United States v. Zubia

UNITED STATES OF AMERICA v. PABLO ANGEL ZUBIA

Nos. PE:20-CR-00447-DC-DF-1, PE:21-CV-00073-DC

United States District Court, W.D. Texas, Pecos Division

March 31, 2022

HONORABLE DAVID COUNTS, U.S. DISTRICT JUDGE.

REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE

DAVID B. FANNIN UNITED STATES MAGISTRATE JUDGE.

BEFORE THE COURT is Defendant Pablo Angel Zubia's (“Defendant”) Motion to Vacate Under 28 U.S.C § 2255 (hereafter, “Motion to Vacate”). (Doc. 32). This case is before the undersigned U.S Magistrate Judge through a standing order of referral from the U.S. District Judge pursuant to 28 U.S.C. § 636 and Appendix C of the Local Rules for the Assignment of Duties to U.S. Magistrate Judges. After due consideration, the undersigned RECOMMENDS that Defendant's Motion to Vacate be DENIED. (Doc. 32).

I. Background

On October 8, 2020, Defendant was charged in a five-count indictment with transporting a total of nine illegal aliens for the purpose of commercial advantage and private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i). On November 18, 2020, Defendant pleaded guilty to all five counts.

Prior to sentencing, a Presentence Investigation Report (“PSR”) was prepared. (Doc. 25). Pursuant to the 2018 United States Sentencing Guidelines Manual (hereafter, “Sentencing Guidelines”) as amended and in effect when Defendant was sentenced, he as a first-time offender had a base offense level of twelve under U.S.S.G. § 2L1.1. Because the offenses involved the smuggling of more than six but less than twenty-four illegal aliens, Defendant's offense level was increased by three levels to fifteen pursuant to U.S.S.G. § 2L1.1(b)(2)(A). Furthermore, because the offenses involved the reckless or intentional creation of a substantial risk of death or serious bodily injury to another person due to Defendant's unbridled transport of three of the aliens located in the bed of the truck Defendant was driving, Defendant's offense level was increased to seventeen, which pursuant to U.S.S.G. § 2L1.1(b)(6) was automatically increased to eighteen. Defendant had accepted responsibility for his role in the offenses, as well as assisted authorities in the investigation or prosecution of his misconduct, both of which resulted in an offense level decrease of three levels to fifteen under U.S.S.G. § 3E1.1(a)-(B). Defendant otherwise was computed to have a criminal history score of two points for two prior convictions with a sentence of less than sixty days each, which established a criminal history category of II. This criminal history category combined with the total offense level of fifteen produced a guideline range of twenty-one to twenty-seven months.

At the sentencing hearing, Bart Medley (“Mr. Medley”), Defendant's counsel, objected to the application of the recklessness enhancement in the PSR. (Doc. 39 at 4). Specifically, Mr. Medley attempted to distinguish precedent from the United States Court of Appeals for the Fifth Circuit indicating that “having folks in the back of a pickup going down the highway is endangerment” by noting that Defendant was “doodling” through a golf resort in Lajitas as opposed to a highway. Id. The Court overruled objection at the hearing, and on March 23, 2021, sentenced Defendant to twenty-seven months' imprisonment to be followed by three years of supervised release. Id. Defendant made no direct appeal to his sentencing, and filed the instant Motion to Vacate on September 1, 2021. (Doc. 32). On November 2, 2021, the Government filed a response. (Doc. 35). On January 5, 2022, Defendant filed a Reply. (Doc. 38). Accordingly, this matter is ripe for disposition.

II. Legal Standard

1. 28 U.S.C. § 2255

Section 2255 permits an inmate serving a post-conviction sentence “to move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Relief under § 2255 is limited to those “transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). A motion may be made under § 2255 on only four grounds: (1) “the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “the court was without jurisdiction to impose such sentence”; (3) “the sentence was in excess of the maximum authorized by law”; or (4) the sentence is “otherwise subject to collateral attack.” United States v. Faubion, 19 F.3d 226, 232 (5th Cir. 1994) (citing 28 U.S.C. § 2255(a)). This motion must be made within one year from the occurrence of one of these events. United States v. Meadows, 394 F.Supp.3d 674, 677 (W.D. Tex. 2019) (citing 28 U.S.C. § 2255(f)). Thus, “[i]n the absence of constitutional or jurisdictional defects, a federal prisoner may invoke § 2255 only if the error constitutes ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” Pillault v. United States, 371 F.Supp.3d 325, 330 (N.D. Miss. 2019) (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)).

2. Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, the petitioner under the familiar Strickland test “must demonstrate that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense.” United States v. Guzman, No. 19-10783, 2021 U.S. App. LEXIS 30059, at *6, 2021 WL 4610124, at *2 (5th Cir. Oct. 6, 2021) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Thus, a defendant must show that “counsel's representation fell below an objective standard of reasonableness” and that this constitutionally ineffective representation prejudiced him. United States v. Scott, 11 F.4th 364, 368 (5th Cir. 2021) (citing Garza v. Idaho, 139 S.Ct. 738, 744 (2019)); Lee v. United States, 137 S.Ct. 1958, 1964 (2017) (citing Strickland, 466 U.S. at 688).

As to deficiency, counsel needed to have “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Jones v. United States, 14 F.Supp.3d 811, 815 (W.D. Tex. 2014) (quoting Strickland, 466 U.S. at 687). The defendant must show that, “in light of the circumstances as they appeared at the time of the conduct, ‘counsel's representation fell below an objective standard of reasonableness' as measured by ‘prevailing professional norms'” in order to satisfy the deficiency prong. King v. Davis, 883 F.3d 577, 586 (5th Cir. 2018) (quoting Rhoades v. Davis, 852 F.3d 422, 431 (5th Cir. 2017)). There is a “strong presumption that counsel's representation was within the ‘wide range' of reasonable professional assistance.'” Id. (quoting Harrington v. Richter, 562 U.S. 86, 104 (2011)). Regarding performance, counsel's errors must have been “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” United States v. Wines, 691 F.3d 599, 606 (5th Cir. 2012) (citing Strickland, 466 U.S. at 687). This prong is satisfied by a showing that there is a “reasonable probability . . . sufficient to undermine confidence in the outcome” that, “but for counsel's unprofessional errors, the result of the proceeding would have been different.” United States v. Lagos, 25 F.4th 329, 335-36 (5th Cir. 2022) (internal citation omitted). A “reasonable probability” is one “sufficient to undermine confidence in the outcome” of a criminal trial, and requires a “substantial” as opposed to a “conceivable” likelihood of another result. Wines, 691 F.3d at 604.

III. Discussion

1. Necessity of an Evidentiary Hearing

The trial court must first conduct a preliminary review of the § 2255 motion, and “[i]f it plainly appears from the motion, any attached exhibits, and the record of the prior proceeding that the moving party is not entitled to relief, the judge must dismiss the motion.” Norman v. United States, 376 F.Supp.3d 700, 704 (N.D. Miss. 2019) (citing Rule 8, RULES GOVERNING SECTION 2255 PROCEEDINGS) (alteration in original). After the court reviews the Government's response and any transcripts of prior proceedings, the court must decide whether an evidentiary hearing is warranted. Rule 8, RULES GOVERNING SECTION 2255 PROCEEDINGS. An evidentiary hearing may be warranted if the petitioner “produce[s] independent indicia of the likely merit of his allegations.” United States v. Bogomol, No. 18-11486, ___ Fed.Appx. ___, 2021 U.S. App. LEXIS 24148, at *7, 2021 WL 3620444, at *3 (5th Cir. Aug. 13, 2021) (original alterations omitted) (citing United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006)). Thus, a § 2255 motion necessitates an evidentiary hearing “unless either (1) the movant's claims are clearly frivolous or based upon unsupported generalizations, or (2) the movant would not be entitled to relief as a matter of law, even if his factual assertions were true.” United States v. Harrison, 910 F.3d 824, 826-27 (5th Cir. 2018) (citing United States v. Guerra, 588 F.2d 519, 521 (5th Cir. 1979)).

As will be explained below, the undersigned finds that Defendant's Motion to Vacate can be decided entirely on the evidence in the record. In particular, Defendant's claims upon examination of the record are left entirely without merit, and Defendant himself crestfallen. An evidentiary hearing is therefore not necessary. See also United States v. Tate, No. H-15-631-1, No. H-18-4234 2021 U.S. Dist. LEXIS 126120, at *22, 2021 WL 2834675, at *8 (S.D. Tex. July 7, 2021); see also Elliott v. United States, No. 4:16cv621, 2019 U.S. Dist. LEXIS 139951, at *22-*23, 2019 WL 3890161, at *7-*8 (E.D. Tex. June 26, 2019), report and recommendation adopted, No. 4:16-CV-621, 4:14-CR-11(01), 2019 U.S. Dist. LEXIS...