Villegas v. United States

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

IVAN VILLEGAS,

Movant,

v. No. 4:23-cv-0590-P

(No. 4:21-cr-0087-P)

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

Came on for consideration the motion of Ivan Villegas, Movant,

pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by

a person in federal custody. The Court, having considered the motion,

the response, the record, including the record in the underlying criminal

case, and applicable authorities, concludes that the motion must be

DENIED.

BACKGROUND

The record in the underlying criminal case reflects the following:

On April 14, 2021, Movant was named in a two-count indictment

charging him in count one with possession with intent to distribute 500

grams or more of a mixture and substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A), and in count two with possession of a firearm in relation to a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). CR ECF

No. 11. Movant entered a plea of not guilty. CR ECF No. 15. Thereafter,

Movant was named in a one-count superseding information charging

him with possession with intent to distribute 50 grams or more of a

mixture and substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).

CR ECF No. 16. Movant and his counsel signed a waiver of indictment,

CR ECF No. 21, a plea agreement with waiver of right to appeal, CR

ECF No. 22, and a factual resume. CR ECF No. 23. Movant’s plea

agreement reflected that he understood the nature and elements of the

offense to which he was pleading guilty and agreed that the factual

resume he signed was true and would be submitted as evidence; that he

faced a sentence of at least five years and not more than forty years; that

the sentence was wholly within the Court’s discretion, that no one could

predict the outcome of the Court’s consideration of the guidelines, and

that Movant would not be allowed to withdraw his plea if his sentence

was higher than expected; that the plea was made voluntarily and freely

and was not the result of force, threats, or promises; that Movant waived

his right to appeal and to contest his conviction and sentence in

collateral proceedings except in limited circumstances; and, Movant had

thoroughly reviewed all legal and factual aspects of the case with his

counsel and was satisfied with counsel’s representation. CR ECF 22.

Movant’s factual resume set forth the offense charged by the

superseding information, the penalties Movant faced, the elements of

the offense, and the stipulated facts establishing that Movant had

committed the offense. CR ECF No. 23.

On May 12, 2021, Movant appeared before the Court to enter his plea

of guilty to the superseding information. CR ECF No. 45. Movant

testified under oath that: He had received and read the superseding

information and fully understood the nature of the charge and the

essential elements and that he committed each one; he read, signed, and

understood the plea agreement; he knowingly and voluntarily waived

his right to appeal as set forth in the plea agreement; other than the

plea agreement, no other promise or assurance of any kind was made to

induce him to enter a plea of guilty; he understood that he faced a term

of imprisonment of not less than five years or more than 40; he

understood he could not withdraw his plea if his sentence was more

severe than expected; that he was guilty; and he had read, signed, and

fully understood his factual resume and the facts contained in it were

true and correct. Id.

The probation officer prepared the presentence report (“PSR”), which

reflected that Movant’s base offense level was 38. CR ECF No. 28, ¶ 22.

He received two-level enhancements for possession of firearms, id. ¶ 23,

importation, id. ¶ 24, and for maintaining a drug premises. Id. ¶ 25. He

received a two-level and a one-level reduction for acceptance of

responsibility. Id. ¶¶ 31, 32. Based on a total offense level of 41 and a

criminal history category of I, Movant’s guideline range was 324 to 405

months. Id. ¶ 65. Movant filed objections, CR ECF No. 30, and the

probation officer prepared an addendum to the PSR, noting that the

objection did not affect the guideline calculation. CR ECF No. 32.

The Court sentenced Movant to a term of imprisonment of 275

months, a downward variance as explained at sentencing. CR ECF No.

39; CR ECF No. 44. Movant filed a notice of appeal, despite having

waived the right to do so. CR ECF No. 41. His counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and the United

States Court of Appeals for the Fifth Circuit concurred that the appeal

presented no nonfrivolous issue for appellate review and dismissed it.

CR ECF No. 47.

GROUNDS OF THE MOTION

Movant sets forth two grounds in his motion, ECF No. 1 at 7,

although an additional ground appears to be contained in his supporting

memorandum. ECF No. 2-1. The Court understands Movant to urge

that: (1) The government relied on perjured testimony, rendering his

plea involuntary. Id. at 12–19. (2) His sentence violates the Due Process

clause. Id. at 29–33. And, (3) Movant received ineffective assistance of

counsel. Id. at 19–29, 33–42.

