Vergara

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOHN VERGARA,

Movant, Case No. 8:25-cv-3097-MSS-AAS

v. Crim. Case No. 8:22-cr-293-MSS-AAS

UNITED STATES OF AMERICA,

Respondent.

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O R D E R

Vergara filed a motion to vacate, set aside, or correct a sentence under 28 U.S.C.

§ 2255 challenging his conviction for conspiracy to possess with intent to distribute

five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of

the United States. (Doc. 1 and Crim. Doc. 129) The Court reviews the motion for

sufficiency. Rule 4(b), Rules Governing Section 2255 Proceedings.

Timeliness

A one-year statute of limitation applies to a Section 2255 motion. 28 U.S.C.

§ 2255(f). The limitation starts “the date on which the judgment of conviction becomes

final.” 28 U.S.C. § 2255(f)(1). On September 6, 2023, the judgment entered in

Vergara’s criminal case. (Crim. Doc. 129) Because Vergara did not appeal, the

judgment became final fourteen days later, when the time to appeal expired —

September 20, 2023. Fed. R. App. P. 4(b)(1)(A)(i). The limitation started to run the

next day. Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011). The limitation

ran and expired on September 21, 2024. On November 3, 2025, Vergara placed in the

hands of prison officials for mailing the Section 2255 motion. (Doc. 1 at 5)

Consequently, the Section 2255 motion is untimely.

Ground One

Vergara asserts that trial counsel deficiently performed by not moving for a

reduction in his sentence under Amendment 821, which amended Section 4C1.1,

United States Sentencing Guidelines. (Doc. 1 at 3)

On November 1, 2023, Part B of Amendment 821 amended Section 4C1.1(a),

by authorizing a two-level downward adjustment if the defendant meets criteria

enumerated in the subsection. Two months earlier, on September 6, 2023, Vergara’s

sentencing occurred. (Crim. Doc. 129) Because Amendment 821 was not effective at

the time of Vergara’s sentencing and because a district judge evaluates trial counsel’s

performance from his perspective at the time of the conduct, trial counsel did not

deficiently perform. Strickland, 466 U.S. at 689.

Also, Vergara filed a motion to reduce his sentence under Amendment 821

(Crim. Docs. 133, 135, and 144), and the Court denied the motion as follows

(Crim. Doc. 148 at 1):

The Court need not determine whether Defendant meets

these criteria because a reduction of his sentence would be

inconsistent with the applicable policy statements for

Amendment 821. Retroactive application of the

Amendment would lower Defendant’s applicable guideline

range to 135 to 168 months; however, Defendant already

received a sentence that was equal to or less than the

minimum of the amended guideline range as adjusted by a

comparable substantial assistance departure, if applicable.

At the time of sentencing, Defendant’s applicable guideline

range was 168 to 210 months, but Defendant was sentenced

to a term of 78 months.

Pursuant to U.S.S.G. §1B1.10(b)(2)(A), except as provided

in U.S.S.G. §1B1.10(b)(2)(B), the Court shall not reduce

Defendant’s term of imprisonment under 18 U.S.C.

§ 3582(c)(2) and §1B1.10 to a term that is less than the

minimum of the amended guideline range. Hence,

Defendant is not eligible for an additional reduction.

Because a motion to reduce Vergara’s sentence would not have succeeded, trial

counsel did not deficiently perform. Pinkney v. Sec’y, Dep’t Corrs., 876 F.3d 1290, 1297

(11th Cir. 2017) (“[A]n attorney will not be held to have performed deficiently for

failing to perform a futile act, one that would not have gotten his client any relief.”).

Ground One is DENIED.

