United States v. Boria, CRIMINAL ACTION NO. H-11-1-1

• Decision Date: 04 December 2017
• Docket Number: CRIMINAL ACTION NO. H-11-1-1,CIVIL ACTION NO. H-15-3310
• Parties: UNITED STATES OF AMERICA, Plaintiff-Respondent, v. CARLOS MANUEL BORIA, Defendant-Movant
• Court: U.S. District Court — Southern District of Texas

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
CARLOS MANUEL BORIA, Defendant-Movant

CRIMINAL ACTION NO. H-11-1-1
CIVIL ACTION NO. H-15-3310

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ENTERED: December 5, 2017
December 4, 2017

MEMORANDUM AND RECOMMENDATION

Before the Magistrate Judge in this federal habeas corpus proceeding pursuant to 28 U.S.C. §2255 is Movant Carlos Manuel Boria's §2255 Motion to Vacate, Set Aside or Correct Sentence (Document No.515) and Memorandum of Law in Support (Document No. 516),¹ and the United States's Response and Motion for Summary Judgment (Document No.526). After reviewing the parties' submissions, the record of the proceedings before the District Court and on appeal in the underlying criminal case, and the applicable case law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that the United States's Motion for Summary Judgment (Document No. 526) be GRANTED and that Movant Carlos Manuel Boria's §2255 Motion to Vacate, Set Aside or Correct Sentence (Document No.515) be DENIED.

I. Procedural History

Movant Carlos Manuel Boria ("Boria"), who is currently in the custody of the United States Bureau of Prisons, is seeking federal habeas corpus relief under 28 U.S.C. §2255. This is Boria's

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first attempt at §2255 relief.

On January 3, 2011, a grand jury in the United States District Court for the Southern District of Texas, Houston Division returned a five-count Indictment. (Document No. 33). Count 1 alleged conspiracy to possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C.§§ 841(a)(1) and (b)(1)(a), 846. Count 2 alleged aiding and abetting attempted possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(a), 846 and 18 U.S.C. § 2. Count 3 alleged conspiracy to commit a violation of 18 U.S.C. § 924(c) in violation of 18 U.S.C. § 924(c)(1)(A), 924(o). Count 4 alleged aiding and abetting a violation of 18 U.S.C. § 924(c) in violation 18 U.S.C. § 924(c)(1)(A), 2. Count 5 alleged possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Named as defendants were Boria (Counts 1-5), Francisco Javier Rodriguez (Counts 1-4), Edwin Rivera-Otero (all Counts), Eric Alberto Lewis (Counts 1-4), Marvin Cesar Carabali-Diaz (Counts 1-4), Miguel Suarez Ramirez (all Counts), and Iris Yamileth Bonilla-Reyes (all Counts). A 13-count Superseding Indictment was returned by the Grand Jury on August 9, 2012. (Document No. 142). The Superseding Indictment charged the same Defendants. Counts 1S-5S were the same as Counts 1-4 in the earlier Indictment. The Superseding Indictment added 8 new counts. Count 6S charged aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Count 7S alleged false claim to United States Citizenship in violation of 18 U.S.C. § 911. Count 8S alleged aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Count 9S alleged false claim to United States Citizenship in volation of 18 U.S.C. § 911. Count 10S alleged aggravated identity theft in volation of 18 U.S.C. § 1028A(a)(1). Count 11S alleged false claim to United States Citizenship in violation of 18 U.S.C. § 911. Count 12S alleged unlawful re-entry into the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). Count 13S charged

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unlawful re-entry into the United States in violation of U.S.C. § 1326(a). Boria was charged in Counts 6S and 7S. Edwin Rivera-Otero was charged in Count 8S and 9S. Marvin Cesar Carabali-Diaz was charged in Count 10S, 11S and 13S. Iris Yamileth Bonilla-Reyes was charged in Count 12S.

On September 26, 2012, Boria pleaded guilty to Count 6S and 7S, without a written Plea Agreement. As for the remaining charges, following a six day jury trial, Boria was found guilty of Counts 1S-5S. (Document No. 246).

Prior to sentencing, a pre-sentence investigation report ("PSR") was prepared to which Boria filed written objections. (Document No.269, 292, 294). Boria also filed a Sentencing Memorandum. (Document No. 298). The PSR assigned Boria a base offense level of 34. Because of his role as an organizer/leader in the offense, Boria's base offense level was adjusted upward four levels pursuant to U.S.S.G. § 2D1.1(b)(1). For Counts 1S-5S, Boria had an adjusted offense level of 38. As for the offenses to which Boria pleaded guilty, his base offense level was 8. Boria had a combined adjusted offense level of 38. With an adjusted offense level of 38, and a criminal history category of IV, Boria had an advisory guideline sentencing range of 324 to 405 months imprisonment. Count 4S carried a mandatory consecutive term of 60 months imprisonment pursuant to 18 U.S.C. § 924(c)(1)(A). Count 6S carried a consecutive term of 24 months imprisonment pursuant to 18 U.S.C. § 1028A(a)(1).

