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Garibay v. United States

United States District Court, N.D. Texas, Fort Worth Division

July 23, 2019

RAYMUNDO GONZALEZ GARIBAY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE, UNITED STATES DISTRICT JUDGE

         Came on for consideration the motion of Raymundo Gonzalez Garibay, movant, under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered the motion, its supporting memorandum, the government's response, the reply, and pertinent parts of the record in No. 4:16-CR-049-A, styled "United States of America v. Raymundo Gonzalez Garibay," the court has concluded that the motion should be denied.

         I.

         Background

         Information contained in the record of the underlying criminal case discloses the following:

         On March 16, 2016, movant was named in a one-count indictment charging him with illegal reentry after deportation, in violation of 8 U.S.C. §§ 1326(a) and (b) (1)/(2) . CR Doc.[1] 1. On May 23, 2016, the jury returned a verdict of guilty against movant. CR Doc. 30. The probation officer prepared a presentence report ("PSR") reflecting that movant's base offense level was 8 and that a 12-level increase applied for movant's 1986 conviction of aggravated kidnapping, which did not receive any criminal history points. CR Doc. 32, ¶¶ 16, 17. Based on a total offense level of 20 and a criminal history category of V, movant's guideline imprisonment range was 63-78 months. Id. ¶ 64. Movant lodged objections, CR Doc. 34, and, with leave of court, a supplemental objection to the PSR. CR Doc. 44. The probation officer prepared an addendum to the PSR, CR Doc. 48.

         On September 23, 2016, movant was sentenced to a term of imprisonment of 78 months. CR Doc. 53. Movant appealed and his sentence was affirmed. United States v. Gonzalez, 698 Fed.Appx. 176 (5th Cir. 2017). His petition for writ of certiorari was denied. Gonzalez v. United States, 139 S.Ct. 53 (2018).

         II.

         Grounds of the Motion

         Movant asserts two grounds in support of his motion, worded as follows:

Ground One: The government violated movant's fifth amendment right to due process, and sixth amendment right to effective assistance, by concealing matters it was duty bound to disclose concerning the United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) enhancement; and, an 8 U.S.C.S. §§ 1326 (b) (1) (1) charge.
Ground Two: Movant was denied effective assistance of counsel in violation of the sixth amendment due to trial and appellate counsel's deficient performance that prejudiced the defense.

Doc.[2] 13 at PageID[3] 98 (restated at ...


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