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United States v. Prieto

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

November 5, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ELIO HERRERA PRIETO, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE

         Defendant/Movant Elio Herrera Prieto filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and memorandum in support (D.E. 143, 159), to which the United States of America (the “Government”) has responded (D.E. 171).[1]

         I. BACKGROUND

         Border Patrol agents tracking a group of men through the brush near the Texas-Mexico border found Movant and five others near several makeshift backpacks containing a total of 100.27 kilograms of marijuana. The men told investigating agents that they were being smuggled into the United States by four guides who had instructed them to carry the marijuana as they travelled through the brush; however, the guides escaped apprehension. Movant told agents that he was a Mexican citizen who had paid smugglers to transport him into the United States and that he had helped carry the marijuana through the brush for approximately 10 minutes. Some of the other men told agents that Movant did not help carry the marijuana. Instead, he rode in the cab of the truck while they were being smuggled and always walked in front of the group while they were walking through the brush with the marijuana. One of the men reported that he believed Movant was the leader because Movant had a compass for navigating and was going to call someone to pick up the men and the marijuana when they reached their destination.

         All six men were charged with conspiracy to possess with intent to distribute more than 100 kilograms of marijuana (Count 1) and possession with intent to distribute more than 100 kilograms of marijuana (Count 2). On January 22, 2018, Movant pled guilty to possession with intent to distribute approximately 100.27 kilograms of marijuana (Count 2), in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). In exchange for his guilty plea, the Government agreed to dismiss Count 1 and recommend that Movant receive maximum credit for acceptance of responsibility and a sentence within the applicable guideline range. As part of his written Plea Agreement, Movant waived his right to appeal his conviction or sentence or to file a motion under 28 U.S.C. § 2255, except to raise a claim of ineffective assistance of counsel.

         The Presentence Investigation Report (PSR, D.E. 94) assigned Movant a base offense level of 24 based on drug quantity. Three levels were added under U.S.S.G. § 3B1.1(b) because Movant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive. After a three-level adjustment for acceptance of responsibility, the resulting advisory Guideline range for Level 24, Criminal History Category I, was 51-63 months' imprisonment; however, Movant was subject to a mandatory minimum sentence of 5 years under 21 U.S.C. § 841(b)(1)(B). Counsel did not file any objections to the PSR, which the Court adopted without change.

         Movant was sentenced to a mandatory minimum 60 months' imprisonment, to be followed by 4 years' supervised release. Judgment was entered April 24, 2018. Movant did not appeal. He filed the present motion on February 25, 2019. It is timely.

         II. MOVANT'S ALLEGATIONS

         Movant's § 2255 motion raises the following claims:

1. Trial counsel was constitutionally ineffective because she failed to raise any defenses, ignored exculpatory evidence, and failed to object to the three-level sentencing enhancement for being an organizer/leader;
2. Movant's drug quantity determination was incorrect and resulted in a base offense level that overstated the seriousness of the offense;
3. Movant should have been granted safety valve;
4. Movant should have received a minor role reduction because he was merely a mule who was taken advantage of and underpaid by his coconspirators; and
5. Movant's sentence was unreasonable because the Court failed to consider all arguments in support of a downward variance or adequately explain ...

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