Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Arellano v. United States

United States District Court, W.D. Texas, Austin Division

May 23, 2018

JORGE ARELLANO
v.
UNITED STATES OF AMERICA

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         Before the Court are Jorge Arli Arellano's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Dkt. No. 401), and the Government's Response (Dkt. No. 405). The undersigned submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules.

         I. GENERAL BACKGROUND

         On April 27, 2017, Jorge Arli Arellano pled guilty, pursuant to a Plea Agreement, to the charge of conspiracy to possess with intent to distribute fifty grams or more of a mixture and a substance containing a detectable amount of methamphetamine, a Schedule II Controlled Substance, in violation of 21 U.S.C. § 846. On June 28, 2017, the District Court sentenced Arellano to a 88 month term of imprisonment, followed by a four-year term of supervised release, and a $100 mandatory assessment fee. Arellano did not file a direct appeal of his conviction and sentence.

         On October 16, 2017, Arellano filed a motion to reduce his sentence pursuant to Amendment 782 to the United States Sentencing Guidelines, which was denied on October 18, 2017. Arellano has now filed this motion under 28 U.S.C. § 2255 arguing that: (1) he received a manifestly excessive sentence as a result of a flawed Sentencing Guidelines with regard to methamphetamine; (2) the District Court failed to consider that he had a serious alcohol problem and is a Mexican citizen when he sentenced Arellano; and (3) he was denied the effective assistance of counsel.

         II. STANDARD OF REVIEW

         Under § 2255, there are generally four grounds 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 Section 2255 is extremely limited: “A defendant can challenge his conviction after it is 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). Finally, a defendant may waive his statutory right to appeal his sentence including filing a § 2255 motion, if the waiver is knowing and voluntary. Untied States v. McKinney, 406 F.3d 744, 746 (2005).

         III. DISCUSSION

         A. Waived Claims

         Arellano argues he received a manifestly excessive sentence “[a]s a result of a flawed Sentencing Guideline on Methamphetamine, ” and complains that when the Court sentenced him, it failed to consider that he had a serious alcohol problem and is a Mexican citizen. As part of his Plea Agreement, Arellano waived his right to raise these types of claims in a § 2255 Motion.

         A defendant may, as part of a valid plea agreement, waive his statutory right to appeal his conviction on direct appeal and under 28 U.S.C. § 2255, if the waiver is knowing and voluntary. United States v. Wilkes, 20 F.3d 651 (5th Cir.1994); United States v. Melancon, 972 F.2d 566 (5th Cir. 1992). In order to be valid, a defendant's waiver of his right to appeal must be informed and voluntary. United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Specifically, a defendant must know that he had a “right to appeal his sentence and that he was giving up that right.” Id. at 568. The plea agreement will be upheld where the record clearly shows the defendant read and understood it and that he raised no question regarding any waiver-of-appeal issue. United States v. Portillo, 18 F.3d 290 (5th Cir. 1994).

         Arellano's Plea Agreement informed him of the right to appeal his sentence and that by entering into the plea agreement, he would forfeit that right. Arellano's Plea Agreement provides, in relevant part, the following:

Collateral Attack: Defendant agrees to waive and give up his right to challenge Defendant's conviction or sentence in a post-conviction collateral challenge, including but not limited to a proceeding pursuant to 28 U.S.C. ยงยง 2241 and 2255; except, Defendant does not waive the right to challenge Defendant's sentence based on ineffective assistance of counsel or prosecutorial misconduct. If the Defendant makes a claim of ineffective assistance of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.