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United States v. Cardoza-Montes

United States District Court, S.D. Texas, Corpus Christi Division

April 23, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DANIA CARDOZA-MONTES, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE.

         Defendant/Movant 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 is DENIED.

         I. BACKGROUND

         In 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.

         The 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.

         Defense 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.

         Sentencing 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.

         Judgment 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 timely.

         II. MOVANT'S ALLEGATIONS

         Movant's 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.

         III. ...


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