United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION & ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE
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
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
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.
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
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).
filed the current motion under 28 U.S.C. § 2255 on
January 30, 2019. It is timely.
§ 2255 motion raises a plethora of claims:
Trial counsel was constitutionally ineffective for failing to
move to suppress evidence of the methamphetamine before
Movant pled guilty.
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.
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 ...