APPLICABLE LEGAL STANDARDS

A. 28 U.S.C. § 2255

After conviction and exhaustion, or waiver, of any right to appeal,

courts are entitled to presume that a defendant stands fairly and finally

convicted. United States v. Frady, 456 U.S. 152, 164–65 (1982); United

States v. Shaid, 937 F.2d 228, 231–32 (5th Cir. 1991). A defendant can

challenge his conviction or sentence after it is presumed final on issues

of constitutional or jurisdictional magnitude only, and may not raise an

issue for the first time on collateral review without showing both “cause”

for his procedural default and “actual prejudice” resulting from the

errors. Shaid, 937 F.2d at 232.

Section 2255 does not offer recourse to all who suffer trial errors. It

is reserved for transgressions of constitutional rights and other narrow

injuries that could not have been raised on direct appeal and would, if

condoned, result in a complete miscarriage of justice. United States v.

Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other words,

a writ of habeas corpus will not be allowed to do service for an appeal.

Davis v. United States, 417 U.S. 333, 345 (1974); United States v.

Placente, 81 F.3d 555, 558 (5th Cir. 1996). Further, if issues “are raised

and considered on direct appeal, a defendant is thereafter precluded

from urging the same issues in a later collateral attack.” Moore v. United

States, 598 F.2d 439, 441 (5th Cir. 1979) (citing Buckelew v. United

States, 575 F.2d 515, 517–18 (5th Cir. 1978)).

B. Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, a movant

must show that (1) counsel’s performance fell below an objective

standard of reasonableness and (2) there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different. Strickland v. Washington, 466

U.S. 668, 687 (1984); see also Missouri v. Frye, 566 U.S. 133, 147 (2012).

“[A] court need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant as a

result of the alleged deficiencies.” Strickland, 466 U.S. at 697; see also

United States v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000). “The

likelihood of a different result must be substantial, not just conceivable,”

Harrington v. Richter, 562 U.S. 86, 112 (2011), and a movant must prove

that counsel’s errors “so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced

a just result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting

Strickland, 466 U.S. at 686). Judicial scrutiny of this type of claim must

be highly deferential and the defendant must overcome a strong

presumption that his counsel’s conduct falls within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689. Simply

making conclusory allegations of deficient performance and prejudice is

not sufficient to meet the Strickland test. Miller v. Johnson, 200 F.3d

274, 282 (5th Cir. 2000).

ANALYSIS

In his first ground, Movant argues that prosecutorial misconduct

rendered his plea invalid. ECF No. 1 at 7; ECF No. 2-1 at 12–19. His

particular concern is that DEA agents falsely identified him as a person

known to them as “Dandy.” As best the Court can tell, everything about

which Movant complains occurred prior to entry of Movant’s plea. Yet

he did not raise this ground on direct appeal. (It was waived in any event

pursuant to the plea agreement.) He has not shown that he is entitled

to pursue it here. United States v. Kallestad, 236 F.3d 225, 227 (5th Cir.

2000) (movant must show cause and prejudice to pursue an issue that

was not raised on direct appeal); Shaid, 937 F.2d at 232 (same). Even

had the ground not been defaulted, Movant could not prevail. To

demonstrate a violation under Napue v. Illinois, 360 U.S. 264 (1959),

Movant must show that (1) the particular testimony was false, (2) the

government knew it was false, and (3) the testimony was material.

United States v. Stanford, 823 F.3d 814, 838–39 (5th Cir. 2016); Reed v.

Quarterman, 504 F.3d 465, 473 (5th Cir. 2007). Movant offers nothing

more than his own statements to attempt to show that the testimony

was false and that the government knew it was false. But, even if he

could demonstrate the first and second elements, he simply has not

shown that the testimony was in any way material. Movant pled guilty

and was held responsible only for his own conduct. He testified under

oath that he was pleading guilty because he was guilty. He had

possession of the drugs for which he was held accountable. He also had

possession of firearms along with the drugs found at his apartment. The

name by which he was known is irrelevant.

Referring to Alleyne v. United States, 570 U.S. 99 (2013), and

Apprendi v. New Jersey, 530 U.S. 466 (2000), Movant alleges that his

sentence violates Due Process because it was based on facts not

presented to a jury. ECF No. 2-1 at 29–33. Again, Movant waived the

right to pursue this ground on appeal. CR ECF 22. The ground is also

procedurally defaulted and Movant has not demonstrated cause and

prejudice or actual innocence. United States v. Vargas-Soto, 35 F.4th

979, 993 (5th Cir. 2022). And, in any event, neither Alleyne nor Apprendi

applies to application of the sentencing guidelines; rather, the Court

determines the guideline range based on facts found by a preponderance

of evidence. United States v. Leontaritis, 977 F.3d 447, 451 (5th Cir.

