United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE.
Pedro Arce-Ordones filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 (D.E.
33). Pending before the Court is the United States of
America's (the “Government”) Motion for
Judgment on the Record (D.E. 36), to which Movant did not
March 10, 2016, Movant pled guilty to illegal reentry in
violation of 8 U.S.C. §§ 1326(a) and 1326(b). The
Probation Officer used the 2015 version of the Guidelines
Manual to prepare Movant's Presentence Investigation
Report. Movant's base offense level was 8. He received a
16-level enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(vii) because he was previously deported
following a felony conviction for conspiracy to harbor aliens
in the Southern District of Texas-McAllen Division. After
credit for acceptance of responsibility, his total offense
level was 21. With a criminal history category of IV,
Movant's advisory Guideline range was 57-71 months'
was sentenced on June 21, 2016. Defense counsel noted at the
hearing that proposed amendments to the Sentencing Guidelines
were scheduled to be voted on in November 2016, and, if
adopted, would result in a lower advisory Guideline range of
30-37 months. 6/21/2016 Sent. Hrg. Tr., D.E. 18 at 3:22-4:4.
The Court responded that it would “certainly take that
into consideration” and noted that while it
“really believed” the amendments would be
adopted, “[t]here is no guarantee of that.”
Id. at 6:24-7:1. The Court then addressed Movant:
You got 23 months for this same offense just a couple of
years ago; and as [the prosecutor] Mr. Watt pointed out, you
came back right after serving a 15-month sentence [for
conspiracy to harbor illegal aliens]. You were deported,
turned around and came right back knowing that, you know, you
are breaking the law again. So I do believe you should get
more time for this offense than you got before; and in
considering the fact that the guidelines will more than
likely be amended, I would agree with [your counsel] Mr.
Jenkins in the sense that the 30 to 37 months is probably an
I am going to give you a year - basically, a year more than
you got before. I'm going to sentence you to 36 months.
That's a variance. But again, it's a year more for
the same offense. And who knows, I don't know where
you'll be on criminal history; but you'll probably
get more next time if you come back.
36 months, no supervision, no fine and a $100 special
Id. at 9:2-19. The Judgment, entered June 27, 2016,
reflects a downward variance from the advisory range of 57-71
months to the imposed sentence of 36 months.
appealed to the Fifth Circuit Court of Appeals.
Arce-Ordenas v. United States, U.S.C.A. No.
16-40934. His appellate counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which
he analyzed the record and issues, concluded that there were
no non-frivolous issues to appeal, and requested to withdraw
as attorney of record. The Fifth Circuit concurred and
affirmed Movant's judgment and conviction on June 20,
2017. He did not file a petition for certiorari. His
conviction therefore became final on September 18, 2017-90
days after the Fifth Circuit dismissed his appeal.
filed the current § 2255 motion on May 22, 2018. It is
§ 2255 motion raises two grounds for relief:
A. Trial counsel was ineffective for incorrectly calculating
Movant's advisory Guideline range under the proposed