland, counsel is not required to make futile
motions or objections." Garcia v. Stephens, 793
F.3d 513, 525 (5th Cir. 2015) (quotation marks omitted). The
prejudice prong of the Strickland test may be
addressed before the performance prong, as the absence of
either prong is dispositive. Strickland v.
Washington, 466 U.S. 668, 697 (1984). "Surmounting
Strickland's high bar is never an easy
task." Padilla v. Kentucky, 559 U.S. 356, 371
Improper calculation of the Guidelines range
Resendez's first two claims argue that his counsel should
have objected to the Court's improper calculation of his
Sentencing Guidelines range. These claims are frivolous. As
noted above, Resendez's appellate counsel filed a
detailed Anders brief that painstakingly outlined
this Court's calculation of Resendez's Guidelines
range and included two tables explaining exactly how the
Court arrived at Resendez's total offense level and
criminal history total. The Fifth Circuit agreed with the
Federal Public Defender's assessment that there is no
legally nonfrivolous appellate challenge to Resendez's
sentence. Resendez's counsel was not required to make
futile objections to a properly calculated Guidelines range.
The Court rejects these claims.