2020). Because the claim would have been meritless, counsel could not

have been ineffective in failing to raise it on appeal, if that is Movant’s

contention. United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).

Most of the remainder of Movant’s allegations revolve around alleged

ineffective assistance of counsel, which he alleges resulted in his entry

of a plea that was not knowing, voluntary, or intelligent. ECF No. 2-2 at

19–29, 33–41. First, he complains that counsel failed to “undertake a

complete investigation” of matters such as the false allegation that

Movant was “Dandy.” One who alleges failure to investigate must allege

with specificity what the investigation would have revealed and now it

would have altered the outcome of the case. Miller v. Dretke, 420 F.3d

356, 361 (5th Cir. 2005); United States v. Green, 882 F.2d 999, 1003 (5th

Cir. 1989). Here, Movant just generally complains that counsel failed to

prepare a defense, “to prepare in advance how to counter damaging

testimony introduced by the prosecution,” ECF No. 2-1 at 22, and to

“effectively investigate.” Id. Even assuming a failure to investigate, and

there is no reason to believe that was the case, Movant has not shown

how any investigation would have altered the outcome of the case. The

record reflects that Movant reached a plea agreement early in the case.

Obviously, counsel persuaded the government to proceed with a

superseding information rather than the two-count indictment and

Movant benefitted greatly as a result.

Next, Movant alleges that his plea was not knowing, intelligent, or

voluntary because counsel promised him that he would receive a

sentence of not more than five years. ECF No. 2-1 at 23. To prevail on

this ground, Movant must prove “(1) the exact terms of the alleged

promise, (2) exactly when, where, and by whom the promise was made,

and (3) the precise identity of an eyewitness to the promise.” United

States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). More than mere

contradiction of his testimony in court is required. United States v. Reed,

719 F.3d 369, 373 (5th Cir. 2013). Typically, the necessary proof is

supplied by affidavits of reliable third parties. Id.; Cervantes, 132 F.3d

at 1110. Here, Movant does not identify any eyewitnesses or present any

independent evidence.

Any allegation that Movant’s plea was not knowing and voluntary is

belied by the record. Movant testified under oath that he committed each

of the elements of the offense and that he was, in fact, guilty. Further,

he testified that no one made any promises or threats or otherwise

coerced him to plead guilty. And, he understood that his sentence would

be no less than five years or more than forty years. Movant’s solemn

declarations in open court carry a strong presumption of verity.

Blackledge v. Allison, 431 U.S. 63, 74 (1977). His factual resume and

plea agreement are likewise entitled to that presumption. United States

v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994); Hobbs v. Blackburn, 752 F.2d

1079, 1081 (5th Cir. 1985). Movant’s guilty plea was knowing and

voluntary and made with sufficient awareness of the relevant

circumstances and likely consequences. Bradshaw v. Stumpf, 545 U.S.

175, 183 (2005). Movant has failed to provide any independent evidence

in support of his contentions that are at variance with the statements

he made, or answers he gave, while under oath at the arraignment

hearing on the superseding information.

Even if Movant could show that his counsel’s conduct fell below an

objective standard of professional reasonableness, and he cannot, he has

not shown that he was prejudiced as a result. In a case like this one,

where Movant entered a guilty plea, he must show that there is a

reasonable probability that, but for counsel’s errors, he would have

insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In

hindsight, Movant argues that he would not have entered a plea of guilty

and would have gone to trial. But “[c]ourts 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.” Lee v. United States,

582 U.S. 357, 369 (2017). Instead, courts look to contemporaneous

evidence to substantiate a defendant’s expressed preferences. Id.;

United States v. Valdez, 973 F.3d 396, 402–03 (5th Cir. 2020). Here,

Movant has presented nothing and the record does not reflect that he

would have gone to trial. The transcript of the arraignment on the

superseding information clearly reflects that the plea was knowing,

voluntary, and intelligent. At no time did Movant express any

dissatisfaction with his attorney or move to have him withdrawn. The

evidence against him was overwhelming. Drugs were recovered from his

vehicle and from his home, where firearms were also located. He

confessed to law enforcement immediately. He pled guilty within two

months of his arrest. There is simply no reason to believe that he would

have gone to trial.

Movant also complains that counsel failed to file various objections

to the PSR. First, he alleges that counsel should have objected to the

PSR’s use of methamphetamine (actual) in calculating his drug

quantity. ECF No. 2-1 at 33. His argument is based on the mistaken

premise that the particular substance had to be identified in the

indictment and a jury had to determine that the substance was

methamphetamine (actual). Here, the probation officer correctly

calculated the amount of the substance for which Movant was held

responsible. See ECF No. 12 at 17–18. Movant’s filed a sentencing

memorandum noting the disparities in sentencing for different types of

methamphetamine and arguing that Movant should receive a downward

variance. CR ECF No. 34. The Court agreed. Rather that being harmed,

Movant benefitted from counsel’s actions.

