Sandoval v. United States

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

GUSTAVO RUVALCABA SANDOVAL, )

)

Petitioner-Defendant, )

)

v. ) Case Nos. 18-cr-40067

) 21-cv-4157

)

)

UNITED STATES OF AMERICA, )

)

Respondent-Plaintiff. )

ORDER AND OPINION

SARA DARROW, Chief U.S. District Judge:

Now before the Court is Petitioner Gustavo Ruvalcaba Sandoval’s Motion to Vacate, Set

Aside, or Correct Sentence Under 28 U.S.C. § 2255 (d/e 74). Sandoval argues that he received

ineffective assistance of counsel, resulting in a higher sentence than he believes he should have

received. For the reasons below, the Court DENIES Petitioner’s § 2255 motion (d/e 74), and

DECLINES to issue a certificate of appealability.

I. BACKGROUND

In December 2018, Sandoval and his co-defendant Ryan Mehaffy were charged with

conspiracy to distribute, and possess with intent to distribute, at least 50 grams of actual

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). See Indictment

(d/e 1). On July 31, 2019, Sandoval pled guilty to the charge without a written plea agreement.

See July 31, 2019 Minute Entry. At the change of plea hearing, Sandoval was represented by

Attorney Jeremy S. Karlin. Sandoval testified that he was fully satisfied with the representation

and advice his counsel had given to him, that no one had threatened him in any way or forced

him to plead guilty, and that no one had made any promises in order to get him to plead guilty.

See Plea Tr. (d/e 70) at 4. Sandoval stated he understood that the possible penalties of the

offense included a mandatory minimum of ten years and up to life in prison. Id. at 5.

Mr. Karlin stated that his “best estimate” of the applicable advisory guidelines range was

“a range 135 to 168 months’ imprisonment based on a base offense level of 36. There may be

other aggravating factors that exist, but we’re not sure at this point.” Id. at 6. Sandoval affirmed

that he understood that this only represented counsel’s “best estimate” and that the Court would

not know what his advisory guideline range was until the presentence investigation report had

been prepared and any objections had been resolved. Id. at 6-7. He was further reminded that

the guidelines are advisory and that his ultimate sentence could be anywhere within the statutory

range. Id. at 7.

Next, the government recited each of the essential elements it would be required to prove,

and Sandoval acknowledged that he understood the elements to which he was pleading guilty.

See Plea Tr. (d/e 70) at 9-10. Sandoval admitted that he had conspired to distribute at least 50

grams of methamphetamine and that the lab report indicated it was above 90 percent purity. Id.

at 10-11. Sandoval also acknowledged that he was to receive money for delivering the drugs and

that one individual he agreed to distribute drugs with was co-defendant Mehaffy. Id. at 12. The

government provided an independent factual basis to support the plea. Id. at 12-14. The Court

then found:

It is the finding of the Court in the case of the United States of America vs. Mr.

Gustavo Sandoval that he is fully competent and capable of entering an informed

plea, that he is aware of the nature of the charge and the consequences of his plea,

and that his plea of guilty is a knowing and voluntary plea supported by an

independent basis in fact containing each of the essential elements of the offense.

Your plea is therefore accepted, and you are now adjudged guilty of this offense.

See Plea Tr. (d/e 70) at 14.

Next, the United States Probation Office prepared a Presentence Investigation Report in

advance of sentencing. The initial Presentence Investigation Report calculated a base offense

level of 38 and found that a four-point leadership enhancement applied. PSR (d/e 41) at ¶¶26,

29. After a three-point reduction for acceptance of responsibility, his total offense level was

calculated as 39. Id. at ¶¶ 33-35. Along with his criminal history category of I, Sandoval’s

advisory Guidelines Sentence was calculated as 262 to 327 months’ imprisonment. Id. at ¶83.

Shortly after the initial PSR was prepared, Mr. Karlin withdrew as Sandoval’s counsel

and Andrew Larson was appointed to represent Sandoval. Mr. Larson filed objections to the

PSR, specifically objecting to the leadership enhancement in paragraph 29. See Brief in Support

of Objections (d/e 42). Attorney Larson subsequently withdrew from the case, and Attorney

Andrea Jaeger was appointed to represent Sandoval. See Motion to Withdraw (d/e 51); June 9,

2020 Minute Entry (d/e 52).

Attorney Jaeger submitted a sentencing memorandum indicating that the parties had

agreed that Sandoval would receive a two-level leadership enhancement under U.S.S.G.

