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United States v. Duran

United States Court of Appeals, Fifth Circuit

August 8, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
MARIO DURAN, Defendant-Appellant

          Appeal from the United States District Court for the Western District of Louisiana

          Before ELROD, GRAVES, and OLDHAM, Circuit Judges.

          JAMES E. GRAVES, JR., CIRCUIT JUDGE

         Federal Prisoner Mario Duran filed the instant 28 U.S.C. § 2255 motion to vacate, correct, or set aside his prison sentence of 120 months and five years of supervised release following his conviction for one count of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1). In his § 2255 motion, Duran argues that his counsel was ineffective for disregarding Duran's instruction to file a direct appeal. Without holding an evidentiary hearing, the district court found Duran's motion untimely and alternatively found that his ineffective assistance of counsel claim lacked merit. We agree that Duran's § 2255 motion is untimely. Therefore, we affirm.

         I.

         A.

         While investigating an unrelated matter, Acadia Parish sheriff's deputies discovered Duran in a parking lot with two minor age girls in his vehicle. Duran claimed the girls were the daughters of his friend, and that he was transporting them to Laredo, Texas. After hearing his response, officers conducted a search of Duran's vehicle with his consent. Officers discovered three cell phones during the search. Then the officers interviewed the girls, who claimed that they had never met Duran before that day. Their uncle had taken them to Alabama to meet Duran. Duran was supposed to take them to Laredo to meet their deported father. The girls also told officers that Duran had made sexual remarks to them.

         Duran later admitted to talking to one of the girls about her breasts and virginity. The girl was 15-years old at the time. Duran denied touching either girl. He later admitted to having an image of another young girl on one of the cell phones and agreed to show the image to an officer. The officer discovered several images of an 11-year old girl on the phone, who Duran claims is his goddaughter. In one image, the girl was wearing only panties, and the camera was focused on her pubic area. Another image was a close-up of the girl's gen-italia. Duran admitted that he had taken the picture of his goddaughter, that she was almost 12-years old at the time, and that he had transported the images from Mexico to Alabama sometime in February or March 2014.

         A few months later, Homeland Security agents executed a federal arrest warrant at Duran's home, where they spoke with his wife. She identified the girl on the pictures as Duran's goddaughter and said that the pictures were taken when the girl was 9 and 11-years old, respectively. Duran's wife told the Homeland Security agents the girl was almost 12-years old, and that she lived in Veracruz, Mexico. Later, Duran denied that he personally took the pictures.

         Duran asserted that he accidentally switched phones with his goddaughter's father during one of Duran's many trips to Mexico, and that the pictures belonged to the girl's father. Duran stated that he had never taken pictures of anyone.

         Months later, to assist in the investigation, agents in Mexico's Attorney General's Office located and interviewed the girl depicted in the photos. The girl told the Mexican officers that Duran was her uncle, and that he would frequently bring her and her cousins chocolate bars and clothes, including underwear. She stated that in March 2014, while Duran was visiting the girl's mother, Duran asked her and her 10-year old cousins to take off their clothes so he could take a picture of them naked. The children initially refused, and Duran responded by pointing a gun at his goddaughter. She told Duran she would take off her clothes as long as he did not make her younger cousins take off their clothes. The girl removed her clothes from the waist down.

         She further explained that Duran attempted to touch her vagina but one of her cousins slapped his hand away. Then Duran raised her leg and took a picture of her vagina with her grandfather's cell phone. He then touched her buttocks and told the girls not to tell anyone what had happened. She added that, roughly a month later, Duran gave her a plasma television. He had promised one to her as a gift.

         B.

         Duran pleaded guilty to one count of transportation of child pornography. His plea agreement did not include a waiver of any appellate rights. The district court calculated the advisory Sentencing Guidelines range to be 188-235 months of imprisonment. The district court sentenced Duran to 120 months' imprisonment followed by five years of supervised ...


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