Boria was sentenced on April 12, 2013. (Document No. 303, Transcript of Sentencing Hearing, Document No.362). Boria was sentenced to 405 months imprisonment as to Counts 1S and 2S, 240 months as to Count 3S, 120 months as to Count 5S, and 36 months as to Count 7S, all counts to be served concurrently, followed by 60 months as to Count 4S to run consecutive to all

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other counts, to be followed by 24 months as to Count 6S, to run consecutive to all other counts, for a total term of 489 months, to be followed by a 5 year term of supervised release as to Counts 1S, 2S, and 4S, three year term as to Counts 3S and 5S, and a one year term as to Counts 6S and 7S, all terms to run concurrently. He was ordered to pay a special assessment of $700. (Transcript of Sentencing, Document No.362, pp.15-18). In imposing sentence, the Court stated:

Carlos Manuel Boria is before the Court this afternoon after being found guilty by a jury of Counts 1 through 5 of the superseding indictment. And after pleading guilty to Count 6 and 7 of the superseding indictment.

The investigation revealed that Mr. Boria and his co-conspirators met with an undercover DEA agent and conspired to rob at least 30 kilograms of cocaine from the stash house.

Mr. Boria, along with the other co-conspirators, agreed to restrain a victim in the course of the offense. He held [an] organizer, leadership role within the conspiracy, and brought the rest of [the] defendants into the proposed scheme to rob the cocaine.

In addition, Mr. Boria is responsible for possession of a firearm. He was dressed in police clothing at the same time. The investigation revealed that his true identity is Luis German Rodriguez, a 33 year old Colombian national who purchased the identity of a United States citizen who was a native of Puerto Rico. He is married to co-defendant Iris Bonilla Reyes, and the couple has a one-year old son. The defendant has five other children from a previous relationship. He is residing illegally in Houston since 1988, and he has reported that he maintains employment as a self-employed contract painter.

He attempted to impersonate a police officer and was dressed in police clothing at the time of his arrest, and he and his co-conspirators intended to physically restrain their victims with zip ties in the course of events. This egregious conduct was not taken into account in the guideline calculations, and I think they warrant a sentence at the upward end of the guideline range, and that such a sentence at the high end will protect the public and also provide deterrence, and is sufficient and necessary but not greater than necessary to comply with the purposes of statutory sentencing framework found in 18 United States Code Section 3553(a).

Although Mr. Boria will likely be deported after he serves his sentence, I am going to impose a five-year term of supervised release because it will contribute to the — as being— to the recidivism of coming back into the country illegally. (Document

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No. 362, p. 13-15).

Judgment was entered on April 19, 2013.² (Document No.324). Boria appealed his conviction and sentence to the United States Fifth Circuit Court of Appeals. Boria raised several issues on direct appeal. Boria argued that the court erred in denying his motion to dismiss the indictment due to outrageous conduct by the government in setting up the reverse-sting operation. Boria also argued that the court erred in denying his motion to compel the testimony or disclose the identity of the CI. Boria argued that the Court erred in declining to instruct the jury on the defense of entrapment. Boria further argued that the indictment was constructively amended at trial because the jury instruction's description of the first element of Count 2 omitted the word "attempt" and failed to specify that the controlled substance was cocaine. On or about April 13, 2015, the Fifth Circuit affirmed Boria's conviction and sentence. (Document No. 498, 502 ). Boria did not seek certiorari review with the United States Supreme Court. His conviction became final on July 15, 2015, the date that the 90-day period for requesting a Writ of Certiorari expired. See Clay v. United States, 537 U.S. 522, 532 (2003);S.Ct. Rule 13.1. On November 8, 2015, Boria timely filed the instant § 2255 motion. (Document No.515).

II. Discussion

A. Ineffective Assistance of Counsel Claims

Claims of ineffective assistance of counsel are generally measured by the standard of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must be able to show

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that his counsel was deficient and that the deficiency prejudiced him to the extent that a fair trial could not be had. Strickland, 466 U.S. at 687. Deficiency is judged by an objective reasonableness standard, with great deference given to counsel and a presumption that the disputed conduct is reasonable. Id. at 687-88. The prejudice element requires a petitioner to prove that absent the disputed conduct of counsel, the outcome would have been both different and more favorable. Id. at 694-95. Under Strickland, a petitioner must establish both deficiency and prejudice...