United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge.
matter is before the Court on the Defendant'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. 154.
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.
Mauricio Cabrera pled guilty to the offense of conspiracy to
distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 846. Although he
had no formal plea agreement, the Defendant and the
government agreed that the Defendant should be held
responsible for methamphetamine mixture, rather than actual
methamphetamine. The Court sustained the government's
objection to the Revised Presentence Investigation Report
(PSR) accordingly, and reduced the Defendant's sentencing
guideline from 87-108 months to 70-87 months. Although the
Defendant met the first four prongs of the safety valve under
United States Sentencing Guideline (USSG) § 5C1.2, he
did not satisfy the fifth prong and did not receive a
two-level reduction in his offense level for safety valve
eligibility. On March 27, 2017, Judgment was entered,
ordering a sentence of 70 months incarceration, to be
followed by four years of supervised release. Cabrera did not
appeal the conviction or sentence.
§ 2255 Motion, dated February 18, 2018, and filed
February 23, 2018, Cabrera asserts that his counsel was
ineffective for not advising him of his right of appeal and
for not bringing to the Court's attention at the time of
sentencing the fact that Cabrera had “personal
excruciating circumstances.” ECF No. 154, Page ID 385.
Cabrera states he is seeking a reduced sentence, and he makes
several references to “Rule 35(B).” ECF No. 154,
Page ID 389, 391.
establish ineffective assistance of counsel, Cabrera 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. 2012).
although Cabrera states “[he] did not know that by
signing the Plea [he] was giving up [his] appeal rights and
most rights to collateral attack[, ]” ECF No. 154, Page
ID 383, he did not waive his right of appeal in any plea
agreement or other document. The Court advised Cabrera of his
right of appeal at the time of his plea hearing and again at
the time of sentencing, and Cabrera read and signed a written
Notice of the Right of Appeal immediately after the
sentencing and in the presence of his counsel. See ECF No.
129. Cabrera does not suggest that he ever asked his lawyer
to file an appeal, nor does Cabrera state what grounds, if
any, he would have had for any such appeal.
respect to “excruciating circumstances, ” Cabrera
simply states that he has to support his
family. ECF No. 154, Page ID 385. Cabrera had an
opportunity to address the Court at the time of sentencing,
and could have raised any such mitigating circumstances
himself at that time. Any failure on the part of counsel to
discuss Cabrera's family responsibilities at the time of
sentencing does not rise to conduct outside the wide range of
reasonable professional assistance, nor is it an error so
serious that counsel can be said to have failed to function
as the kind of counsel guaranteed by the Sixth Amendment. Nor
can it be inferred that Cabrera suffered any prejudice as a
result of defense counsel's failure to emphasize
Cabrera's family responsibilities. Cabrera received a
sentence at the lowest end of the applicable guideline range,
and the undersigned judge has no history of varying downward
from the guideline range in drug conspiracy cases based on a
defendant's family responsibilities.
the Court has no authority to alter Cabrera's sentence
based on substantial assistance under Fed. R. Crim. P. 35(b)
unless a motion is filed by the government, and it is
entirely in the discretion of the government whether any such
motion is filed.
IT IS ORDERED:
1. The Defendant's Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody, ECF No. 154, is denied;
2. A separate Judgment will be entered, denying the §
2255 Motion; and
3. The Clerk will mail a copy of this Memorandum and Order to
Defendant at the ...