United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBryde, United States District Judge.
for consideration the motion of Noe Lujano Jaimes, movant,
under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence. The court, having considered the motion, the
memorandum in support (which is attached to the motion and
titled "Attachments to Habeas Petition"), the
response, and pertinent parts of the record in No.
4:17-CR-223-A, styled "United States of America v. Noe
Lujano-Jaimes," has concluded that the motion should be
contained in the record of the underlying criminal case
discloses the following:
October 18, 2017, movant was named in a one-count indictment
charging him with possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and (b) (1) (C), CR Doc. 8. On December 13, 2017, movant
appeared before the court with the intent to enter a plea of
guilty to the offense charged without benefit of a plea
agreement. CR Doc. 19. Movant and his attorney signed a
factual resume setting forth the elements of the offense, the
maximum penalty movant faced, and the stipulated facts
supporting movant's guilt. CR Doc. 21. They also signed a
consent to administration of guilty plea and Fed. R. Crim. P.
11 allocution by the United States Magistrate Judge. CR Doc.
20. Under oath, movant stated that no one had made any
promise or assurance of any kind to induce him to plead
guilty. Further, movant stated his understanding that the
guideline range was advisory and was one of many sentencing
factors the court could consider; that the guideline range
could not be calculated until the presentence report
("PSR") was prepared; the court could impose a
sentence more severe than the sentence recommended by the
advisory guidelines and movant would be bound by his>
guilty plea; movant was satisfied with his counsel and had no
complaints regarding his representation; and, movant and
counsel had reviewed the factual resume and movant understood
the meaning of everything in it and the stipulated facts were
true. On that basis, the Magistrate Judge recommended that
the plea of guilty be accepted by the undersigned. CR Doc.
22. No. objections were made to the recommendation, which the
undersigned accepted. CR Doc. 27.
probation officer prepared the PSR, which reflected that
movant's base offense level was 38. CR Doc. 35, ¶
34. He received two-level enhancements for possession of a
firearm, importation from Mexico, and maintaining a premises
for manufacturing or distributing a controlled substance.
Id. ¶¶ 35-37. He received a two-level and
a one-level reduction for acceptance of responsibility.
Id. ¶¶ 43-44. Based on his total offense
level of 41 and a criminal history category of III,
movant's guideline imprisonment range was 360 months to
life. However, the statutorily authorized maximum sentence
was 12 0 months, so that became the guideline sentence.
Id. ¶ 92. Movant submitted objections to the
PSR and the probation officer prepared an addendum thereto.
CR Doc. 38. The probation officer rejected the objections to
the two-level enhancements for importation and maintaining a
drug premises as well as the objection as to calculation of
the offense level. Id. The addendum corrected the
PSR to reflect that the statutory guideline sentence was 240
months. Id. at 3.
11, 2018, movant appeared for sentencing. He persisted in his
objections, which the court overruled. CR Doc. 50. The court
noted that even without the increases for importation and
drug premises, a sentence above 240 months would have been
appropriate, but the court was limited by the statutory
maximum of 240 months to which it sentenced movant.
Id. at 18-19; CR Doc. 45. Movant filed a notice of
appeal, CR Doc. 47, but failed to prosecute it. CR Doc. 48.
of the Motion
asserts four grounds in support of his motion, all alleging
ineffective assistance of counsel. They are worded as
GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL/FAILURE TO
1 at PageID 4.
GROUND TWO: INEFFECTIVE ASSISTANCE OF COUNSEL/FAILURE TO
OBJECT TO THE ...