Sanchez v. UNITED STATES OF AMERICA
Filing
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Memorandum and Recommendation: Recommending that the Movants Motion to Vacate 50 be Denied.(Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
V.
NOE HEREDIA SANCHEZ,
Defendant-Movant
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CRIMINAL ACTION NO. H-08-358
CIVIL ACTION NO. H-11-2199
MEMORANDUM AND RECOMMENDATION
Before the Magistrate Judge in this federal habeas corpus proceeding pursuant to 28 U.S.C.
§2255 is Movant Noe Heredia Sanchez’s §2255 Motion to Vacate, Set Aside or Correct Sentence
(Document No. 50),1 the United States’ Response to Movant’s §2255 Motion (Document No. 52),
and Movant’s Reply to the United States’ Response (Document No. 54). After reviewing Movant’s
§2255 Motion, the Government’s Response, Movant’s Reply to the Government’s Response, the
record of the proceedings before the District Court in the underlying criminal case and on appeal,
and the applicable case law, the Magistrate Judge RECOMMENDS, for the reasons set forth below,
that Movant Noe Heredia Sanchez’s §2255 Motion (Document No. 50) be DENIED.
I.
Procedural History
Movant Noe Heredia Sanchez (“Sanchez”), 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
Sanchez’s first attempt at §2255 relief.
1
Noe Heredia Sanchez’s Motion to Vacate, Set Aside or Correct Sentence can be found
at Document No. 1 in Civil Action H-11-2199 and at Document No. 50 in Criminal Action No.
H-08-358.
On June 4, 2008, Sanchez was charged by Indictment with illegal reentry by a previously
deported alien after an aggravated felony conviction in violation of 8 U.S.C. §1326(a) and (b)(2).
(Document No. 1). On August 15, 2008, Sanchez pleaded guilty, without a written plea agreement,
to the Indictment. (Document No. 16, Transcript of Rearraignment, Document No. 44). With
respect to what the Government was prepared to prove had the matter proceeded to trial, the
Government stated:
Mr. Stabe: Yes, Your Honor. The Government would show that the Defendant is
a citizen of Mexico; that back on February 20th, 1986, he was convicted in Hidalgo
County of driving while intoxicated. On April 11, 1997, the Defendant was
convicted in Brazoria County for the offense of unlawfully carrying a weapon. On
August 30th, 1999, the Defendant was convicted in the 23rd District Court of Brazoria
County, Texas, for the offense of delivery of a controlled substance, which was an
aggravated felony. He was sentenced initially to eight years probation. On October
13th, 2004, his probation was amended to a ten-year probation, and on November 17th,
2005, the probation was revoked and he was sentenced to two years’ confinement in
the Texas State Prison.
Also, on September 20th, 1999, the Defendant was convicted, also in Brazoria
County, of the offense of theft. On July 29, 2002, the Defendant was convicted in
Harris County of the offense of driving while intoxicated. On February 26, 2004, the
Defendant was convicted in Hidalgo County, again, of the offense of driving while
intoxicated.
On April 5, 2005, the Defendant was deported from the United States at Brownsville,
Texas, to Mexico. Again, on February 7, 2006, the Defendant was deported from the
United States at Laredo, Texas, to Mexico. The Defendant was found on May 8th,
2008, in the United States at Portland, Texas, which is in the Southern District of
Texas.
A records search of the Central Index System and the Defendant’s A-file revealed no
evidence that the Defendant obtained consent from either the Attorney General of the
United States or the Secretary of the Department of Homeland Security to reapply for
admission to the United States. The fingerprint analyst examined and compared the
fingerprints on the warrant of deportation and the conviction documents to known
fingerprints of the Defendant and concluded they were made by the same individual.
The Court: All right. Mr. Sanchez, tell me in your own words what it is you did to
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commit the crime you’re pleading “guilty” to this morning.
Defendant Sanchez: I didn’t understand your question very well.
The Court: I just want you to tell me in your own words what it is you did to commit
the crime you are pleading “guilty” to this morning.
Defendant Sanchez: My son lost his sanity. He became crazy and my wife called me
that she needed me urgently back in the United States.
