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United States v. Barajas

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

November 6, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
SALVADOR BARAJAS, JR., Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE

         Defendant/Movant Salvador Barajas, Jr., filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and memorandum in support (D.E. 32, 33), to which the United States of America (the “Government”) responded (D.E. 39).[1]

         I. BACKGROUND

         On February 1, 2017, Movant entered the inspection lane of the U.S. Border Patrol checkpoint near Falfurrias, Texas. After a trained drug detection dog alerted to Movant's vehicle, agents asked him for permission to search for drugs. Movant consented to the search of his truck and pulled into the secondary inspection area. The search uncovered 32 bundles of methamphetamine inside the gas tank of Movant's truck. Movant was arrested and charged with possession with intent to distribute more than 500 grams (approximately 31.6 kilograms) of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

         Movant appeared before the Court on April 17, 2017, and entered a plea of guilty without a written plea agreement. The Court accepted Movant's plea and ordered the Probation Office to prepare a Presentence Investigation Report (PSR, D.E. 12). The PSR assigned Movant a base offense level of 38 based on 30.43 kilograms of 97% pure methamphetamine. After a three-level adjustment for acceptance of responsibility, the resulting advisory guideline range for Level 35, Criminal History Category III, was 210-262 months. Defense counsel filed written objections to the PSR, arguing for a two-level reduction under U.S.S.G. § 3B1.2(b) and a four-level reduction under U.S.S.G. § 2D1.1(a)(5), based on Movant's minor role in the offense.

         At sentencing, defense counsel argued for a minor role adjustment and for the mandatory minimum sentence of 120 months because Movant was a family man, he had tried to cooperate with the Government, and his criminal history showed that he had a substance abuse problem, not that he was a violent criminal. The Court found Movant did not qualify for a minor role adjustment but ultimately varied downward from the Guidelines and imposed a sentence of 180 months' imprisonment, to be followed by 5 years' supervised release.

         Judgment was entered September 25, 2019. Movant appealed, claiming the factual basis for his plea was inadequate because it did not establish that he knew the type and quantity of the controlled substance involved in the offense. United States v. Barajas, 714 Fed. App'x 478, 479 (5th Cir. 2018). The Fifth Circuit affirmed this Court's judgment after Movant “correctly” conceded that the issue was foreclosed by United States v. Betancourt, 586 F.3d 303 (5th Cir. 2009). Id. Movant then filed a petition for a writ certiorari with the United States Supreme Court. His conviction became final on April 23, 2018, when the Supreme Court denied certiorari. See Clay v. United States, 537 U.S. 522, 527 (2003).

         Movant filed the current motion under 28 U.S.C. § 2255 on January 30, 2019. It is timely.

         II. MOVANT'S ALLEGATIONS

         Movant's § 2255 motion raises a plethora of claims:

         A. Trial counsel was constitutionally ineffective for failing to move to suppress evidence of the methamphetamine before Movant pled guilty.

         B. Trial counsel was constitutionally ineffective in relation to Movant's guilty plea because she:

1. Failed to object to an error in the Sentence Data Sheet;
2. Failed to adequately explain the nature of the charge, that the crime required knowledge or intent, and how the weight of methamphetamine would impact Movant's sentence;
3. Led Movant to believe he would receive a sentence “in the neighborhood of 120-months;”
4. Instructed Movant to express understanding and agreement to the Court's questions when he did not understand or agree; and 5. Failed to adequately communicate with Movant.

         C. Trial counsel was ineffective in relation to sentencing because she failed to:

1. Zealously advocate for a lower sentence;
2. Object to overstated and inaccurate criminal ...

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