§ 3B1.1(c), rather than the four-level enhancement under U.S.S.G. § 3B1.1(a), and that no

objections remained. See Memorandum (d/e 58). The memorandum also requested a downward

variance, based on Sandoval’s personal characteristics and because of the lack of empirical basis

for the sentencing disparities between ice and methamphetamine mixture. Id. at 2-13.

At the sentencing hearing on September 22, 2020, defense counsel again stated that the

objections had been resolved by agreement. Sentencing Tr. (d/e 71) at 3. The Court then made

further edits to Sandoval’s PSR at paragraphs 19, 97, and 18. Id. at 4-6. Sandoval agreed that he

had no objections to the PSR that had not been raised. Id. at 6. The Court determined Sandoval

had an advisory guideline range of 210 to 262 months of imprisonment based on a total offense

level of 37 and a Criminal History Category of I. Id. at 8. The Court adopted the second revised

PSR and incorporated it into the record. Id. at 9.

The government requested a within guidelines sentence of 210 to 262 months. The

government cited the scale of the conspiracy which involved over 13 kilograms of ice

methamphetamine and three kilograms of marijuana. Sentencing Tr. (d/e 71) at 12. The

government noted that Sandoval was a leader/organizer and had cartel connections. Id. at 12-15.

Defense counsel began her commentary by highlighting Sandoval’s mitigating personal

background and circumstances. Id. at 17-19. Counsel stressed Sandoval’s lack of significant

criminal history, as he only had one criminal history point. Id. Sandoval’s counsel asked the

Court to “vary downward significantly” from the guidelines. As in her sentencing commentary,

counsel argued that the sentencing guidelines’ disparity in calculations for ice verses mixtures of

methamphetamine was not based on sound policy and that it unjustifiably increased Sandoval’s

guidelines range. Id. at 19-23.

The Court then sentenced Sandoval to 210 months of imprisonment, followed by five

years of supervised release. Id. at 41. In reaching this sentence, the Court considered the

seriousness of the offense, noting that over 13 kilograms of methamphetamine were involved and

that, as a leader/organizer of the conspiracy, Sandoval utilized sophisticated techniques to

achieve the cross-country nature of the operation. The Court also considered that Sandoval had

employed threats against a customer and that the evidence supported the supply coming from a

cartel. See Sentencing Tr. (d/e 71) at 33-34. The Court also addressed Sandoval’s personal

history and characteristics, referencing the positive aspects of Sandoval’s situation — his family

support, his children relying on him, his minor criminal history, employment background and

age. Id. at 37-38. The Court noted Sandoval’s alcohol abuse and the need for specific and

general deterrence from a sentence. Id. at 39-41. The written Judgment was entered on

September 25, 2020. See Judgment (d/e 59).

Sandoval filed a direct appeal, but Sandoval’s counsel filed a brief pursuant to Anders v.

State of Cal., 386 U.S. 738, 744 (1967), and a motion to withdraw. See United States v.

Sandoval, Case No. 20-2861 (7th Cir.), #9. On January 5, 2021, Sandoval filed a pro se

document with numerous arguments that he wanted considered by the Seventh Circuit:

A. Claims that co-defendant Mehaffy was not truthful in his statements given to

investigators;

B. Claims that Garcia introduced Mehaffy to Sandoval as someone who wanted to

buy drugs to take to Illinois;

C. Claims he should have received a variance because he was assaulted by the

agents who arrested him;

D. Claims he should not have received the leader/organizer enhancement at

sentencing; and

E. Claims of ineffective assistance of counsel.

See Seventh Circuit Docket #20-2861, #14, #15.

On May 6, 2021, the Seventh Circuit granted counsel’s motion to withdraw and

dismissed the appeal. See United States v. Sandoval, 846 F. App’x 407 (7th Cir. 2021). The

Seventh Circuit found that Sandoval could not make a non-frivolous challenge to his guilty plea

and that the district court had complied with Rule 11 of the Federal Rules of Criminal Procedure.

Id. at 408. The Seventh Circuit found that Sandoval’s sentence was procedurally correct and

substantively reasonable. Id. at 408-409. While the Seventh Circuit noted that Sandoval

proposed “challenging the factual basis for that enhancement because, he says, his co-defendant

lied about his role in the offense,” the Seventh Circuit found that Sandoval had “explicitly agreed

to the enhancement in a sentencing memorandum and again at sentencing, so he waived any right

to appeal its application.” Id. at 408. Finally, the Seventh Circuit found that Sandoval’s claims

of ineffective assistance of counsel would be better addressed in a collateral proceeding so a

more complete record could be developed. Id. at 409.