The Court: So, you came back into the United States without first asking permission
from the authorities. Is that correct?
Defendant Sanchez: Yes, Your Honor.
The Court: And you had been deported from the United States?
Defendant Sanchez: Yes, Your Honor. (Transcript of Rearraignment, Document No.
44, pp. 18-20).
Prior to sentencing, a pre-sentence investigation report (“PSR”) was prepared to which
Sanchez filed no written objections. (Document Nos. 20, 21, 22, 24). Pursuant to the PSR, Sanchez
had a base offense level of 8 under U.S.S.G. §2L1.2(a). Sanchez’s base offense level was increased
by sixteen levels pursuant to U.S.S.G. §2L1.2(b)(1)(A)(I) because of his previous conviction for
delivery of a controlled substance that resulted in a two year imprisonment. Because Sanchez
accepted responsibility for his activities, and did so in a timely manner, his offense level was reduced
by three levels under U.S.S.G. §3E1.1(a) and (b). With an offense level of 21, and a criminal history
category of IV, Sanchez had an advisory guideline sentencing range of 57 to71 months.
Sanchez was sentenced on January 16, 2009. (Document No. 25, Transcript of Sentencing
Hearing, Document No. 40). Sanchez’s counsel argued for a sentence at the low end of the advisory
guideline sentencing range based on his family circumstances and in particular, Sanchez’s desire to
make his life in Mexico and not the United States.
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The Court: And have you discussed this presentence report with Mr. Salinas, your
attorney?
The Defendant: Yes.
The Court: Do you feel you understand what’s contained in the presentence report?
The Defendant: Yes.
The Court: Do you have any questions you want to ask about it at this time?
The Defendant: No.
The Court: All right. Now, Mr. Salinas didn’t file any objections to the report. But
I want to find out if you have any objections that you would like to make to the
presentence report.
The Defendant: No.
The Court: Then I will adopt the presentence report as my own, both the findings of
fact and the application of the guidelines to the facts. I find a total offense level of
21, criminal history category of IV, which gives a guideline provision range of 57 to
71 months.
Mr. Salinas, anything you would like to say before I pronounce?
Mr. Salinas: Yes, Your Honor, just briefly, and then I believe Mr. Sanchez would
like to address the Court as well.
The Court: Okay.
Mr. Salinas: Your Honor, as reflected in the PSR, Mr. Sanchez has a common-law
wife and four children that all reside in the Valley. And basically when he was
deported, apparently he was placed on probation for a case he had, like, ten years ago
and he would up violating probation and got revoked as a result of a drinking
problem. It looks like he’s had several DWIs and driving while license suspended.
The PSR does reflect that what he’s told me and what he’s told probation is that his
oldest — excuse me– his oldest son was being civily committed as a result of a
mental disease and his wife notified him in Mexico, that she was kind of beside
herself and really didn’t know what to do. There were some court proceedings. And
that’s his reason for coming back, to basically help the family figure out what was
happening with their oldest child. And as a result of that, he wound up getting
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arrested under an illegal reentry case. The child I think is 20 now, but he’s basically
under a psychiatrist’s care and under medication and stuff.
Mr. Heredia Sanchez knows he needs to make his life in Mexico now. And the
family is coming to the realization that if they want to see dad, they’re going to have
to make arrangements to go to Mexico or move to Mexico. The wife and the
children are all U.S. citizens. He was a legal resident alien prior to his deportation
but, of course, he lost his status.
I would just ask the Court to take into account the family circumstances and sentence
him at the low end of the guidelines so he can get back with his family. He’s willing
to work two or three jobs, whatever it takes to help them make ends meet.
The Court: Anything you would like to say? Well, I was going to ask you first and
then I was going to ask him.
Mr. Stabe: Yes, Your Honor. We’re just going to recommend 60 months,
somewhere towards the low end of the guideline range, primarily because there are
a few criminal history — or criminal convictions that aren’t counted. But we do
recognize the fact that, you know, if there’s any to the defendant’s credit, you know,
he was just arrested on a traffic violation, yet he had not committed another, you
know, more serious crime when he was found by ICE. So, that’s our
recommendation.
