Bayona-Montes v. United States
| Decision Date | 26 March 2019 |
| Docket Number | EP-18-CV-53-PRM,EP-15-CR-1608-PRM-1 |
| Parties | MANUEL BAYONA-MONTES, Reg. No. 57084-380, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Texas |
On this day, the Court considered Movant Manuel Bayona-Montes's [hereinafter "Movant"] pro se "Petition for Section 2255 to Vacate, Set Aside or Reduce Sentence" (ECF No. 109)1 [hereinafter "§ 2255 Motion"], filed on February 13, 2018, in the above-captioned cause. Therein, Movant challenges the 188-month sentence imposed by the Court after he pleaded guilty to conspiring to possess with the intent to distribute more than 500 grams of cocaine. After due consideration, the Court is of the opinion that Movant's § 2255 Motion should be denied, for the reasons that follow. Additionally, the Court is of the opinion that Movant should bedenied a certificate of appealability.
On August 12, 2015, Customs and Border Protection officers stopped a white Dodge Ram 1500 truck entering the United States from Mexico at the Paso Del Norte Port of Entry in El Paso, Texas. See Plea Agreement (Factual Basis), Jan. 13, 2016, ECF No. 63 (). They observed Movant and a passenger, later identified as Movant's wife, inside the vehicle. They escorted the truck to a secondary inspection area based upon numerous database alerts on the vehicle.
During the secondary inspection, an officer opened the hood and noticed that someone had recently removed the engine's intake manifold.2 When he detached the vacuum hose, he noticed an obstruction inside the manifold. Another officer conducted a canine sweep of the vehicle. His narcotics-detecting dog alerted to the front engine compartment. The officers subsequently extracted five, silver-taped bundles from the enginemanifold. Laboratory analysis confirmed that the bundles contained cocaine with a net weight of 3.981 kilograms.
Based on information provided by multiple cooperating defendants, Drug Enforcement Administration special agents determined that Movant had been transporting or assisting in transporting drugs from El Paso, Texas, to other cities in Texas, California, and New Mexico since May of 2014.
On September 10, 2015, a grand jury returned a four-count Indictment against Movant. Indictment, Sept. 10, 2015, ECF No. 21. The Indictment charged Movant with conspiring to import 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 952(a), 960, and 963 (count one); importing 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 952(a), 960 (count two); conspiring to possess 500 grams or more of cocaine, with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (count three); and possessing 500 grams or more of cocaine, with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(ii) (count four). Id.
Movant's counsel negotiated a Plea Agreement with the Government. Plea Agreement, Jan. 13, 2016, ECF No. 63. Under itsterms, Movant agreed to plead guilty to count three of the Indictment and waive his right to appeal or collaterally attack his sentence except "on grounds of ineffective assistance of counsel or prosecutorial misconduct of constitutional dimension." Id. at 1, 5. In exchange, the Government agreed to move to dismiss the remaining counts of the Indictment. Id. at 1.
On January 13, 2016, Movant appeared before a U.S. Magistrate Judge and pleaded guilty to count three of the Indictment, pursuant to the Plea Agreement.
The probation officer who prepared the Presentence Investigation Report ("PSR") recommended that the Court hold Movant "accountable for a combined total of 59.7 kilograms of cocaine and 6.6 kilograms of heroin." PSR ¶ 44, Mar. 29, 2016, ECF No. 81. This resulted in a base offense level of 34. Id. at ¶ 51. The probation officer also recommended that the Court adjust the base offense four levels upward because Movant was a "leader/organizer" directly involved in importing drugs from Mexico, and three levels downward because of Movant's "acceptance of responsibility." Id. at ¶¶ 52, 55, 59, 60. The probation officer further recommended that "[b]ased upon a total offense level of 35 and a criminal history category ofII, the guideline imprisonment range is 188 months to 235 months." Id. at ¶ 91.
Movant's counsel objected to the probation officer's reliance on information provided by "confidential informants" to determine the quantity of drugs attributable to the conspiracy and to calculate Movant's base offense level. Def.'s Obj., Mar. 29, 2016, ECF No. 81-2. He argued that the upward adjustments for "leader/organizer" and for direct involvement in the "importation of drugs" where an aggravating role was assessed were unwarranted and asked for a downward adjustment for Movant's "minor role." Id.
The Court rejected the arguments by Movant's counsel and adopted the PSR without change. Statement of Reasons, Apr. 5, 2016, ECF No. 94. The Court sentenced Movant at the bottom of the guideline range to 188 months' imprisonment. J. Crim. Case, Apr. 5, 2016, ECF No. 93.
The attorney appointed to represent Movant on his direct appeal filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). United States v. Bayona-Montes, No. 16-50377 (5th Cir. Feb. 6, 2017). Movant did not respond. The Fifth Circuit Court of Appeals reviewed counsel's brief andthe relevant portions of the record. It concurred with counsel's assessment that the appeal presented no nonfrivolous issue for appellate review and on February 6, 2017, it dismissed the appeal. Id.
On February 13, 2018, Movant filed his § 2255 Motion. Mot. to Vacate, Feb. 13, 2018, ECF No. 109.
In his § 2255 Motion, Movant asserts that the "sentence and conviction should be overturned ab initio by reason of a fatally defective indictment." Id. at 6. In addition, he claims that his counsel provided constitutionally ineffective assistance when he failed to (1) "seek . . . arbitration on his objections to the pre-sentencing report," (2) "argue aggressively for a minor role," (3) investigate "his case thoroughly," (4) "subject the prosecution's case to meaningful adversarial testing," and (5) argue that the indictment was "defective." Id. at 7-8. Furthermore, he asserts that the Court erred when it imposed a "substantially unreasonable" sentence. Id. at 9. Accordingly, Movant asks the Court to "grant the requested relief." Id. at 17.
A court is normally "entitled to presume that the defendant stands fairly and finally convicted" after the defendant has been convicted andexhausted or waived any right to appeal. United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982)). However, a court may consider a defendant's collateral attack on a federal sentence through a § 2255 motion. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000); Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990). In addition, a court may grant a defendant relief pursuant to § 2255 for errors which occurred at trial or at sentencing. Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997).
A § 2255 motion is not a substitute for a direct appeal. Frady, 456 U.S. at 165; United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). It "is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (emphasis added) (quoting United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994)).
The movant ultimately bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980) (citing United States v. Kastenbaum, 613 F.2d 86, 89 (5th Cir. 1980)). A movant must show that: (1) his sentencewas imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose the sentence; (3) the sentence was more than the maximum authorized by law; or (4) the sentence was otherwise subject to collateral attack. United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
A court may deny a § 2255 motion without a hearing if "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b) (2012); see also United States v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990) (). Indeed, "[i]f 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." See 28 U.S.C. foll. § 2255 Rule 4(b).
When a court finds that the movant is entitled to relief, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appearappropriate." 28 U.S.C. § 2255(b). Thus, a court has "'broad and flexible power . . . to fashion an appropriate remedy.'" United States v. Stitt, 552 F.3d 345, 355 (4th Cir. 2008) (quoting United States v. Hillary, 106 F.3d 1170, 1171 (4th Cir. 1997)); see also Andrews v. United States, 373 U.S. 334, 339 (1963) (); United States v. Torres-Otero, 232 F.3d 24, 30 (1st Cir. 2000) (...
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