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United States v. Garcia

United States District Court, D. Nebraska

October 31, 2016

RAMON GARCIA, Defendant.


          John M. Gerrard United States District Judge

         This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 509) filed by the defendant, Ramon Garcia. The motion was timely filed less than 1 year after the defendant's conviction became final. See § 2255(f). The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:

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.

         A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.


         The defendant was charged with a single count of conspiring to distribute 500 grams or more of a mixture containing methamphetamine, in violation of 21 U.S.C. § 841. Filing 6. He petitioned to plead guilty, acknowledging in his petition that he faced a mandatory minimum of 10 years' imprisonment, and up to a life sentence. Filing 57 at 6. And at his change of plea hearing, he was advised-and said that he understood-that he would be sentenced to at least 10 years' imprisonment and possible life imprisonment. Filing 105 at 5-6, 10. He was also advised regarding the sentencing guidelines, and that the sentencing court would consider "such things as how much drugs were involved" and "whether [he] played a leadership or managerial role in the sale of drugs[.]" Filing 105 at 10-11. Again, he said he understood. Filing 105 at 11. And he pled guilty to the charge against him. Filing 105 at 22.

         The presentence report found that the defendant was accountable for 34.5 kilograms of methamphetamine mixture, resulting in a base offense level of 38. Filing 174 at 10. The presentence report also found that the defendant was a manager or supervisor of the conspiracy, and had maintained a premises for the purpose of manufacturing or distributing a controlled substance, enhancing the offense level. Filing 174 at 10. The defendant, through counsel, objected to those aspects of the presentence report. Filing 140. As a result of that objection, the Court held a 2-day sentencing hearing, receiving several exhibits and hearing testimony from six witnesses. Filing 169; Filing 170; Filing 208. Based on the evidence, the Court overruled the defendant's objections. Filing 208 at 208-216. The Court found a total offense level of 40 and a guideline range of 292 to 365 months, and sentenced the defendant to 292 months' imprisonment. Filing 177 at 2; Filing 178 at 1.

         The defendant, through counsel, appealed to the Eighth Circuit. Filing 181. The Court of Appeals affirmed the Court's judgment. United States v. Garcia, 774 F.3d 472 (8th Cir. 2014).


         The defendant claims that his counsel was constitutionally ineffective. To establish a claim of ineffective assistance of counsel, the defendant must show that his attorney's performance was deficient and that this prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance can be shown by demonstrating that counsel's performance fell below an objective standard of reasonableness. Id. at 688. However, the Court's scrutiny of counsel's performance is highly deferential, because the Court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689.

         To satisfy the prejudice prong of Strickland, the defendant must show that counsel's error actually had an adverse effect on the defense. Gregg v. United States, 683 F.3d 941, 944 (8th Cir. 2012). The defendant must do more than show that the errors had some conceivable effect on the outcome of the proceeding. Id. Rather, the 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. Id. A "reasonable probability" is less than "more likely than not, " but it is more than a possibility; it must be sufficient to undermine confidence in the outcome of the case. Paul v. United States, 534 F.3d 832, 837 (8th Cir. 2008).

         In the context of a challenge to a guilty plea, the deficient performance and prejudice are demonstrated if the defendant can prove that (1) his counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-60 (1985); Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 (8th Cir. 2011).

         The defendant raises two separate ineffective assistance of counsel claims: he asserts that counsel was ineffective (1) in failing to object to the Court's drug quantity determination, and (2) failing to assert a policy-based motion for variance from the Sentencing ...

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