The Court: All right. Mr. Sanchez, anything you would like to say before I
pronounce sentence?
The Defendant: With all my respect, I would like to apologize to you and to the
United States for finding myself again in this place, which I feel responsible for and
I ask you to forgive me and I beg you to please consider myself and my children.
And I am here because my son is sick and I came here at a moment of despair and I
never thought I was going to find myself in this situation I am today, because I didn’t
realize the serious problem I was getting myself into. And that is all that I’m asking
you for.
The Court: And do you understand that if you come back into the United States and
you get caught, that it will be even more severe? Do you understand that?
The Defendant: Yes, yes. Yes. I only ask you to give me a chance to live my life in
Mexico and I will return there to make my life. (Transcript of Sentencing Hearing,
Document No. 40, pp. 3-6).
On January 16, 2009, Sanchez was sentenced to a term of imprisonment of 57 months, to be
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followed by a 3 year term of supervised release. In addition, he was ordered to pay a special
assessment of $100. (Document No. 25, Transcript of Sentencing Hearing, Document No. 40, p
8-10).
Judgment was entered on January 27, 2009.
(Document No. 28). With respect to
Sanchez’s sentence, Judge Harmon stated:
Noe Heredia Sanchez comes before the Court after pleading guilty to the charge of
illegal reentry that followed an aggravated felony conviction and deportation.
On May 8th, 2008, he was found in the Southern District of Texas by an ICE agent
while working assigned duties at the ICE Law Enforcement Support Center. He was
in custody at the Portland Police Department, Portland, Texas, following his arrest
for a traffic offense.
Since age 24, while in the United States, the defendant has been arrested 14 times
and criminally convicted 10 times. His convictions include driving while
intoxicated, five times; unlawfully carrying a weapon; theft; delivery of a controlled
substance; and driving while licensed suspended. Prior terms of incarceration have
not deterred the defendant from committing new crimes.
In mitigation, the defendant’s criminal history does not include any crimes of
violence. Further, he reentered the United States most recently because of his son’s
mental illness. The defendant enrolled at community colleges to learn English and
industrial painting. His children and former common-law wife are U.S. citizens and
reside in the United States. He’s been deported twice.
*
*
I misspoke. The defendant has been deported one time before.
*
*
Pursuant to the Sentencing Reform Act of 1984, it’s the judgment of the Court that
the defendant, Noe Heredia Sanchez, is hereby committed to the custody of the
Bureau of Prisons to be imprisoned for a term of 57 months.
This sentence takes into account the 41 days that the defendant spent in
administrative custody, ICE custody, and will adequately sanction the defendant’s
criminal conduct and will serve as a deterrent and takes into account the factors
identified in 18, United States Code, Section 3553(a). (Transcript of Sentencing
Hearing, Document No. 40, pp. 7-8).
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Sanchez appealed his sentence to the Fifth Circuit Court of Appeals. (Document No.30, 31).
The Fifth Circuit affirmed the 16 level enhancement of Sanchez’s base offense level based on his
prior conviction of a drug trafficking offense. (Document No. 48). The Fifth Circuit wrote:
Sanchez pleaded guilty of being found unlawfully in the United States after
previously being removed following a conviction of an aggravated felony and
without having obtained consent of the Attorney General or the Secretary of the
Department of Homeland Security (“the Secretary”) to apply for admission, in
violation of 8 U.S.C. §1326(a) and (b)(2). The presentence investigation report
(“PSR”) indicated that in 1998, Sanchez was convicted in Texas state court of
delivery of a controlled substance after he attempted to sell cocaine to a police
informant. According to the PSR, Sanchez was sentenced to eight years’ probation
for the offense and later to two years’ incarceration after that probation was revoked.
At sentencing, the court asked whether Sanchez had reviewed and understood the
PSR. Sanchez said he had. The Court then asked whether he had any questions
about the PSR. Sanchez answered no. Next, the Court noted that Sanchez had not
filed any objections to the PSR and asked whether he had any objections to state at
that time. Sanchez again answered no.
