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United States v. Tamez

United States District Court, S.D. Texas, Corpus Christi Division

January 18, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
FLAVIO TAMEZ, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendant/Movant Flavio Tamez's Motion for Amended Findings and Conclusions and Incorporated Motion to Alter/Amend Judgment (D.E. 943), whereby he moves the Court to amend its September 26, 2017 Memorandum Opinion & Order granting the Government's motion for summary judgment and denying Movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (D.E. 939).

         I. BACKGROUND

         Movant pled guilty to conspiracy with intent to distribute more than 1, 000 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count One) and money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 1956(a)(2) (Count Six). Pursuant to a written Plea Agreement, Movant waived his right to appeal his sentence or file a motion under 28 U.S.C. § 2255. The Court accepted Movant's guilty plea after being satisfied that he was competent to enter a plea, there was a factual basis for the plea, he understood the consequences of entering a plea, and he was voluntarily and knowingly pleading guilty.

         Movant was sentenced to 324 months' imprisonment on Count One and 240 months on Count Six, to be served concurrently and followed by 5 years' supervised release. At sentencing, the Court also attempted to modify the Plea Agreement by rescinding the appellate waiver and allowing Movant to retain his right to appeal. Movant appealed, but the Fifth Circuit dismissed his appeal on the Government's motion for specific performance of the appellate waiver provision of the Plea Agreement. The Supreme Court thereafter denied Movant's petition for a writ of certiorari.

         Movant filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 on March 2, 2017, asserting the following grounds for relief:

1) His guilty plea was involuntary because his waiver of his right to appeal and to post-conviction relief is the result of flawed advice from trial counsel regarding his potential sentencing exposure, and he was not correctly advised with respect to his rights to post-conviction relief;
2) The Court "failed to hew to Rule 11 of the Federal Rules of Criminal Procedure . . . during and in relation to sentencing and re-arraignment hearings, " and trial counsel did not adequately represent Movant prior to and at rearraignment;
3) Appellate counsel was ineffective by failing to thwart the Government's effort to secure dismissal of the appeal under the waiver provision of the Plea Agreement; and
4) The doctrine of cumulative error arising as a result of ineffective assistance of counsel resulted in the imposition of an unreasonable sentence.

D.E. 899. By written Memorandum Opinion & Order and Final Judgment entered September 26, 2017, the Court granted the Government's motion for summary judgment and denied Movant's § 2255 motion on the grounds that the waiver contained in his written Plea Agreement barred his claims. D.E. 939, 940. Movant's present motion to amend that Order was mailed on October 24, 2017, according to his Certificate of Service. It is timely. See Fed. R. Civ. P. 52(b), 59(e).

         II. MOVANT'S CLAIMS

         Movant's current motion for amended findings/conclusions or to alter/amend the judgment raises the following issues:

A. Whether the waiver provision at ΒΆ 7 of the written Plea Agreement can bar [Movant's] motion under 28 ...

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