United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AMD ORDER
McBRYDE UNITED STATES DISTRICT JUDGE.
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.
contained in the record of the underlying criminal case
discloses the following:
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. 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.
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.
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.
of the Motion
raises four grounds in support of his motion, worded as
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 ...