United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
GONZALES RAMOS UNITED STATES DISTRICT JUDGE.
Dania Cardoza-Montes filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 (D.E.
260). Pending before the Court is the United States' (the
"Government") Motion for Judgment on the Record
(D.E. 271), to which Movant has responded (D.E. 277). For the
reasons stated herein, the Government's motion is
GRANTED, and Movant's § 2255 motion
2017, Movant and six other individuals were charged with
conspiracy to transport aliens in violation of 8 U.S.C.
§§ 1326(a)(1)(A)(ii), 1326(a)(1)(A)(v)(I), and
1326(a)(1)(B)(i). Movant pled guilty before a United States
Magistrate Judge pursuant to a written plea agreement. The
Court accepted Movant's guilty plea and adopted the
recommendation that she be found guilty.
Probation Office prepared a Presentence Investigation Report
(PSR, D.E. 164), which calculated Movant's base offense
level at 12. Nine levels were added because the conspiracy
involved more than 100 aliens; two levels were added because
Movant had sustained a prior conviction for conspiracy to
transport aliens; four levels were added because the
conspirators had transported two unaccompanied minors; four
levels were added because one of the aliens reported
observing coconspirator Mayra Guillen-Moreno brandishing a
firearm during the commission of the offense; and two levels
were added because the offense created a risk of death or
serious bodily injury. This resulted in an adjusted base
offense level of 33. Four more levels were then added because
Movant exercised a leadership role in the conspiracy. After
credit for acceptance of responsibility, Movant's total
offense level was 34. With a criminal history category of IV,
her advisory Guideline sentencing range was 210-262 months.
However, because the statutory maximum sentence was ten
years, her Guideline range defaulted to 120 months.
counsel filed written objections to the PSR. D.E. 140.
Specifically, counsel objected to Movant being held
accountable for 240 aliens and argued that she should only be
held accountable for 78 aliens. Counsel further objected to
the enhancement for brandishing a weapon because the firearm
was found in Guillen-Moreno's house and used for
self-protection, not in furtherance of the offense.
was held on January 10, 2018. At the start of the hearing,
the Assistant United States Attorney (AUSA) announced that
defense counsel had agreed to withdraw his objection to the
number of aliens and that the Government had no evidence to
support the weapon enhancement. The Court adopted the PSR as
modified regarding the weapon enhancement and calculated
Movant's advisory Guideline range to be the maximum
sentence of 120 months. The Government moved for a downward
departure pursuant to U.S.S.G. § 5K1.1 and requested one
third off the Guidelines. Defense counsel requested at least
50 percent off the Guidelines. The Court ultimately sentenced
Movant to 80 months' imprisonment, to be followed by 3
years' supervised release.
was entered January 12, 2018. Movant did not appeal. Her
conviction therefore became final on January 26, 2018.
See FED. R. APP. P. 4(b)(1)(A)(i). Movant filed the
present motion under § 2255 on August 6, 2018. It is
motion contains a laundry list of complaints concerning trial
counsel's alleged ineffectiveness, which fall into the
following general categories:
A. Counsel failed to investigate, interview, and/or prepare
alibi witnesses, potential corroborating witnesses,
prospective defense witnesses, prosecution witnesses, and
Movant herself, and he failed to listen to Movant's
version of the case;
B. Counsel was ineffective before sentencing because he
failed to obtain a plea agreement for which Movant could
receive a lower sentence for acceptance of responsibility and
failed to consult with Movant concerning her PSR; and
C. Counsel failed to object at sentencing to the enhancements
for brandishing a gun, the number of aliens involved in the
offense, and leadership role.