Ground Two

Vergara asserts that trial counsel deficiently performed by not moving to dismiss

the indictment based on the racial composition of the grand jury. (Doc. 1 at 2–3)

“‘The Sixth Amendment guarantees a criminal defendant the right to be

indicted and tried by juries drawn from a fair cross-section of the community.’” United

States v. Clarke, 562 F.3d 1158, 1163 (11th Cir. 2009) (quoting United States v. Grisham,

63 F.3d 1074, 1078 (11th Cir. 1995)). “A defendant establishes a prima facie violation

of the fair-cross-section requirement by showing that: (1) the allegedly excluded group

is a ‘distinctive group in the community’; (2) the representation of this group in the

venire from which the jury was selected was not ‘fair and reasonable in relation to the

number of such persons in the community’; and (3) the under-representation was due

to ‘systematic exclusion of the group in the jury-selection process.’” Clarke, 562 F.3d

at 1163 (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)).

Vergara contends that “[trial counsel] did not take [Vergara’s] commands to

challenge the [ethnic] makeup [of] the grand jury to see if any Spanish or Black people

sit on the grand jury.” (Doc. 1 at 2) Because Vergara speculates that a distinctive group

of the community was systematically excluded from the grand jury selection process,

his claim is meritless. United States v. Kennedy, 557 F. Supp. 2d 1311, 1317 (M.D. Fla.

2008) (“Defendant’s bald assertion that certain distinctive groups in the Gainesville

Division are underrepresented does nothing to prove that counsel was ineffective in

failing to challenge either the grand jury or petit venire, as he has offered no proof, as

opposed to speculation . . . .”).

Also, even if a motion to dismiss the indictment based on the racial composition

of the grand jury would have succeeded, the Court would have dismissed the

indictment without prejudice. If the Court dismissed the indictment without prejudice,

the United States could obtain a new indictment from a new grand jury correctly

drawn from a fair cross-section of the community.1 United States v. Blair, 25 F. Supp.

2d 781, 783 (E.D. Mich. 1998) (“Blair did timely object to the selection of the grand

jury and sought dismissal based on the defects in the grand jury selection. . . . [T]he

1 The indictment, which was filed on August 17, 2022, alleged that Vergara committed

the drug offenses on July 31, 2022. (Doc. 1 at 1) A five-year statute of limitation applies

to a non-capital federal crime. 18 U.S.C. § 3282(a). The filing of the indictment tolls

the limitation, and tolling extends to six months after dismissal of an indictment

without prejudice. 18 U.S.C. § 3288.

fact that there was a ‘defect’ in the original indictment, which was dismissed without

prejudice, does not preclude the government from seeking and obtaining a superseding

indictment.”). See also United States v. Slough, 679 F. Supp. 2d 55, 61 (D.D.C. 2010)

(“[D]ismissal without prejudice is ordinarily the appropriate remedy for prejudicial

prosecutorial misconduct during grand jury proceedings.”).

Vergara faced a life sentence for the drug offenses charged in the indictment.

21 U.S.C. § 960(b)(1)(B). The factual basis for Vergara’s plea demonstrates that a team

with the United States Coast Guard discovered Vergara and two other males on a

low-profile vessel in international waters near the coast of Colombia. (Doc. 93 at 13)

On the vessel, coast guardsmen discovered sixty-five bales of cocaine that weighed

1,289 kilograms. (Doc. 93 at 14) Consequently, Vergara cannot demonstrate

“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

(1985). Diveroli v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015) (“‘[T]o obtain

relief on this type of claim, a petitioner must convince the court that a decision to reject

the plea bargain would have been rational under the circumstances.’”) (quoting Padilla

v. Kentucky, 559 U.S. 356, 372 (2010)).

Ground Two is DENIED.

Accordingly, Vergara’s Section 2255 motion (Doc. 1) is DENIED. The Clerk is

DIRECTED to enter a judgment against Vergara, DOCKET a copy of this Order in

the criminal action, and CLOSE this case.

DENIAL OF A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Because Vergara neither makes a substantial showing of the denial of a

constitutional right nor shows that reasonable jurists would find debatable both the

merits of the underlying claims and the procedural issues, a certificate of appealability

and leave to appeal in forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2). Slack v.

McDaniel, 529 U.S. 473, 478 (2000).

DONE AND ORDERED in Tampa, Florida on Noyember21,2025.

MARYS. SORIVEN

UNITED STATES DISTRICT JUDGE