# Villegas v. United States

> District Court, N.D. Texas · January 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10671545

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** January 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10671545. Public record. Not legal advice.