United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
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.
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.
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.
STANDARD OF REVIEW
§ 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).
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.
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).
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. §§
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 ...