Next, Sandoval filed this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28

U.S.C. § 2255 (d/e 74) on September 20, 2021. He argues that his attorneys rendered

ineffective assistance of counsel that resulted in him getting a higher sentence. The government

filed a response (d/e 77). Sandoval has now filed a reply (d/e 78). After careful consideration,

this order now follows.

II. LEGAL STANDARD

Section 2255, “the federal prisoner’s substitute for habeas corpus,” Brown v. Rios, 696

F.3d 638, 640 (7th Cir. 2012), permits a prisoner incarcerated pursuant to an Act of Congress to

request that his sentence be vacated, set aside, or corrected if “the sentence was imposed in

violation of the Constitution or laws of the United States, or . . . the court was without

jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Relief

under § 2255 is appropriate for “an error of law that is jurisdictional, constitutional, or

constitutes a fundamental defect which inherently results in a complete miscarriage of justice.”

Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quotation marks omitted). However,

a “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the

claim from being brought in a later, appropriate proceeding under § 2255.” Massaro v. United

States, 538 U.S. 500, 509 (2003).

Sandoval’s claims arise under the Sixth Amendment. The Sixth Amendment guarantees

criminal defendants effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

684-86 (1984). Under Strickland’s two-part test, a petitioner must show both that his attorney’s

performance was deficient and that he was prejudiced as a result. Vinyard v. United States, 804

F.3d 1218, 1225 (7th Cir. 2015). Courts, however, must “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland,

466 U.S. at 690. A petitioner must also prove that he has been prejudiced by his counsel's

representation by showing “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694. Absent a sufficient showing

of both cause and prejudice, a petitioner’s claim must fail. United States v. Delgado, 936 F.2d

303, 311 (7th Cir. 1991).

III. DISCUSSION

Sandoval alleges he received ineffective assistance of counsel throughout his criminal

proceedings. He asserts that he believed he would only receive a sentence of 132 months

imprisonment if he pled guilty, and that his counsel was ineffective because she failed to allow

him to withdraw his guilty plea and failed to successfully reduce the sentencing guidelines

calculations. However, as explained below, the Court finds that Sandoval has not shown that any

of these allegations amounted to deficient conduct or that he was prejudiced as a result.

A. Sandoval Did Not Receive Ineffective Assistance of Counsel Due to Counsel’s

Inaccurate Sentencing Guidelines Estimate.

Proceeding chronologically through Sandoval’s case, the Court first turns to Sandoval’s

claim that his original lawyer, Mr. Karlin, was ineffective because the sentencing estimate he

gave at the time of the plea hearing was significantly lower than his actual sentencing guidelines

range. The Sixth Amendment right to counsel extends to the plea-bargaining process. Bridges v.

United States, 991 F.3d 793, 803 (7th Cir. 2021). “In the plea bargaining context, a reasonably

competent lawyer must attempt to learn all of the relevant facts of the case, make an estimate of

the likely sentence, and communicate the results of that analysis to the client before allowing the

client to plead guilty.” Brock-Miller v. United States, 887 F.3d 298, 308 (7th Cir. 2018).

Mistakes, nor omissions, in an attorney’s advice do not necessarily constitute ineffective

assistance of counsel. Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002). “[I]n

order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366 (1970); see also

Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The defendant must also show that to

reject the plea agreement and go to trial would have been rational under the circumstances.

Padilla v. Kentucky, 559 U.S. 356, 372 (2010); see also, Lee v. United States, 137 S. Ct. 1958,

1968 (2017) (“Courts should not upset a plea solely because of post hoc assertions from a

defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should

instead look to contemporaneous evidence to substantiate a defendant’s expressed preference.”).

Here, Sandoval claims that Mr. Karlin told him he would receive a sentence of 132

months if he pled guilty. This argument is factually foreclosed by the record of the plea hearing.

At the change of plea hearing, Mr. Karlin stated that his “best estimate” of the applicable

advisory guidelines range was “a range 135 to 168 months’ imprisonment based on a base

offense level of 36. There may be other aggravating factors that exist, but we’re not sure at this

point.” See Plea Tr. (d/e 70) at 6. The Court confirmed that Sandoval knew that this range was

only an estimate and that the actual advisory sentencing guidelines range would not be known

until the presentence investigation report was prepared and objections were resolved. Id.