The Court then adopted the PSR as its own, “both the findings of fact and the
application of the guidelines to the facts.” The Court calculated a total offense level
of 21, which included the PSR’s recommendation 16-level enhancement under
U.S.S.G. §2L1.2(b)(1)(A)(I) for prior conviction of a drug trafficking felony for
which the sentence imposed exceeded 13 months. Combined with a criminal history
category of IV, the Court calculated a guideline range of 57 to 70 months’
incarceration and sentenced Sanchez to 57 months.
Sanchez did not object to the PSR, the guideline calculation, or his sentence in the
district court. He argues, for the first time on appeal, that the sixteen level
enhancement was erroneously applied because the Court relied only on the PSR for
evidence of his prior drug-trafficking conviction.
Because Sanchez did not object, we review for plain error only. United States v.
Hickman, 331 F.3d 439, 443 (5th Cir. 2003). To establish plain error, he must show
“(1) an error; (2) that is clear and obvious; and (3) that affected his substantial
rights.” United States v. Ramirez, 557 F.3d 200, 204-05 (5th Cir. 2009) (Internal
quotation marks and citation omitted). If those conditions are met, we exercise our
discretion to correct the error only if it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings” (internal quotation marks and citation
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omitted) Id.
Sanchez argues that the district court erred by relying exclusively on the PSR to
establish whether his state conviction was a “drug trafficking offense” for purposes
of § 2L1.2(b)(1)(A)(i)’s 16-level enhancement. Under Shepard v. United States, 544
U.S. 13, 16 (2005), he contends, the court could rely only on “the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.”
Sanchez’s argument is narrow: He does not dispute the existence of the prior
conviction, or that the facts underlying the conviction would support the 16-level
enhancement if properly presented to the court, or even that the PSR’s description of
the conviction was correct. His only point is that the district court needed to ground
its factual findings about the prior conviction in one of the permissible sources of
information under Shephard.
Sanchez mischaracterizes the basis of the findings. The record shows that he
assented to the facts in the PSR, including those facts about his prior conviction.
“[R]eliance on a defendant’s admission of facts that are contained in the PSR is
permissible” to support a guideline enhancement. Ramirez, 557 F.3d at 204. It
follows that Sanchez has shown no error that was clear or obvious. Id. at 204-05.
Alternatively, any purported error did not affect the fairness, integrity, or public
reputation of the judicial proceedings. Id. at 205. (Document No. 48-1).
II. Discussion
Within one year of his conviction being final, Sanchez timely filed a §2255 Motion to
Vacate, Set Aside, or Correct Sentence (Document No. 50). Sanchez raises claims of ineffective
assistance of counsel. According to Sanchez, his counsel was constitutionally ineffective for failing
to argue that the sixteen level adjustment resulting from his 1999 state conviction for delivery of a
controlled substance was not a drug trafficking offense for purposes of the adjustment and further
by failing to argue that the sixteen level adjustment did not apply because he was sentenced to less
than a year imprisonment. He further argues that counsel was constitutionally ineffective for failing
to object to his criminal history assessment.
Finally, Sanchez argues that counsel was
constitutionally ineffective for failing to argue for a departure based on the collateral consequences
8
of alienage. The Government argues that Sanchez has not shown that his counsel was deficient nor
has he shown he was prejudiced.
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
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 prongs to be
entitled to habeas relief. The failure to establish either deficient performance or prejudice makes it
unnecessary to examine the other prong. United States v. Seyfert, 67 F.3d 544, 547 (5th Cir. 1995).
Under the deficiency prong of Strickland, judicial scrutiny of counsel’s performance is
“highly deferential” and “a strong presumption” is made that “trial counsel rendered adequate
assistance and that the challenged conduct was the product of reasoned trial strategy.” Wilkerson
v. Collins, 950 F.2d 1054, 1064-65 (5th Cir. 1992), cert. denied, 509 U.S. 921 (1993) (citing
Strickland). To overcome the presumption of competence, the petitioner “must identify the acts or
omissions of counsel that are alleged not to have been the result of reasonable professional
judgment.” Strickland, 466 U.S. at 690. Under the prejudice prong of Strickland, a petitioner must
be able to establish that absent his counsel’s deficient performance, the result of his trial could have
been different. “An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.
