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Conde v. United States

United States District Court, N.D. Texas, Fort Worth Division

October 21, 2019

CHRISTOPHER LOUIS CONDE, Movant,
v.
UNITED STATES OP AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of movant, Christopher Louis Conde, to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The court, having considered the motion, the government's response, the record, including the record in the underlying criminal case, No. 4:17-CR-057-A, styled "United States v. Johnny Flores, et al.," and applicable authorities, finds that the motion should be denied.

         I.

         Background

         Information contained in the underlying criminal case discloses the following:

         On April 12, 2017, movant was named in a one-count indictment charging him and a co-defendant 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. § 84 6. CR Doc.[1] 15. Movant absconded and a warrant was issued for his arrest. CR Doc. 37. Movant was arrested almost a year later. CR Doc. 74. On March 15, 2018, he was named in a one-count superseding information charging him with possession with intent to distribute a mixture and substance containing a detectable amount of methamphetamine. CR Doc. 78.

         On March 28, 2018, movant appeared before the court with the intent to enter a plea of guilty to the offense charged by the superseding information without benefit of a plea agreement. CR Doc. 81. 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. 84. They also signed a waiver of indictment. CR Doc. 83. 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. CR Doc. 112.

         The probation officer prepared the PSR, which reflected that movant's base offense level was 32. CR Doc. 88, ¶ 27. He received a two-level increase for importation of methamphetamine, id. ¶ 28, and a two-level increase for obstruction of justice, id. ¶ 31. Based on a total offense level of 36 and a criminal history-category of I, his guideline imprisonment range was 18 8 to 23 5 months. Id. ¶ 84. Movant filed objections, CR Doc. 90, a motion for downward departure based on U.S.S.G. 3B1.2, CR Doc. 91, and a motion for downward departure and/or variance pursuant to 18 U.S.C. § 3553 (a}, CR Doc. 92. The probation officer prepared an addendum to the PSR, CR Doc. 93, and movant again objected, CR Doc. 106. The probation officer prepared a second addendum to the PSR, recognizing that movant met the requirements for the safety valve, giving him an offense level of 34 and a guideline imprisonment range of 151 to 188 months. CR Doc. 99.

         On August 31, 2018, movant was sentenced to a term of imprisonment of 151 months. CR Doc. 104; CR Doc. 113. He did not appeal.

         II.

         Grounds of the Motion

         Movant asserts two grounds in support of his motion, worded as follows:

GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO AND AFTER CHANGE OF PLEA ...

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