United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
ORDER AND FINAL REPORT AND RECOMMENDATION
RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE
matter has been submitted to the undersigned Magistrate Judge
for consideration of Jesus Gutierrez-Rios' pro
se motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255, [Doc. 61], as
supplemented, [Doc. 63]; the government's response, [Doc.
70]; and Gutierrez-Rios' reply, [Doc. 72], and motion for
reconsideration, [Doc. 76]. Because it is unclear what relief
Gutierrez-Rios seeks in his motion for reconsideration and
because he filed it while represented by appointed counsel,
his motion for reconsideration, [Doc. 76] is
DENIED. Following a January 10, 2019,
evidentiary hearing, [Doc. 77], and having considered the
motion and Gutierrez-Rios' testimony, it is
RECOMMENDED that Gutierrez-Rios' §
2255 motion be denied.
federal grand jury in the Northern District of Georgia
returned a three-count indictment against Gutierrez-Rios and
two co-defendants, charging Gutierrez-Rios in Count One with
conspiracy to possess with the intent to distribute at least
five kilograms of cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(A)(ii) and 846, and in Count Three
with possession with the intent to distribute at least five
kilograms of cocaine, in violation of §§ 841(a)(1),
841(b)(1)(A)(ii) and 18 U.S.C. § 2. [Doc. 4].
Represented by retained counsel Mark B. Jackson
(“Jackson”), Gutierrez-Rios entered a negotiated
guilty plea to Count One. [Doc. 41]. The government agreed to
dismiss the remaining count and to recommend that
Gutierrez-Rios receive a sentence reduction for acceptance of
responsibility. [Doc. 41-1 ¶¶ 11, 15]. At the plea
hearing, Gutierrez-Rios was placed under oath and confirmed
his understanding that he faced a mandatory minimum sentence
of ten years of imprisonment. [Doc. 67 at 3, 14-15]. On April
24, 2018, the Court imposed the mandatory minimum sentence.
[Doc. 55]. Gutierrez-Rios did not file a direct appeal.
timely filed this pro se § 2255 motion. [Doc.
61]. In his motion, as supplemented, Gutierrez-Rios argued
that Jackson provided him ineffective assistance by failing
to (1) file a notice of appeal as requested, (2) argue for a
minor role reduction, (3) request a safety valve reduction,
(4) challenge the criminal history calculation in the
presentence investigation report (“PSR”), (5)
challenge the sentence “based on the unwarranted
disparities between other defendants of similar records found
guilty of similar offenses, ” and (6) address the
government's failure to recommend a reduction for
acceptance of responsibility as mandated by the plea
agreement. [Id. at 3-4, 6, 14-15, 17-20; Doc. 63].
The government responded that a limited evidentiary hearing
was necessary to resolve ground one, but that
Gutierrez-Rios' remaining grounds for relief lacked
merit. [Doc. 70 at 3, 8-13]. Gutierrez-Rios replied,
reasserting the merits of grounds two through five. [Doc.
72]. The undersigned appointed counsel to represent
Gutierrez-Rios, [Doc. 71], and conducted an evidentiary
hearing to address ground one only, [Doc. 77]. However, at
the evidentiary hearing, Gutierrez-Rios withdrew ground one
when he testified that he did not ask his attorney to file a
direct appeal, leaving only grounds two through six.
federal prisoner may file a motion to vacate his sentence
“upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). “[T]o obtain
collateral relief a prisoner must clear a significantly
higher hurdle than would exist on direct appeal.”
United States v. Frady, 456 U.S. 152, 166 (1982)
standard for evaluating ineffective assistance of counsel
claims is set forth in Strickland v. Washington, 466
U.S. 668, 687 (1984). The analysis is two-pronged. However, a
court need not address both prongs “if the defendant
makes an insufficient showing on one.” Id. at
697. A defendant asserting a claim of ineffective assistance
of counsel must first show that “in light of all the
circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance.”
Id. at 690. Second, a defendant must demonstrate
that counsel's unreasonable acts or omissions prejudiced
him. In order to demonstrate prejudice, a 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.
Failure to Challenge Criminal History
ground four, Gutierrez-Rios asserts that Jackson provided him
ineffective assistance by failing to challenge the criminal
history calculation in the PSR. [Doc. 63 at 1]. The Court
calculated Gutierrez-Rios' criminal history category as
II based on his two prior convictions for illegal entry: the
first on May 10, 2013, and the second on September 11, 2014.
[PSR ¶¶ 37-40; Doc. 68 at 3-4]. Gutierrez-Rios
argues that he should not have received a criminal history
point based on his 2013 conviction for illegal reentry
because he “was sentenced to a term of only two days in
custody” for that conviction. [Doc. 72 at 2]. In
support of this argument, Gutierrez-Rios cites U.S.S.G.
§ 4A1.2(c), which provides that certain
“misdemeanor and petty offenses” listed in that
guideline are counted only if the sentence “was a term
of probation of more than one year or a term of imprisonment
of at least thirty days.” [Id.]. However,
Gutierrez-Rios' reliance on this sentencing guideline is
misplaced because illegal reentry is not one of the
“misdemeanor and petty offenses” listed as
exceptions in the guideline, nor is it a similar offense to
those listed. See U.S.S.G. § 4A1.2(c)(1).
Accordingly, Gutierrez-Rios has not shown deficient
performance or prejudice as to ground four because “the
argument that [he] claims his counsel should have made is
meritless, and counsel could not have been deficient for
failing to make it.” United States v.
Cisneros, No. 1:09-CR-514-TWT, 2014 WL 5822684, at *5
(N.D.Ga. Nov. 10, 2014), adopted at *1 (citing Frederick
v. Dep't of Corr., 438 Fed.Appx. 801, 803 (11th Cir.
2011) (per curiam)).
Failure to Present Other Sentencing Issues or
grounds two, three, five, and six, Gutierrez-Rios argues that
Jackson should have argued for a minor role reduction,
requested a safety valve reduction, challenged the sentence
“based on the unwarranted disparities between other
defendants of similar records found guilty of similar
offenses, ” and addressed the government's failure
to recommend a reduction for acceptance of responsibility as
mandated by the plea agreement. [Doc. 61 at 6, 18-20; Doc. 63
at 1-2]. Gutierrez-Rios is incorrect as to this final point
because the government recommended a three-level reduction
for acceptance of responsibility, and the Court included the
adjustment in its calculation of Gutierrez-Rios' offense
level. [PSR ¶ 31; Doc. 68 at 3]. Because Gutierrez-Rios
had more than one criminal history point, he did not qualify
for a safety valve reduction, see 18 U.S.C. §
3553(f)(1), and he received the lowest possible sentence,
i.e., the mandatory minimum of ten years of imprisonment
under 21 U.S.C. § 841(b)(1)(A). [PSR at 15; Doc. 68 at
5-6, 8-9]. Because he could not have received a lower
sentence had counsel performed differently, Gutierrez-Rios
does not show prejudice, and grounds two, three, five, and
six fail. See Webman v. United States, No.
1:13-CR-0025-SCJ-JFK-1, 2017 WL 4385326, at *8 (N.D.Ga. Oct.
2, 2017) (“[H]ad counsel argued that Movant should
receive a lower sentence[, ] . . . there is no reasonable