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Constitutionally effective assistance of counsel under Strickland is not errorless counsel. The
determination of whether counsel has rendered reasonably effective assistance turns on the totality
of facts in the entire record. Each case is judged in light of the number, nature, and seriousness of
the charges against a defendant, the strength of the case against him, and the strength and complexity
of his possible defense. Baldwin v. Maggio, 704 F.2d 1325, 1329 (5th Cir. 1983), cert. denied, 467
U.S. 1220 (1984). The reasonableness of the challenged conduct is determined by viewing the
circumstances at the time of that conduct. Strickland, 466 U.S. at 690. “We will not find inadequate
representation merely because, with the benefit of hindsight, we disagree with counsel’s strategic
choices.” Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999) (quoting Green v. Johnson, 116
F.3d 1115, 1122 (5th Cir. 1997)). Conclusory allegations of ineffective assistance of counsel do not
raise a constitutional question in a federal habeas petition. Miller v. Johnson, 200 F.3d 274, 281 (5th
Cir), cert. denied, 531 U.S. 849 (2000) (citing Barnard v. Collins, 958 F.2d 634, 642 (5th Cir. 1992);
Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)).
The United States Supreme Court in Harrington v. Richter, ___U.S.___, 131 S.Ct. 770, 778
(2011) recently discussed Strickland in the context of a habeas proceeding involving a state
conviction. While Harrington did not involve a federal habeas proceeding involving a federal
conviction, the Court’s discussion of Strickland and ineffective assistance of counsel claims is
instructive and equally applies to claims brought in a federal habeas proceeding such as those raised
herein.
With respect to ineffective assistance of counsel claims, the Court observed that “[t]here are,
[ ] ‘countless ways to provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.’ Rare are the situations in which the
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‘wide latitude counsel must have in making tactical decisions’ will be limited to any one technique
or approach.” Id. at 788-89 (quoting from Strickland, 466 U.S. at 689).
As a result, counsel’s
performance does not fall below that guaranteed by the Sixth Amendment where it can be shown that
counsel formulated a strategy that was reasonable at the time and balanced limited resources with
effective trial tactics and strategies. Harrington, 131 S.Ct. at 789. “Just as there is no expectation
that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for
a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote
possibilities.” Harrington, 131 S.Ct. at 791. Moreover, “it is difficult to establish ineffective
assistance when counsel’s overall performance indicates active and capable advocacy.” Harrington,
131 S.Ct. at 791 (emphasis added). Finally, in considering the prejudice prong of Strickland, the
likelihood of a different result must be substantial, not just conceivable. Id. at 791-792 (Citations
omitted). As a result, “‘[s]urmounting Strickland’s high bar is never an easy task.’” (quoting from
Padilla v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473, 1485 (2010)). In part, because:
Unlike a later reviewing court, the attorney observed the relevant proceedings, knew
of materials outside the record, and interacted with the client, with opposing counsel,
and with the judge. It is “all too tempting” to “second-guess counsel’s assistance
after conviction or adverse sentence.” The question is whether an attorney’s
representation amounted to incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common custom.
Harrington, 131 S.Ct. at 778 (citations omitted).
As to the specific examples of ineffective assistance of counsel which Sanchez cites to in
support of his ineffectiveness claim, such as that counsel could have and should have argued that the
sixteen level adjustment resulting from his 1999 conviction for Texas Delivery of Controlled
Substance should not have applied because it was not a “drug trafficking offense” and also because
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he served less than a year imprisonment for the conviction, that counsel could have and should have
objected to his criminal history assessment points based on the November 2010 amendment to the
Sentencing Guidelines, and that counsel could have and should have argued for a sentencing
departure based on collateral consequences of alienage, upon this record Sanchez is not entitled to
relief on his ineffective assistance of counsel claim and he has not shown that counsel’s performance
fell below that of Strickland.