Further, the Court confirmed that Sandoval knew that the Court was not bound by that range and

that his “ultimate sentence might be within that range, below that range or above that range,

keeping in mind it can’t be below the ten-year mandatory minimum.” Id. at 7. The Court is

generally permitted to rely on Sandoval’s representations at his plea hearing and Sandoval has

not advanced any compelling reason to believe he did not understand that counsel’s estimate was

only an estimate when he said he did under oath at the plea hearing. See Thompson v. United

States, 732 F.3d 826, 829-30 (7th Cir. 2013); Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Accordingly, Sandoval’s claim that his attorney told him he would receive a 132-month

imprisonment sentence without the understanding that it was an estimate is refuted by the plea

record.

Moreover, Sandoval has not shown that counsel’s estimate was unreasonable. Counsel’s

estimate assumed a total offense level of 33 after a three-point reduction for acceptance of

responsibility. As it turned out, Sandoval’s base offense level was two points higher than

counsel estimated and an aggravating factor did exist: Sandoval qualified for a two-point

leadership enhancement. This bumped his total offense level to 37 and resulted in an advisory

guideline range of 210 to 262 months of imprisonment. While counsel’s estimate was lower than

the ultimate sentence, counsel explicitly considered and stated at the change of plea hearing that

aggravating factors may exist that could increase his sentence.

Moreover, Sandoval has not presented any reason to believe that he would not have pled

guilty despite counsel’s incorrect estimate—making him unable to show prejudice. He does not

advance any reason why he believes he could have been acquitted at trial, or why it otherwise

would have been worth the risk of losing the three-point reduction for acceptance of

responsibility by proceeding to trial. While Sandoval might believe that at trial he would have

been able to show that his co-defendant was lying and that the leadership enhancement would

not apply, any such benefit would have been outweighed by the risk of losing his acceptance of

responsibly points and, as discussed below, the possibly of a higher base offense based on his

version of events. Accordingly, the Court finds that the record refutes Sandoval’s claim that his

attorney was ineffective in his pre-plea sentencing guidelines estimate.

B. Sandoval’s Counsel Was Not Ineffective for Refusing to File a Motion to

Withdraw his Guilty Plea.

Sandoval next argues that he wanted to withdraw his plea, but his counsel told him he

was not allowed. He alleges he wanted to see his discovery file, that he could prove his co-

defendant was lying, that he had witnesses to prove his co-defendant was lying, that the

leadership role was not right. Sandoval’s motion does not coherently state sufficient details to

show what advice his counsel gave him that he considers defective. He does not state what he

believes was in his discovery file that would have been useful, how he could prove his co-

defendant was lying, or to what the witnesses would have attested. Counsel’s affidavit, however,

gives some context: Counsel states that she had multiple discussions with Sandoval regarding

withdrawing his plea, why it would not likely have been granted, and how it would certainly

have resulted in a worse outcome at trial. See Jaegar Affidavit (d/e 77-1) at 6-7. Counsel also

discussed Sandoval’s version of the facts with him and why he believed government witnesses

were lying. Id. The government was included in some of these discussions and found its

witnesses to be credible. Id. at 7. Regardless, the government found that because Sandoval had

already admitted his factual guilt by pleading guilty, the details he disagreed with were

immaterial and did not impact his sentencing guidelines. Counsel also noted that Sandoval’s

version of events involved a higher drug quantity than known by the government and attributed

to him in the PSR. Id. She states that persisting in his version of events would have subjected

him to a higher guidelines range. Id. Counsel states that as a strategic matter she advised

Sandoval not to persist in this factual dispute given “the lack of any legal impact, the likelihood

of negative consequences which would place [Sandoval] in a worse position and likely lead to a

longer sentence, and the lack of evidence to support [Sandoval’s] assertions in a matter which

could overcome the low standard of proof.” Id. at 7. And Sandoval agreed with this strategy.

Id.

Sandoval’s reply generally states that he believes Ms. Jaegar is lying. Sandoval insists

that Ms. Jaegar told him he could not withdraw his guilty plea, but a previous lawyer said he

could. Either way Sandoval would not have been successful in withdrawing his guilty plea, so

any misstated law by Ms. Jaeger was not prejudicial. A defendant may withdraw a plea of guilty

after a court accepts the plea but before imposition of the sentence if the defendant can show a

“fair and just reason” for withdraw. Fed. R. Crim. P. 11(d)(2)(B). However, the right is not

absolute, and, as here, when a defendant “wishes to withdraw his plea after he states at a Rule 11

hearing that it was given freely and knowingly, “he faces an uphill battle in persuading the judge

that his purported reason ... is ‘fair and just.’” United States v. Salgado-Ocampo, 159 F.3d 322,

324–25 (7th Cir. 1998), as amended (Nov. 4, 1998).

