United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.
Victor Hugo Moreno-Ontiveros, a federal prisoner, filed a
pro se motion to vacate, set-aside, or correct
sentence under 28 U.S.C. § 2255. The district court
referred the resulting civil action to the United States
magistrate judge pursuant to 28 U.S.C. § 636(b) and a
standing order of reference. For the following reasons, the
§ 2255 motion should be denied.
pleaded guilty to use of a cellphone in causing or
facilitating the commission of felonies under the Controlled
Substances Act, in violation of 21 U.S.C. §§ 843(b)
and (d)(1), and the district court sentenced him to 41 months
in prison. The Fifth Circuit Court of Appeals dismissed his
appeal as frivolous. United States v.
Moreno-Ontiveros, 707 Fed.Appx. 249 (5th Cir. 2017).
§ 2255 motion, Movant argues:
guilty plea was involuntary;
received ineffective assistance of counsel when his trial
counsel failed to interview witnesses, raise defenses,
consult with him, negotiate a plea agreement that was
beneficial to him, provide exculpatory evidence, present
mitigating evidence, object to the drug quantity, and raise
the defense of entrapment;
trial court erred when it:
(a) failed to order that Movant attend a drug rehabilitation
(b) allowed testimony from certain government witnesses even
though the government did not provide proper notice of this
(c) imposed an obstruction enhancement;
(d) improperly admitted cocaine evidence;
(e) failed to declare a mistrial when the government
introduced evidence of other offenses;
government breached the plea agreement when it objected to
the finding in the pre-sentence report (“PSR”)
that Movant could not pay a fine;
conviction is invalid because the government entrapped him;
evidence was insufficient to support the conviction.
2013, the FBI received information from a confidential
informant (“CS-1”) that a person known as
“Chuy” distributed multi-kilogram quantities of
cocaine in the Dallas, Texas, area. (ECF No. 41 at ¶ 9,
No. 3:16-cr-00171-D-2.) Agents determined that Chuy was
Movant's co-defendant Felix Cervantes. (Id.)
Agents also received information from a second confidential
informant (“CS-2”) that Movant was
Cervantes's source of supply. (Id. at ¶
agents obtained a warrant to wiretap Cervantes's phone.
(Id. at ¶ 11.) Agents also arranged several
controlled purchases of cocaine from Cervantes. For example,
on May 30, 2013, agents used CS-1 to arrange a purchase of
cocaine from Cervantes at a ranch in Dallas. (Id. at
¶ 12.) When CS-1 arrived at the ranch, Cervantes
obtained a bag of cocaine and provided it to CS-1.
(Id.) Forensic testing confirmed the drug was
cocaine hydrochloride with a net weight of 25.6 grams and
purity of 24.9 percent. (Id.) Later, on June 18,
2013, agents arranged a second purchase from Cervantes by
CS-1. (Id. at ¶ 13.) Forensic testing showed
the net weight of the cocaine was 108.2 grams with a purity
of 27.3 percent. (Id.) On ...