United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on Defendant Adan Preciado
Medina's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
(“§ 2255 motion"), ECF No. 30. Rule 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.
Defendant pled guilty to Count I of an Indictment charging
him with reentry of a removed alien after felony conviction,
in violation of 8 U.S.C. § 1326(a) and (b)(1). His plea
agreement included in pertinent part: a statement that no
promises, agreements, or conditions had been entered into
other than those set out in the agreement, and none would be
entered into unless in writing and signed by all parties;
recommendations to the Court regarding base offense level, a
16-level increase for the Defendant's prior
drug-trafficking offense, and a non-binding recommendation
for a 4-level downward departure pursuant to United States
Sentencing Guideline (“U.S.S.G.”) § 5K3.1;
and a waiver of the right of appeal and collateral attack
except based on ineffective assistance of counsel. See ECF
No. 21 In his Petition to Enter a Plea of Guilty, signed by
the Defendant on October 7, 2015, he stated: He had enough
time to talk with his attorney; he was satisfied with the job
his attorney had done; he had no objections to the way his
attorney had represented him; he knew he had a right to plead
not guilty and proceed to trial with all accompanying
constitutional rights; he was aware that the maximum
statutory term of imprisonment for Count I was 10 years; he
was voluntarily pleading guilty because he was
guilty; and no promises had been made to him other than those
contained in his plea agreement. See ECF No. 20.
Defendant's plea was accepted and he was found guilty of
Count I of the Indictment on October 26, 2015. At the
sentencing hearing on February 17, 2016, the Defendant was
represented by attorney Kelly M. Steenbock of the Office of
the Federal Public Defender, who also represented the
Defendant through the entire process of his case, and the
Court proceeded with sentencing pursuant to the plea
agreement. Judgment was entered on February 17, 2016, and the
Defendant was committed to the Bureau of Prisons for a term
of 42 months, followed by three years of supervised release.
See ECF No. 25.
February 9, 2016, the Defendant filed his § 2255 Motion,
asserting four grounds for relief, including ineffective
assistance of counsel.
establish ineffective assistance of counsel, the Defendant
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. “To establish
prejudice, the defendant must demonstrate a reasonable
probability that the result of the proceeding would have been
different, but for counsel's deficiency.”
United States v. Luke, 686 F.3d 600, 604 (8th Cir.
Defendant asserts as Ground One that his counsel never
discussed with him the possibility of obtaining a departure
under § 5K3.1. In the same paragraph, the Defendant
asserts that his counsel promised that a § 5K3.1
departure would be granted at the time of sentencing. The
Defendant also asserts that he did not receive such a
departure. The record shows that the Court granted the §
5K3.1 4-level departure and sentenced the Defendant in the
new guideline range. Accordingly, the Defendant's
contradictory and inconsistent arguments presented in Ground
One are wholly without merit, and Ground One will be
Ground Two, the Defendant again asserts that his counsel
never discussed with him the potential for a 4-point
fast-track departure. This assertion is duplicative of the
assertion in Ground One, and will be summarily dismissed for
the same reasons.
Ground Three, the Defendant asserts that his counsel failed
to disclose the Defendant's “excruciating
circumstances” at the time of sentencing, including the
Defendant's desire to support members of his family who
resided in the United States. This argument is also without
merit. The Defendant had an opportunity to present a
statement to the Court on his own behalf at the time of
sentencing and could have presented such facts if he wished.
Also within Ground Three, the Defendant appears to assert
that he received a sentencing enhancement because he was on
probation at the time of the instant offense, or that his
criminal history was enhanced because some crime was
committed while he was on probation. That vague allegation is
not supported by the record. Finally, also within Ground
Three, the Defendant appears to assert that his lawyer led
him to believe he would receive probation if he pled guilty.
That vague allegation is contradicted by the clear content of
the plea petition, the plea agreement, and the plea colloquy.
The undersigned took the Defendant's plea in this case,
and questioned the Defendant at length to ensure that the
plea was knowing and voluntary and supported by a factual
basis; that the Defendant was satisfied with the advice and
performance of counsel; that the Defendant was aware of the
potential penalties; and that no promises had been made to
the Defendant outside the written plea agreement.
Ground Four, the Defendant asserts that a sentence of 42
months for the offense of illegal reentry is excessive. That
sentence was in the mid-range of the guideline, following the
4-level downward departure pursuant to U.S.S.G. §5K3.1.
The Defendant had an extensive criminal history, including
drug trafficking offenses, and three prior deportations. The
sentence was not substantively unreasonable.
respect to the Defendant's complaints about his
counsel's representation, he cannot prove either prong of
the Strickland test. The complaints do not rise to a
level showing that counsel performed outside the wide range
of reasonable professional assistance and made errors so
serious that she 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 the Defendant demonstrated any