Here, Sandoval claims he sought to withdraw his plea agreement because he did not

know that his co-defendant would implicate him as a leader in the conspiracy. Because his co-

defendant did so, his sentencing guidelines range was higher and it ultimately led to a higher

sentence than he expected. However, the Seventh Circuit has held that a defendant can offer a

knowing and voluntary plea without having received and reviewed full discovery from the

government. See United States v. Williams, No. 18 CR 602, 2021 WL 5578751, at *3 (N.D. Ill.

Nov. 30, 2021) (citing United States v. Graf, 827 F.3d 581, 584 (7th Cir. 2016); see also U.S. v.

Underwood, 174 F.3d 850, 853-854 (7th Cir. 1999) (rejecting argument that a defendant “should

be able to take back his guilty plea if, after learning what evidence the government had available

for trial, [the defendant] takes the position that the government's evidence against him is

false”); United States v. Seybold, 979 F.2d 582, 587 (7th Cir. 1992) (Rule 11 “does not require

the trial judge at the plea hearing to air all of the government's evidence”)). While Sandoval

might not have known that his co-defendant would later claim he was the leader, this alone is

insufficient to show a “fair and just” reason for withdraw. Accordingly, the Court finds that even

if Ms. Jaegar did tell him specifically that he cannot withdraw his plea (not just that it would be

unlikely to succeed), this advice did not cause him any prejudice.

C. Sandoval Did Not Receive Ineffective Assistance of Counsel at Sentencing.

Finally, Sandoval has advanced various reasons why he would have received a lower

sentence had Ms. Jaegar provided better representation. First, Sandoval argues that Ms. Jaegar,

should have presented his claims that law enforcement used excessive force on him to the Court.

Sandoval does not explain what benefit he believed he would receive by bringing these claims to

the Court in his criminal proceeding rather than a separate civil rights action. See also, United

States v. Shaffier, 722 F. App'x 582, 585 (7th Cir. 2018) (allegations regarding pre-trial detention

treatment “are more appropriate for a civil lawsuit than a direct appeal from his criminal

conviction.”). In his reply, Sandoval writes that he read in a book called “Busted by the Feds”

that he can get time off for getting injured at the time of his arrest. See Reply (d/e 78) at 3.

However, there is no general legal basis that would make this true. There is nothing in the

sentencing guidelines that would warrant a departure based on arrest-related injuries. And, while

the § 3553 sentencing factors require courts to consider the defendant’s medical needs when

crafting a sentence, see 18 U.S.C. § 3553(a)(2)(D), Sandoval has not indicated that he had any

ongoing relevant medical needs from any arrest-related injuries that would have impacted his

imprisonment sentence. Accordingly, Sandoval has not shown that defense counsel’s advice to

focus on other mitigating factors in her sentencing commentary was deficient.

Moreover, in counsel’s affidavit, she states that after discussing the issue multiple times,

Sandoval told his counsel that “he wanted to let this issue go, he did not want to mention this

issue, and he wanted to focus on his future plans as his basis for allocution.” Jaegar Affidavit

(d/e 77-1) at 5. While Sandoval argues that his former counsel generally lied in her affidavit, he

did not state she was lying about this statement. And Sandoval chose not to mention the

allegations in his allocution, despite that option remaining available to him. Accordingly, the

Court finds that counsel’s advice to not raise his excessive force claim in his criminal proceeding

was neither deficient nor prejudicial.

Next, Sandoval argues that counsel failed to object to the leadership enhancement at

sentencing. This objection was largely addressed above with regards to Sandoval’s claim that he

should have been able to withdraw his plea. Again, Sandoval does not elaborate on the basis for

his objection to the application of this enhancement (other than his argument that his co-

defendant was lying in his previous ground). Moreover, the record shows that counsel did object

to the leadership enhancement and obtained governmental agreement for a two-level

enhancement instead of a four-level enhancement. At the sentencing hearing Sandoval

confirmed that he had no further objections.

