United States District Court, S.D. Texas, Corpus Christi Division
SUPPLEMENTAL ORDER DISMISSING MOTION TO VACATE,
SET-ASIDE OR CORRECT SENTENCE AND DENYING A CERTIFICATE OF
Graham Jack Senior United States District Judge.
Fifth Circuit Court of Appeals remanded to this Court an
issue that was not resolved in Alejandro Oceguera's
motion to vacate, set aside or correct sentence pursuant to
28 U.S.C. § 2255. D.E. 40. The Court summarized the
background and procedural history of Oceguera's criminal
proceedings in its Order dated May 23, 2017 (D.E. 42).
Court's original Order, the Court summarized
Oceguera's grounds for relief as follows: 1) counsel was
ineffective because counsel failed to negotiate a fast-track
plea agreement or to advise Oceguera that such a plea was
available, and 2) the government breached the plea agreement
when it failed to recommend a 5K sentence reduction.
Oceguera's Memorandum of Law recited a third ground that
the Court overlooked: counsel provided ineffective assistance
at sentencing by failing to request a continuance or to raise
the proposed amendments to the Sentencing Guidelines that
would have reduced Oceguera's sentencing guideline range.
was arrested in October 2015 for illegal reentry and pleaded
guilty on December 29, 2015. The Presentence Investigation
Report (PSR) was filed on February 26, 2016. The Court
sentenced Oceguera on March 8, 2016, to 64 month's
imprisonment for illegal reentry.
January 8, 2016, before the PSR was completed, the United
States Sentencing Commission issued a press release regarding
potential amendments to the Sentencing Guidelines for
immigration offenses. On January 14, 2016, the Commission sought
comments on several proposed amendments including Amendment
802 that revised the text of U.S.S.G. § 2L1.2,
applicable here. The Commission held hearings on February
17 and March 16, 2016. On April 28, 2016, the proposed
Amendments were submitted to Congress with an effective date
of November 1, 2016. Oceguera was sentenced before the
final hearing on proposed Amendment 802, before the language
was final, and nine months before its effective date.
Court discussed the Strickland standard for
complaints of ineffective assistance of counsel in its
previous Order. In addition, “[g]enerally, counsel is
not ineffective for failing to anticipate future changes in
the law; counsel is not required to be clairvoyant.”
See United States v. Cooks, 461 F.2d 530, 532 (5th
Cir. 1972); see also United States v. Fields, 565
F.3d 290, 296 (5th Cir. 2009); Lucas v. Johnson, 132
F.3d 1069, 1078-1079 (5th Cir. 1998).
district courts have considered arguments similar to those
Oceguera makes here and rejected them See United Sates v.
Frazier, 2015 WL 5595611 at *4-5 (M.D. La. 2015) (and
collecting cases); Marquez v. United States, 2015 WL
13505957 (W.D. Tex. 2015); Caro-Alarcon v. United
States, 2011 WL 1882127 at *4-5 (W.D. Tex. 2011). The
most compelling of these cases is Frazier.
was sentenced six days before Congress passed the Fair
Sentencing Act (FSA). The FSA decreased the mandatory minimum
sentence of 120 months to 60 months and increased the
quantity of drugs that triggered the minimum sentence, which
would have substantially decreased Frazier's guideline
range and sentencing exposure. Frazier raised the issue on
appeal to the Fifth Circuit which held that he was properly
sentenced based upon the statute and the guidelines in effect
at the time of his sentence. In addition, the Fifth Circuit
held that FSA did not indicate that it applied
retroactively. On collateral review, Frazier alleged that
counsel was ineffective for failing to request a continuance
that would have allowed Frazier to be sentenced under the
FSA. The district court rejected that argument. At the time
of Frazier's sentencing, no action had been taken in the
House of Representatives and none was scheduled, nor was
there any indication that the President would sign the
legislation that had been passed by the Senate five months
earlier. This uncertainty lead the district court to conclude
that counsel's failure to request a continuance did not
constitute deficient performance.
level of uncertainty in Frazier was much less than
the uncertainty here. At the time Oceguera was sentenced, the
final language of Amendment 802 was uncertain and the final
hearing had not yet been held. In addition, as the court in
Caro-Alarcon noted, counsel may not unilaterally
continue a trial or sentencing. 2011 WL 1882127 at *5.
Whether the Court would have granted a continuance is too
speculative to establish prejudice. Id. Furthermore,
Amendment 802 is not retroactively applicable. U.S.S.G.
§ 1B1.10(d) (802 is not listed); see United States
v. Duenas-Rodriguez, 706 Fed. App'x 215, 216(5th
Cir. 2017) (per curiam) (unpublished).
these reasons, the Court finds that Oceguera has not met his
burden to demonstrate that counsel's performance fell
below reasonable professional standards.
CERTIFICATE OF APPEALABILITY
appeal may not be taken to the court of appeals from a final
order in a habeas corpus proceeding “unless a circuit
justice or judge issues a certificate of
appealability.” 28 U.S.C. § 2253(c)(1)(B).
Although Oceguera has not yet filed a notice of appeal, the
§ 2255 Rules instruct this Court to “issue or deny
a certificate ...