As to Sanchez’s contention that the sixteen level enhancement did not apply to him, under
the Sentencing Guidelines, Sanchez’s Texas conviction for delivery of a controlled substance was
considered a “drug trafficking offense.” See United States v. Marban-Calderon , 631 F.3d 210, 212213 (5th Cir.), cert. denied. 132 S.Ct.129 (2011)(“a [prior] Texas conviction for delivery of a
controlled substance—whether by active transfer, by constructive transfer, or by offer to sell—
necessarily qualifies as a drug trafficking offense under the Sentencing Guidelines.”). Because
Sanchez’s state drug trafficking conviction clearly fell within the sixteen level enhancement under
U.S.S.G. §2L1.2(b)(1)(A)(I), Sanchez has not shown any legal or factual basis upon which counsel
could have objected to the PSR.
Similarly, with respect to Sanchez’s argument that the enhancement should not have applied
because the guidelines required that the deportee serve more than 13 months imprisonment to qualify
for the enhancement, Sanchez has not shown any viable legal or factual arguments that counsel could
have made. With respect to the Texas drug conviction at issue, the record shows that Sanchez was
sentenced to eight years probation on August 12, 1999. His probation was revoked and he was
sentenced to two years confinement on November 7, 2005. Sanchez was deported to Mexico on
February 7, 2006. Because Sanchez’s sentence had been increased due to the revocation of his
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probation prior to deportation, the sentence imposed in connection with the revocation is considered
part of his original sentence. See United States v. Compian-Torres, 320 F.3d 514, 516 (5th Cir.
2003) (holding that the term of imprisonment received at defendant’s revocation hearing that was
held prior to his deportation was part of the sentence imposed on his conviction for purposes of the
guideline); United States v. Bustillos-Pena, 610 F.3d 863, 867 (5th Cir. 2010) (“The purpose of the
sixteen level enhancement is to ensure that a defendant who reenters the United States illegally after
having committed a serious crime is punished more severely than a defendant who reenters the
country without having committed a serious crime.). Upon this record, Sanchez has not shown he
was prejudiced by counsel’s failure to argue that he did not qualify for the adjustment as he served
less than a year imprisonment since there was no legal basis for an objection. See Clark v. Collins,
19 F.3d 959, 966 (5th Cir. 1984) (“Failure to raise meritless objections is not ineffective lawyering,
it is the very opposite.”); United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (“An attorney’s
failure to raise a meritless argument cannot form the basis of a successful ineffective assistance of
counsel claim because the result of the proceeding would not have been different had the attorney
raised the issue.”).
Sanchez next argues that counsel was ineffective for failing to object to 2 points being added
to his criminal history score. In 2009 when Sanchez was sentenced, U.S.S.G. §4A1.1(e) provided
for two points being added to the criminal history score in a situation where the instant offense was
committed less than two years following the defendant’s release from custody. According to
Sanchez, the Sentencing Commission subsequently amended the Sentencing Guidelines to eliminate
the “recency” points in U.S.S.G. §4A1.1(e), and he suggests that he should benefit from the change
and further suggests that counsel should have objected to the two points. Sanchez acknowledges that
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Amendment 742 does not apply retroactively but argues that he should benefit from the change
because it suggests a recognition by the Sentencing Commission that recency points are not always
good predictors of criminal history or past criminal activity.
After Sanchez’s sentence was imposed, the Sentencing Commission eliminated recency
points under U.S.S.G. §4A1.1(e), but did not make the amendment retroactive. U.S.S.G. App. C,
Amendment 742 (Nov. 2011). The Sentencing Commission determines whether guideline
amendments will apply retroactively, see U.S.S.G. §1B1.10, and the Courts are authorized to make
any retroactive changes. See 18 U.S.C. §3582(c)(2). The decision by the Sentencing Commission
not to make the change retroactive suggests that the sentences rendered under the earlier version
remain reasonable and need not be reconsidered. “[I]f an amendment is not specifically listed in
U.S.S.G. §1B1.10(c), a reduction of sentence under §3582(c)(2) is not consistent with the Sentencing
Commission’s policy statement.” United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996). Even
assuming that counsel could have and should have anticipated that the Guidelines might have been
amended to eliminate the two recency points added to Sanchez’s criminal history score, given that
the change had not occurred at the time Sanchez was sentenced and given that the Sentencing
Commission did not make Amendment 742 retroactive, Sanchez does not benefit from the change.
