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Herrera v. United States

United States District Court, N.D. Texas, Dallas Division

October 1, 2019

JONATHON HERRERA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AMD ORDER

          JOHN McBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of Jonathon Herrera ("movant") under 2 8 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered the motion, the memorandum in support, the affidavits of his parents (submitted as two separate addenda to the motion), the government's motion to dismiss, the reply, and pertinent parts of the record in Case No. 4:16-CR-107-A, styled "United States of America v. Ramon Alejandro Reyes, et al.," finds that the government's motion to dismiss should be granted.

         I.

         Background

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

         On June 15, 2016, movant was named in a second superseding indictment charging him with conspiracy to possess with intent to distribute a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846. CR Doc.[1] 97. On December 14, 2016, movant was named in a third superseding indictment charging him in count one with conspiracy to possess with intent to distribute 5 0 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846, in count two with possession with intent to distribute a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(1)(1) and (b)(1)(C), and in count three with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924 (c) (1) (A) (i) . CR Doc. 2 08. Movant was tried by a jury and found guilty of count one and not guilty of counts two and three. CR Doc. 242.

         The probation officer prepared a presentence report (“PSR") reflecting that movant's base offense level was 38. CR Doc. 2 54, ¶ 37. He received a two-level enhancement for importation of methamphetamine and a two-level enhancement for obstruction of justice. Id. ¶¶ 38, 41. Based on a total offense level of 42 and a criminal history category of V, movant's guideline imprisonment range was 360 months to life. However, the statutorily-authorized maximum sentence was 4 0 years, so his guideline range became 3 60 to 480 months. Id. ¶ 119. Movant lodged objections, CR Doc. 280, and the probation officer prepared an addendum to the PSR rejecting the objections. CR Doc. 260.

         Movant was sentenced to a term of imprisonment of 48 0 months. CR Doc. 269. He appealed, CR Doc. 271, and his sentence was affirmed on February 22, 2018. United States v. Herrera, 713 Fed.Appx. 312 (5th Cir. 2018). Movant did not file a petition for writ of certiorari.

         II.

         Grounds of the Motion

         Movant raises four grounds in support of his motion, worded as follows:

Ground One: Through Prosecutorial Misconduct I was Denied Due Process of Law as Guaranteed by the 5th and 14th Amendments
Ground Two: Ineffective Assistance of Defense Counsel at both Trial and Appeal Violated my 6th Amendment Guarantee, and Due Process as ...

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