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United States v. Arce-Ordones

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

April 24, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
PEDRO ARCE-ORDONES, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE.

         Defendant/Movant 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 respond.

         I. BACKGROUND

         On 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' imprisonment.

         Movant 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 appropriate area.
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 assessment.

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.

         Movant 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.

         Movant filed the current § 2255 motion on May 22, 2018. It is timely.

         II. MOVANT'S ALLEGATIONS

         Movant's § 2255 motion raises two grounds for relief:

A. Trial counsel was ineffective for incorrectly calculating Movant's advisory Guideline range under the proposed ...

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