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Heard v. United States

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

November 12, 2019

ALFREDO MALACHI HEARD, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE JUDGE

         Came on for consideration the motion of Alfredo Malachi Heard, movant, to set aside, vacate, or correct sentence under 28 U.S.C. § 2 2 55. The court, having considered the motion, the government's response, the record in the underlying criminal case, No. 4:15-CR-129-A, styled "United States v. Humberto Macedo, et al.," and applicable authorities, finds that the motion should be denied.

         I.

         Background

         The record in the underlying criminal case reflects the following:

         On December 9, 2015, movant was named, along with others, in one count of a three-count superseding indictment charging him with conspiracy to possess with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846. CR Doc.[1] 157. Movant was a fugitive for a period of time. CR Doc. 416. On January 13, 2017, movant appeared before the court with the intent to enter a plea of guilty to the offense charged with the benefit of a plea agreement. CR Doc. 449. 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. 451. They had earlier signed a plea agreement, which was presented to the court. CR Doc. 450. 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. .

         The probation officer prepared the PSR, which reflected that movant's base offense level was 34. CR Doc. 459, ¶ 33. He received two-level enhancements for possession of firearms, Id. at ¶ 34, importation from Mexico, id. at ¶ 35, and maintaining a drug premises, id. at ¶ 36. He received a two-level and a one-level reduction for acceptance of responsibility. Id. at ¶¶ 42, 43. Based on a total offense level of 37 and a criminal history category of IV, movant's guideline range was 2 92 to 3 65 months. Id. at ¶ 96. Movant filed objections, CR Doc. 485, and the probation officer prepared an addendum to the PSR rejecting the objections. CR Doc. 464.

         On May 12, 2017, the court sentenced movant to a term of imprisonment of 2 92 months. CR Doc. 4 76. Movant appealed, CR Doc. 483, and the judgment was affirmed. United States v. Heard, 891 F.3d 574 (5th Cir. 2018).

         II .

         Grounds of the Motion

         Movant raises three grounds in support of his motion, worded as follows:

GROUND ONE; Ineffective or deficient representation of defense counsel. Doc.[2] 1 at PageID[3] 4.
GROUND TWO: Constitutional rights violated. Id. at PageID 5.
GROUND THREE: Illegal sentence exceeding sentencing guidelines and 18 U.S.C. § 3553. Id. ...

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