United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
for consideration the motion of Oscar Melanson
("movant") under 28 U.S.C. § 2255 to vacate,
set aside, or correct sentence. After having considered the
motion, the memorandum in support, the government's
response, and pertinent parts of the record in No.
4:16-CR-021-A, styled "United States of America v. Cleto
Tarin, et al.," the court has concluded that the motion
should be denied.
contained in the record of the underlying criminal case
discloses the following:
February 10, 2016, movant, along with numerous others, was
named in a two-count indictment charging him in Count Two
with conspiracy to possess with intent to distribute a
mixture and substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 846. CR
37. On March 25, 2016, movant appeared before the court with
the intent to enter a plea of guilty to the offense charged
without benefit of a plea agreement. Movant and his attorney
signed a factual resume setting forth the elements of the
offense, the maximum penalty movant faced, and the stipulated
facts supporting movant's guilt. CR Doc. 219. Under oath,
movant stated that no one had made any promise or assurance
of any kind to induce him to plead guilty. Further, movant
stated his understanding that the guideline range was
advisory and was one of many sentencing factors the court
could consider; that the guideline range could not be
calculated until the presentence report ("PSR") was
prepared; the court could impose a sentence more severe than
the sentence recommended by the advisory guidelines and
movant would be bound by his guilty plea; movant was
satisfied with his counsel and had no complaints regarding
his representation; and, movant and counsel had reviewed the
factual resume and movant understood the meaning of
everything in it and the stipulated facts were true. CR Doc.
probation officer prepared a PSR reflecting that movant's
base offense level was 34. CR Doc. 297, ¶ 40. Movant
received a two-level enhancement for possession of a firearm,
id. ¶ 41, and a two-level enhancement for
maintaining a premises for manufacturing or distributing a
controlled substance, id. ¶ 42. He received a
two-level and a one-level adjustment for acceptance of
responsibility. Id., ¶¶ 48, 49. Based on a
total offense level of 35 and a criminal history category of
VI, movant's guideline range was 292 to 365 months.
Id. ¶ 118. Because the statutorily-authorized
maximum sentence was 20 years, the guideline range became 240
months. Id. Movant filed objections to the PSR. CR
Doc. 637. He also filed a motion for sentence variance,
arguing that he should not be held responsible for the gun
possessed by a co-conspirator, and that he should not be
responsible for maintaining a drug premises as he had no
possessory interest in the residence where he stayed with his
co-conspirator girlfriend. CR Doc. 338. The probation officer
prepared an addendum to the PSR. CR Doc. 372.
21, 2016, the court conducted a hearing to consider the
calculation of drug quantities for which movant and others
should be held responsible. CR Doc. 469; CR Doc. 516. The
probation officer filed a second addendum to the PSR
reflecting that further drug testing did not result in any
change to movant's guideline computations. CR Doc. 581.
October 7, 2016, movant was sentenced to a term of
imprisonment of 240 months. CR Doc. 633. The court heard
evidence regarding the objection to the lack of reduction for
playing a minor role and regarding and the request for
variance, finding them to be without merit. CR Doc. 664. The
court noted that movant should be denied acceptance of
responsibility and should receive an enhancement for
obstruction of justice based on his false testimony at
sentencing, but it would not make any difference since his
sentence was subject to the statutory cap of 240 months.
Id. at 38-39.
appealed. CR Doc. 641. His attorney filed an
Anders brief and the appeal was dismissed as
frivolous. United States v. Melanson, 708 P.
App'x 213 (5th Cir. 2018).
Ground of the Motion
asserts one ground in support of his motion. He says that his
plea is invalid as a result of ineffective assistance of
counsel. Doc. 1 at PageID 4. In his supporting memorandum,
movant purports to assert additional grounds of ineffective
assistance of counsel for failure to make certain objections
to the PSR. Doc. 2.
Standards of Review
28 U.S.C. § 2255
conviction and exhaustion, or waiver, of any right to appeal,
courts are entitled to presume that a defendant stands fairly
and finally convicted. United States v. Frady, 456
U.S. 152, 164-165 (1982); United States v. Shaid,
937 F.2d 228, 231-32 (5th Cir. 1991). A defendant can
challenge his conviction or sentence after it is presumed
final on issues of constitutional or jurisdictional magnitude
only, and may not raise an issue for the first time on
collateral review without ...