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United States v. Gomez

United States District Court, S.D. Texas, Corpus Christi Division

October 16, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
PEDRO CASANOVA GOMEZ, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE.

         Defendant/Movant Pedro Casanova Gomez filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. D.E. 38.[1] 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).

         I. BACKGROUND

         On 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.

         On 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.

         The 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.

         Judgment 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 timely.

         II. MOVANT'S ALLEGATIONS

         Movant raises three claims alleging ineffective assistance of counsel:

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.

         III. ANALYSIS

         A. 28 U.S.C. § 2255

         There 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).

         B. Ineffective Assistance of Counsel

         An 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).

         In 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).

         IV. ANALYSIS

         A. Failure to ...


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