The Court also notes that, as further expressed in his reply, at the root of Sandoval’s 2255

challenge is his belief that his co-defendant was lying and that, as a result of these lies, his co-

defendant got a lower sentence than he deserved, and Sandoval received a higher sentence than

he deserved. However, Sandoval has not disputed that his version of events would have led to

him being held accountable for a higher drug quantity. Sandoval takes issue with the statement

that his counsel and the government allegedly made that “it doesn’t matter if [Sandoval’s co-

defendant] was lying.” From the record, however, this statement likely only meant that whether

the co-defendant was lying did not matter to Sandoval’s sentencing guidelines calculation. At

best, if Sandoval’s version of events is true, perhaps Sandoval’s co-defendant received a

sentence lower than what he should have received. Sandoval has not shown that persisting in

trying to show his co-defendant was lying could have resulted in a lower sentencing range for

Sandoval. Nor has he provided any actual evidence that his co-defendant was lying (or even

details on what those alleged lies were or a summary of Sandoval’s “version of events”).

Sandoval has not shown that his attorney was ineffective for mitigating against the risk of the

Court finding the higher enhancement applies and/or the risk of a higher base offense level by

negotiating with the government for a lesser enhancement.

Lastly, Sandoval argues that his attorney should have argued for the application of the

safety-valve reduction. However, there were no non-frivolous arguments that counsel could

make that he would have qualified for the safety-valve. For qualifying offenses, the safety-valve

provision under 18 U.S.C. § 3553(f)(1) requires the Court to impose a sentence “without regard

to any statutory minimum sentence” if the Court finds at sentencing that the requirements of

§ 3553(f)(1)-(5) are met. While Sandoval was convicted of a qualifying offense and met some

safety valve requirements, he did not qualify for the safety valve for three reasons: (1) he used

credible threats of violence in connection with the offense (§ 3553(f)(2)); (2) he received a

leadership enhancement (§ 3553(f)(4)); and (3) he failed to provide complete cooperation with

the government and had allegedly lied in his proffer efforts (§ 3553(f)(5)). While Sandoval

argues that he should not have gotten the leadership enhancement and insists that he was not the

one lying to the government, he does not dispute that he used credible threats of violence in

connection with the offense. Accordingly, the Court finds that Sandoval’s counsel was not

ineffective for failing to make a frivolous argument. See United States v. Evans, 92 F.3d 540,

544 (7th Cir. 1996) (counsel's refusal to make frivolous argument “can never be a ground for

arguing ineffective assistance of counsel”); Carpenter v. United States, 492 F. Supp. 2d 912, 922

(N.D. Ill. 2007). Sandoval’s claim of ineffective assistance of counsel at sentencing, therefore,

must be denied as well.

IV. EVIDENTIARY HEARING

An evidentiary hearing is not always necessary in § 2255 cases. See Bruce v. United

States, 256 F.3d 592, 597 (7th Cir. 2001). However, “[a] hearing is required unless the record

conclusively shows that the movant is not entitled to relief.” Hicks v. United States, 886 F.3d

648, 650 (7th Cir. 2018); 28 U.S.C. § 2255(b). Here, the Court finds that an evidentiary hearing

because, assuming his factual claims are true, Sandoval is still not entitled to relief.

V. CERTIFICATE OF APPEALABILITY

If Petitioner seeks to appeal this decision, he must first obtain a certificate of

appealability. See 28 U.S.C. § 2253(c) (providing that an appeal may not be taken to the court of

appeals from the final order in a § 2255 proceeding unless a circuit justice or judge issues a

certificate of appealability). A certificate of appealability may issue only if Petitioner has made a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a

claim is resolved on procedural grounds, a certificate of appealability should issue only if

reasonable jurists could disagree about the merits of the underlying constitutional claim and

about whether the procedural ruling was correct. Flores-Ramirez v. Foster, 811 F.3d 861, 865

(7th Cir. 2016) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the Court does not

find that reasonable jurists could disagree that Petitioner’s claims are meritless. Accordingly, the

Court declines to issue a certificate of appealability.

VI. CONCLUSION

For the reasons stated, the Court DENIES Petitioner Sandoval’s Motion to Vacate, Set

Aside or Correct Sentence Under 28 U.S.C. § 2255 (d/e 74). The Court DECLINES to issue a

certificate of appealability and declines to hold an evidentiary hearing. The Clerk is DIRECTED

and enter the Judgment in favor of Respondent and close the accompanying civil case, 21-cv-

4157. This case is CLOSED.

Signed on this 21st day of July 2022.

/s/ Sara Darrow

Sara Darrow

Chief United States District Judge