United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE, UNITED STATES DISTRICT JUDGE
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.
contained in the record of the underlying criminal case
discloses the following:
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. 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.
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).
of the Motion
asserts two grounds in support of his motion, worded as
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)
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.
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