Movant next argues that counsel should have objected to the

firearms enhancement. ECF No. 2-1 at 34–35. As Movant admits, the

guns were found in his apartment where additional drugs were found.

The mere presence of a firearm can heighten the danger of drug

trafficking. United States v. Paulk, 917 F.2d 879, 882 (5th Cir. 1990).

Whether a gun is loaded or inoperable is not dispositive. Id. The firearms

enhancement applies if weapons are present unless it is clearly

improbable that they were connected with the offense. USSG

§ 2D1.1(b)(1), cmt. n. 11(A). The enhancement applies if a weapon is

found in the same location where drugs or drug paraphernalia are stored

or where part of the transaction occurred. United States v. Jacquinot,

258 F.3d 423, 430 (5th Cir. 2001). Counsel cannot have been ineffective

for failing to raise a meritless issue. United States v. Kimler, 167 F.3d

889, 893 (5th Cir. 1999).

Movant argues that counsel was ineffective for failing to object to the

importation enhancement. He offers only the conclusory argument that

the records do not prove that he knew the drugs were imported. ECF

No. 2-1 at 35. Application of the enhancement does not depend upon

proof of actual knowledge. United States v. Serfass, 684 F.3d 548, 550

(5th Cir. 2012). Again, counsel was not ineffective in failing to raise a

frivolous issue. Kimler, 167 F.3d at 893.

Movant argues that counsel was ineffective for failing to challenge

the drug premises enhancement. ECF No. 2-1 at 35–36. Any such

objection would have been frivolous inasmuch as methamphetamine,

liquid methamphetamine, and chemicals and containers used to convert

liquid to crystal were found at Movant’s apartment. CR ECF No. 28,

¶ 14.

Movant argues that counsel was ineffective for failing to argue for a

minor-role reduction. ECF No. 2-1 at 37. As Movant admits, to be eligible

for such a reduction, he must show that his conduct was less culpable

than most other participants. Id. Here, there were no other participants

charged in the offense. Movant identifies only two other persons

involved. Further, Movant was responsible for 7.2 kilograms of

methamphetamine and had possession of chemicals and containers used

to convert liquid to crystal. These facts do not support the contention

that he was a minor participant in any event. Any claim to a minor-role

adjustment would have been frivolous.

Movant argues that counsel was ineffective in failing to seek

application of the safety-valve provision. ECF No. 2-1 at 38–41. For the

reasons previously discussed, the firearms enhancement was properly

applied. Movant did not qualify for the safety-valve.

In addition, Movant complains that counsel was ineffective for failing

to comply with Movant’s instruction to file a motion to withdraw his

guilty plea after he was sentenced. ECF No. 2-1 at 37. The allegation is

conclusory and does not assert a constitutional claim. Miller, 200 F.3d

at 282. In any event, Movant did not have a right to withdraw the plea,

as he acknowledged at arraignment. CR ECF No. 45. Withdrawal of a

plea rests within the court’s sound discretion. United States v. Clark,

931 F.2d 292, 294 (5th Cir. 1991); United States v. Daniel, 866 F.2d 749,

751 (5th Cir. 1989). Among the factors to be considered in considering a

motion to withdraw a plea are whether: the defendant has asserted his

innocence, the government would suffer prejudice, the defendant has

delayed in filing his motion, the withdrawal would substantially

inconvenience the court, the close assistance of counsel was present, the

original plea was knowing and voluntary, and the withdrawal would

waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44

(5th Cir. 1984). No factor is dispositive and the defendant bears the

burden of establishing a “fair and just reason.” United States v.

Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001). Movant does not even

discuss these factors.

Finally, Movant complains that his appellate counsel provided

ineffective assistance. ECF No. 2-1 at 41—42. For the reasons previously

discussed, Movant has not shown that he had any meritorious issue to

present on appeal. Moreover, Movant had waived the right to appeal and

has made no attempt to show that the waiver was invalid. CR ECF No.

22. Nor has he shown that anything his appellate counsel did or failed

to do entitles him to any relief.

CONCLUSION

For the reasons discussed, Movant’s motion under Section 2255 is

DENIED.

Further, for the reasons discussed herein, pursuant to 28 U.S.C.

§ 2553(c), a certificate of appealability is DENIED.

SO ORDERED on this 12th day of January 2024.

MARK T. PITTMAN

UNITED STATES DISTRICT JUDGE

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