Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cazarez v. United States

United States District Court, E.D. Tennessee, Greeneville

February 16, 2017

ARNOLDO AYALA GUEVARA CAZAREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         Arnoldo Guevara Cazarez (“petitioner”) is a federal prisoner due to his conviction and sentence in this Court for conspiring to distribute, and to possess with the intent to distribute, 500 or more grams of a substance containing a detectable amount of methamphetamine. He has filed a motion pursuant to 28 U.S.C. §2255 to vacate, set aside, or correct his sentence, [Doc. 99], [1]which he has amended, [Doc. 113]. The United States has responded in opposition to the motion, [Doc. 103], and petitioner has replied, [Doc. 112]. The United States has not been directed to respond to the amended motion and the Court finds a response unnecessary. For the reasons discussed in this memorandum, the motion is DENIED.

         GENERAL BACKGROUND

         Petitioner was charged in an indictment with conspiring to distribute and to possess with the intent to distribute 500 or more grams of a substance containing a detectable amount of methamphetamine (Count 1); possessing with the intent to distribute 500 or more grams of a substance containing a detectable amount of methamphetamine (Count 2); possessing a firearm in furtherance of the offenses charged in counts one and two (Count 3); being an illegal alien in possession of a firearm (Count 4); being an illegal alien in possession of ammunition (Count 5); and with illegally reentering the United States after having been previously deported (Count 8).[2]Attorney Joseph McAfee was appointed to represent petitioner.[3]

         Ultimately, petitioner entered into a written plea agreement with the United States[4] in which he agreed to plead guilty to Count One of the indictment, conspiring to distribute and to possess with the intent to distribute 500 or more grams of a substance containing a detectable amount of methamphetamine. The plea agreement recited that petitioner faced a sentence of a mandatory minimum of ten years' imprisonment up to a possible maximum of life, 21 U.S.C. §841(b)(1)(A). Petitioner also waived his right to appeal his conviction or sentence except for a sentence imposed above the greater of the mandatory minimum sentence or his guideline range, and he also waived his right to file a § 2255 motion except for claims of ineffective assistance of counsel or prosecutorial misconduct unknown to him at the time of entry of judgment. For its part, the United States agreed to dismiss the other counts against petitioner, and that it would not oppose a total reduction of three levels of his Offense Level.

         The Presentence Report established petitioner's Offense Level at 36, which included a three-level enhancement under USSG § 3B1.1(b) for exercising a managerial or supervisory role in the conspiracy.[5] Petitioner filed an objection to that enhancement, which the court overruled after a hearing.[6] His guideline range was 210 to 262 months.[7] After finding, over petitioner's objections, that petitioner acted in a managerial or supervisory role in the conspiracy, the Court sentenced petitioner to 235 months' imprisonment, precisely within the middle of his guideline range.

         Petitioner appealed to the Sixth Circuit Court of Appeals, arguing that his sentence was improperly enhanced based on what he maintains was this Court's erroneous finding that he exercised a supervisory role in the conspiracy. Although noting that petitioner waived his right to a direct appeal, the court of appeals reviewed the record and determined that this court “properly found that [petitioner] was a manager or supervisor of the conspiracy within the meaning of [United States Sentencing Guideline] §3B1.1(b).”[8] That Court affirmed the judgment and sentence of this Court, finding that plaintiff's guilty plea was valid, and that his sentence was procedurally and substantively reasonable.[9]

         PETITIONER'S MOTION

         In petitioner's first, or original, motion and accompanying memorandum, [Docs. 99 and 100], he makes two claims, both of which accuse trial counsel of providing unconstitutionally ineffective assistance. First, he says that his attorney told him that he confronted at most a sentence of between 10 and 15 years, and that the prosecutor would not seek an enhancement based on petitioner's supervisory role. Petitioner claims that based on these representations, he elected to plead guilty. Second, petitioner claims that he pleaded guilty only because he was misled by his lawyer's assurances that his sentence would not be enhanced, and therefore his guilty plea was not knowing and voluntary.

         In his amended motion, [Doc. 107], petitioner argues that trial counsel was unconstitutionally ineffective for failing to object because his Offense Level was improperly based on a weight of actual methamphetamine rather than upon a mixture which contained methamphetamine.

         LEGAL STANDARD

         This Court must vacate and set aside petitioner's sentence if it finds that “the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . .” 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.

         When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).

         To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non- constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under §2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal.

         United States v. Frady, 456 U.S. 152 (1982).

         When a § 2255 Petitioner claims he was denied his sixth amendment right to effective assistance of counsel, it is noted that an attorney is presumed to have provided effective assistance, and the Petitioner bears the burden of showing that the attorney did not, Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003). Petitioner must prove that specific acts or omissions by his attorney were deficient and that the attorney failed to provide “reasonably effective assistance, ” Strickland v. Washington, 466 U.S. 668, 687 (1987), which is measured by “prevailing professional norms, ” Rompilla v. Beard, 545 U.S. 374, 380 (2005). If Petitioner crosses this evidentiary hurdle, he must then show “a reasonable probability that, but for [the attorney's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. In other words, he must show that he was prejudiced by the attorney's deficient representation:

To succeed on an ineffective assistance claim, a defendant must show that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [A court's ] review of counsel's performance is “highly deferential.” Id. at 689, 104 S.Ct. 2052. [The court must] “judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690, 104 S.Ct. 2052. The defendant “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. To establish “prejudice, ” a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “The likelihood of a different result must be substantial, not just conceivable.” H ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.