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Carbajal v. United States

United States District Court, W.D. Texas, El Paso Division

July 31, 2019

MANUEL ARTURO CARBAJAL, Reg. No. 12654-051, Movant
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          DAVID C. GUADERRAMA UNITED STATES DISTRICT JUGDE.

         Presently before the Court is Movant Manuel Arturo Carbajal's (hereinafter "Carbajal") pro se "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence" (ECF No. 402)[1] (hereinafter, "Motion to Vacate"), as amended by his "Petition to Amend/Supplement Brief (ECF No. 407) (hereinafter, "Supplemental Brief). For the reasons that follow, the Court DENIES his motion.

         I. BACKGROUND

         In June 2014, a federal grand jury sitting in the Western District of Texas, El Paso Division, returned a five-count indictment (ECF No. 1) against Carbajal and other individuals. Thereafter, a federal grand jury returned a Superseding Indictment, which charges Carbajal with three criminal counts. Specifically, Count One charges him with conspiracy to possess with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(viii). See Superseding Indictment at 1-2, ECF No. 379.

         Subsequently, Carbajal and the Government executed a plea agreement. Carbajal agreed to plead guilty to Count One of the Superseding Indictment. Plea Agreement at 1, ECF No. 274.

         In exchange, the Government agreed to move for dismissal of the remaining counts against him and its Notice of Penalty Enhancement under 28 U.S.C. § 851, which was then pending. Id. The Government agreed not to oppose the award of a two-level adjustment for acceptance of responsibility, and if the adjustment is granted, further agreed to move for the award of a third level for same. Id. at 3.

         In June 2015, pursuant to the plea agreement, Carbajal pled guilty to Count One before United States Magistrate Judge Anne T. Berton. Tr. Plea Hr'g at 16:19-23. The magistrate judge found, among others, that there was a factual basis to support his plea and that his plea was made voluntarily with an understanding of the charge and maximum penalty in his case. Id. at 20:16-21:01; see also Report & Recommendation, ECF No. 277. The undersigned judge accepted Carbajal's plea of guilty. See Order, ECF No. 284. The case was referred to the United States Probation, with instructions to prepare a Presentence Investigative Report ("PSR") for purposes of sentencing hearing. See ECF No. 276.

         The PSR scored Carbajal at a base offense level of 32 pursuant to § 2D 1.1 (a) of the 2014 Sentencing Guidelines. PSR ¶ 49. After increasing the offense level by 2 levels pursuant to § 2D1.1(b)(5), another 2 levels pursuant to § 2D 1.1 (b)(5)(C), and 4 levels pursuant to § 3Bl.l(a), the PSR arrived at an adjusted offense level of 40. Id. ¶¶ 50, 51, 53, 54. For acceptance of responsibility, a 3-level decrease of the offense level was applied pursuant to § 3El.l(a)-(b), id. ¶¶ 57-58, resulting in a total offense level of 37, id. ¶ 59. This offense level, combined with a criminal history category of IV, id.66, led to an advisory Guidelines sentencing range of 292 to 365 months, id. ¶ 101.

         At the sentencing hearing held on April 27, 2017, Carbajal was present along with his counsel John L. Williams. In light of his guilty plea, the Court found him guilty of the offense charged in Count One of the Superseding Indictment. Tr. Sentencing Hr'g at 4:9-15. Pursuant to the plea agreement, the Government moved to dismiss the remaining counts against Carbajal and the Notice of Penalty Enhancement, id. at 7:10-13, which the Court granted, id. at 12:20-22.

         To assess Carbajal's sentence, the Court adopted the PSR's recommendations as the starting point: a total offense level of 37 and criminal history category of IV. Id. at 4:21-5:15. After ruling on the parties' objections and motions, the Court arrived at a total offense level of 34 and criminal history category score of IV-which together suggested a Guidelines sentencing range of 210 to 262 months. Id. at 5:15-23; 6:17-18. The Court sentenced Carbajal to 240 months' imprisonment, followed by 5 years of supervised release. Id. at 10:16-11:05. The Court found that the 240-month imprisonment was sufficient and appropriate, but not greater than required in order to accomplish the goals of 18 U.SC. § 3553(a)(2). Id.

         In accordance with the Court's rulings at the sentencing hearing, a judgment (ECF No. • 370) was issued on May 12, 2017. Carbajal appealed the judgment and sentence. See Notice of Appeal, ECF No. 368. On April 11, 2018, the Fifth Circuit granted the Government's motion to dismiss the appeal and on May 3, 2018, issued its judgment as mandate (ECF No. 401). Carbajal did not file a writ of certiorari with the Supreme Court.

         On June 11, 2018, Carbajal filed the instant § 2255 motion and subsequently, filed the Supplemental Brief. Therein, he claims that the PSR and/or the Court committed errors in calculating the applicable guideline range and his counsel was ineffective for not objecting to the alleged errors. E.g., Mot. to Vacate at 5, 7-8, ECF No. 402. In September 2018, the Government filed its Response (ECF No. 410) to the motion.

         II. STANDARD

         A. 28 U.S.C. § 2255

         After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that the defendant stands fairly and finally convicted." United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Accordingly, "[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). Typically, before a court will grant relief pursuant to § 2255, Petitioner must establish: "(1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack." United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995).

         Moreover, a collateral challenge to a conviction or sentence should not serve as a substitute for a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). When raising issues of jurisdictional or constitutional magnitude for the first time in a motion seeking collateral relief, a Petitioner must either (1) demonstrate "cause" for not raising the issue on direct appeal and "actual prejudice" resulting from the error, or (2) show that he is "actually innocent" of the crime for which he was convicted. United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999). The cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard ... applied on direct appeal." Gaudet, 81 F.3d at 589. If the Petitioner does not meet either burden, then he is procedurally barred from attacking his conviction or sentence. United States v. Drobny, 955 F.2d 990, 994-95 (5th Cir. 1992). This procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel. See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).

         B. Ineffective Assistance of Counsel

         The United States Constitution's Sixth Amendment guarantees an accused the right to the assistance of counsel for his defense in all criminal prosecutions. U.S. Const, amend. VI. Moreover, "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). "[I]neffective assistance claims are ordinarily brought for the first time on collateral review because of the difficulty of compiling an adequate record by the time of direct appeal." Gaudet, 81 F.3d at 589 n.5. To merit relief on an ineffective assistance of counsel claim, a movant must demonstrate both (1) that his "counsel's performance was deficient," and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing the Strickland standard of review). A failure to establish either prong of this test requires a finding that counsel's performance was constitutionally effective. See Strickland, 466 U.S. at 687 ("Unless a defendant makes both showings, it cannot be said that the conviction or . . . sentence resulted from a breakdown in the adversary process that renders the result unreliable."); Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim."); Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) ("A court need not address both components of the inquiry if the defendant makes an insufficient showing on one.").

         The test's performance prong centers on whether counsel's assistance was reasonable, considering all the circumstances at the time of counsel's conduct. See Strickland, 466 U.S. at 688 ("The proper measure of attorney performance remains simply reasonableness under prevailing professional norms."). In order to obtain relief, a movant must establish "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In assessing whether a particular counsel's performance was constitutionally deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana,350 U.S. 91, 101 (1955)). A deficiency in counsel's performance, even if professionally unreasonable, does not equal ineffective assistance of counsel; the movant must also demonstrate actual prejudice. See Id. at 691-92 ("The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."). The test's prejudice prong requires the movant to "show that there is a reasonable ...


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