Upon this record, Sanchez has not shown that counsel had any legal or factual basis to object to the
two recency points added to his criminal history score. Moreover, Sanchez does not dispute that the
PSR correctly calculated his criminal history points or that the two additional points applied. See
United States v. Vaughn, 995 F.2d 367, 368 (5th Cir. 1992) (failure to anticipate changes in the
sentencing guidelines does not meet any of the standards for collateral attack). “Clairvoyance is not
a required attribute to effective representation.” Nelson v. Estelle, 642 F. 2d 903, 908 (5th Cir.
14
1981); See also Green v. Johnson, 116 F.3d 1115, 1125 (5th Cir. 1997)(holding that there is no
general duty on the part of defense counsel to anticipate changes in the law).
Finally, Sanchez argues that counsel was constitutionally ineffective for failing to move for
a downward departure due to the collateral consequences of his conviction. According to Sanchez,
as a deportable alien, he was not eligible for more lenient conditions of imprisonment and not
eligible to participate in Bureau of Prison programs such as drug treatment, or early release. Here,
the record shows that Sanchez’s counsel was not deficient for failing to request a downward
departure based on his status as a deportable alien. Even assuming that counsel had made such a
request it would not have been granted since Sanchez’s status as a deportable alien was the only
ground for such a request. In United States v. Garay, 235 F.3d 230, 233-34 & n. 8 (5th Cir. 2000),
the Fifth Circuit Court of Appeals observed that even though the sentencing guidelines provide for
a downward departure on the ground that the defendant is a deportable alien, such downward
departures are proper only an extraordinary case, which are “highly infrequent.” See United States
v. Foote, 2001 WL 671465m *3-*4 (N.D. Tex. 2001) (rejecting argument by §2255 movant that
his counsel should have moved for downward departure.). Here, other than the fact that Sanchez was
a deportable alien, he has not shown that this was an extraordinary case which would have warranted
a departure under Garay, and as a result, he has not shown that he was prejudiced by counsel’s
failure to move for a downward departure based on his status as a deportable alien. The record
shows that counsel argued that Sanchez should be sentenced to the low end of the advisory guideline
range because he only returned to the United States in response to a family emergency and had no
plans to remain or return to the United States. The record further shows that Judge Harmon found
counsel’s argument persuasive and that Sanchez was sentenced to 57 months, the low end of the
15
advisory guideline sentencing range. Because Sanchez has not shown that he would have obtained
a sentencing departure based on his status as an alien had counsel moved for a reduction. Sanchez
has not shown that any alleged error prejudiced him within the meaning of Strickland. In conclusion,
Sanchez has offered no proof of how counsel’s performance was objectively deficient, and no proof
that such deficient performance prejudiced him in any way. See Strickland, 466 U.S. at 687.
Therefore, no relief is available under §2255 of his ineffective assistance of counsel claims.
III. Conclusion and Recommendation
Based on the foregoing, it is
RECOMMENDED that Movant Noe Heredia Sanchez’s §2255 Motion to Vacate, Set Aside
or Correct Sentence (Document No. 50) be DENIED.
The Clerk shall file this instrument and provide a copy to all counsel and unrepresented
parties of record. Within 14 days after being served with a copy, any party may file written
objections pursuant to 28 U.S.C. §636(b)(1)(C), Fed.R.Civ.P. 72(b), and General Order 80-5, S.D.
Texas. Failure to file objections within such period shall bar an aggrieved party from attacking
factual findings on appeal. Thomas v. Arn, 474 U.S. 140 (1985); Ware v. King, 694 F.2d 89 (5th Cir.
1982), cert. denied, 461 U.S. 930 (1983); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en
banc). Moreover, absent plain error, failure to file objections within the fourteen day period bars an
aggrieved party from attacking conclusions of law on appeal. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1429 (5th Cir. 1996). The original of any written objections
shall be filed with the United States District Clerk, P.O. Box 61010, Houston, Texas 77208.
16
Signed at Houston, Texas, this 29th day of March, 2012.
17
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