United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE.
Pedro Casanova Gomez filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. D.E.
Pending before the Court is the United States of
America's (the “Government”) Motion for
Judgment on the Record (D.E. 47), to which Movant has
responded (D.E. 48).
January 8, 2018, Movant drove a refrigerated tractor-trailer
into the Falfurrias Border Patrol Checkpoint for an
immigration inspection. After a service canine alerted to the
presence of contraband in Movant's trailer, Border Patrol
agents signaled him to the secondary inspection area. The
first thing agents discovered was that the trailer was
secured with a fake seal. They removed the fake seal and
inspected the trailer, where they discovered two undocumented
aliens hidden among a load of produce. The temperature inside
the trailer was 54 degrees, and agents had to remove a pallet
of produce with a forklift before they could extract the
aliens from the trailer. Once outside, the aliens told agents
they were in the United States illegally. The trailer's
original seal was located inside the tractor's cab.
Movant and his passengers were then arrested.
March 19, 2018, Movant pled guilty to transporting an
undocumented alien in violation of 8 U.S.C. § 1324
pursuant to a written Plea Agreement (D.E. 17). In return for
his guilty plea, Movant waived his right to appeal or file a
motion under 28 U.S.C. § 2255, except to raise a claim
of ineffective assistance of counsel. Movant testified at
rearraignment that he understood the waivers contained in the
Plea Agreement and had discussed them with counsel.
Presentence Investigation Report (PSR, D.E. 24) assigned
Movant a base offense level of 12. Six levels were added
under U.S.S.G. § 2L1(b)(6) because the offense involved
the reckless creation of a substantial risk of death or
serious bodily injury, and two levels were added under
U.S.S.G. § 3B1.3 because Movant used a “special
skill”-his commercial truck driver's license- to
facilitate the commission of the offense. Movant was given a
three-level adjustment for acceptance of responsibility. The
resulting advisory guideline range for Level 17, Criminal
History Category I, was 24-30 months' imprisonment.
Movant was sentenced to 26 months' imprisonment, 2
years' supervised release, and a $100 special assessment.
After pronouncing its sentence, the Court reminded Movant
that he had waived his right to appeal.
was entered June 25, 2018. Consistent with the provisions of
his Plea Agreement, Movant did not appeal. His conviction
became final on July 9, 2018, the last day on which he could
have filed a notice of appeal. He filed the current motion
under 28 U.S.C. § 2255 on December 17, 2018. It is
raises three claims alleging ineffective assistance of
A. Counsel failed to adequately consult with Movant regarding
his appellate rights or file a notice of appeal after Movant
instructed him to do so;
B. Counsel failed to object to the PSR's recommended
two-level enhancement under U.S.S.G. § 3B1.3 based on
Movant's use of his special skill as a commercial truck
driver in the commission of the offense; and
C. Counsel failed to object to the PSR's recommended
six-level enhancement under U.S.S.G. § 2L1(b)(6) because
the offense involved the reckless creation of a substantial
risk of death or serious bodily injury.
28 U.S.C. § 2255
are four cognizable grounds upon which a federal prisoner may
move to vacate, set aside, or correct his sentence: (1)
constitutional issues, (2) challenges to the district
court's jurisdiction to impose the sentence, (3)
challenges to the length of a sentence in excess of the
statutory maximum, and (4) claims that the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255; United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). “Relief 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.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
Ineffective Assistance of Counsel
ineffective assistance of counsel allegation presented in a
§ 2255 motion is properly analyzed under the two-prong
test set forth in Strickland v. Washington, 466 U.S.
668, 689 (1984). United States v. Willis, 273 F.3d
592, 598 (5th Cir. 2001). To prevail on a claim of
ineffective assistance of counsel, a movant must demonstrate
that his or her counsel's performance was both deficient
and prejudicial. Id. This means that a movant must
show that counsel's performance was outside the broad
range of what is considered reasonable assistance and that
this deficient performance led to an unfair and unreliable
conviction and sentence. United States v. Dovalina,
262 F.3d 472, 474-75 (5th Cir. 2001).
reviewing ineffectiveness claims, “judicial scrutiny of
counsel's performance must be highly deferential, ”
and every effort must be made to eliminate “the
distorting effects of hindsight.” Strickland,
466 U.S. at 689. An ineffective assistance claim focuses on
“counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's
conduct[, ]” because “[i]t is all too tempting
for a defendant to second-guess counsel's assistance
after conviction or adverse sentence.” Id. at
689-90. With regard to the prejudice requirement, a movant
must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.” Id.
at 694. “Failure to prove either deficient performance
or actual prejudice is fatal to an ineffective assistance
claim.” Carter v. Johnson, 131 F.3d 452, 463
(5th Cir. 1997). “A court need not address both
components of the inquiry if the defendant makes an
insufficient showing on one.” Armstead v.
Scott, 37 F.3d 202, 210 (5th Cir. 1994).
Failure to ...