United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge
matter is before the Court on the Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (Filing No. 42) filed by the
Defendant, Gerardo Sanchez-Lopez. The Defendant also filed an
Application to Proceed without Prepaying of Fees and Costs
(Filing No. 43).
4(b) of the Rules Governing Section 2255 Proceedings for
the United States District Courts requires
initial review of a § 2255 motion, and describes the
initial review process:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
pleaded guilty to Count I of the Indictment charging him with
distribution of 5 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) & (b)(1). There
was no plea agreement in this case. His guideline range was
60-71 months based on a Total Offense Level of 23 and
placement in Criminal History Category III. The Court
sentenced Sanchez-Lopez to the mandatory minimum term of 60
months imprisonment, followed by 4 years of supervised
release. (Filing No. 38.) He did not file a direct appeal.
timely filed § 2255 motion, Sanchez-Lopez requests that
the district court grant him an evidentiary hearing in order
for legal counsel to move for a downward variance as a result
of his criminal history being substantially over-represented.
order to establish ineffective assistance of counsel,
Sanchez-Lopez must satisfy both prongs of the test
articulated by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). The
performance prong requires a showing that counsel performed
outside the wide range of reasonable professional assistance
and made errors so serious that counsel failed to function as
the kind of counsel guaranteed by the Sixth Amendment.
Id. at 687-89. The prejudice prong requires a movant
to demonstrate that seriously deficient performance of
counsel prejudiced the defense. Id. at 687.
Sanchez-Lopez's plea hearing, the undersigned questioned
him at length to ensure that his plea was knowing and
voluntary and supported by a factual basis, and that he was
satisfied with the advice and performance of counsel.
Sanchez-Lopez executed the Petition to Enter a Plea Guilty,
which stated he understood all the questions contained
therein, and that he was guilty of the crimes alleged in
Count I (Filing No. 30 at 12).
2255 motion, Sanchez-Lopez states that his attorney was
ineffective prior to sentencing because he did not object to
Presentence Investigation Report nor to the criminal history
calculation. Sanchez-Lopez also states that he " . . .
asked his attorney to, argue on his behalf, for a downward
departure on the grounds that his actual criminal history
determination over-represented the actual seriousness of his
criminal history, and his attorney failed to do so." At
the sentencing hearing, counsel did not object to the
Presentence Investigation Report, nor did counsel move for
any downward departure or variance. Any such motion would
have been denied as moot, due to the statutory mandatory
minimum term applicable in this case. Accordingly,
Sanchez-Lopez was sentenced at the lowest end of the
guideline range-the statutory mandatory minimum term of
complaints about his attorney's representation at the
sentencing hearing do not rise to a level showing that his
attorney performed outside the wide range of reasonable
professional assistance or made errors so serious that he
failed to function as the kind of counsel guaranteed by the
Sixth Amendment. United States v. Luke, 686 F.3d
600, 604 (8th Cir. 2012) ("There is a ‘strong
presumption that counsel's conduct falls within the wide
range of professionally reasonable assistance.'")
(quoting Strickland, 466 U.S. at 689). Nor has
Sanchez-Lopez demonstrated that he suffered any prejudice as
a result of any deficiencies in his counsel's
representation. To the contrary, the record is clear that
Sanchez-Lopez suffered no such prejudice.
has not satisfied either prong of the Strickland
test, and his ...