United States District Court, W.D. Texas, El Paso Division
MANUEL ARTURO CARBAJAL, Reg. No. 12654-051, Movant
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA UNITED STATES DISTRICT JUGDE.
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) (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.
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.
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.
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.
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.
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.
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.
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. §
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.
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.
28 U.S.C. § 2255
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).
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).
Ineffective Assistance of Counsel
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.").
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