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October 11, 2005.


The opinion of the court was delivered by: JOAN LEFKOW, District Judge


Petitioner, Emilio Lobano-Rios, has filed a petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his original petition, Lobano-Rios seeks to vacate his sentence on three grounds; 1) constitutionally ineffective assistance of counsel in violation of the Sixth Amendment; 2) denial of the due process right to appeal in violation of the Fourteenth Amendment; and 3) unconstitutional enhancement of his sentence in violation of the Sixth Amendment, according to Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). On March 7, 2005, Lobano-Rios filed an Amendment and Supplemental Pleading to the arguments raised in his original petition. Lobano-Rios argued in his supplemental petition that his sentence also violated the Sixth Amendment because it was not determined by a jury, and federal sentencing guidelines are subject to the jury trial requirements of the Sixth Amendment, as decided by the Supreme Court in United States v. Booker and United States v. Fanfan, 125 S. Ct. 738 (2005). For the reasons set forth below, the original and supplemental petitions are denied. FACTS

On or about November 5, 1980, Lobano-Rios was convicted for attempted murder and voluntary manslaughter and received sentences of fifteen years and seven years, to be served concurrently. Lobano-Rios was released on May 8, 1987. On March 4, 1994, he was convicted of battery and was sentenced to pay restitution, fines, and costs. On October 28, 1994, Lobano-Rios was again convicted of battery and was sentenced to two years probation and payment of restitution and costs.

  On October 12, 1995, Lobano-Rios was deported from the United States to Mexico as a result of his conviction for an aggravated felony. On January 22, 2003, however, Lobano-Rios was indicted for being illegally present and found in the United States on or about December 23, 2002 in violation of 8 U.S.C. § 1326(a) and (b)(2). Lobano-Rios pled guilty pursuant to a plea agreement on May 19, 2003. Then, on October 14, 2003, he filed written objections to the U.S. Probation Office's Presentence Report, which ultimately were overruled, and on October 20, 2003, filed a motion to vacate his guilty plea, which was denied. Finally, on October 31, 2003, Lobano-Rios received a 57-month term of imprisonment, a three-year term of supervised release, and a $100 assessment.

  During sentencing, the court considered Lobano-Rios's current crime and his prior convictions. Because he had at least one prior conviction for an aggravated felony, Lobano-Rios was subject to an increased penalty under 8 U.S.C. § 1326(b) and, because at least one of his prior convictions was for a "crime of violence," Lobano-Rios was subject to a sixteen-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). As a result of these enhancements, Lobano-Rios's base offense level of eight was increased to twenty-four. He was ultimately sentenced at an offense level of twenty-one after receiving a three-level reduction for timely acceptance of responsibility.

  On November 3, 2003, Lobano-Rios filed a timely notice of appeal alleging sentencing errors, ineffective assistance of counsel, and error by the court in denying his motion to vacate his guilty plea. On January 5, 2004, counsel for Lobano-Rios filed a motion to withdraw as counsel on the ground that there were no non-frivolous issues for appeal, pursuant to Anders v. California, 386 U.S. 738 (1967). On January 5, 2004, the Seventh Circuit wrote Lobano-Rios a letter in English informing him that his attorney had filed an Anders brief, and advising him that he had thirty-days to inform the Court of any reasons why his conviction should be set aside or to request an extension of time to respond. The letter also advised Lobano-Rios that if he did not respond within thirty days, the Court could affirm or dismiss his appeal, which would effectively finalize his case. Lobano-Rios did not respond to the Seventh Circuit and, on April 30, 2004, the Seventh Circuit issued an order granting counsel for Lobano-Rios's motion to withdraw and dismissing Lobano-Rios's appeal as frivolous. On August 16, 2004, Lobano-Rios filed this timely motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.


  Relief under § 2255 "is reserved for extraordinary situations." Hays v. United States, 397 F.3d 564, 566 (7th Cir. 2005) (citations and internal quotations omitted). A district court must grant a § 2255 petition when the petitioner shows "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Id. at 566-67 (citations and internal quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.

  I. Ineffective Assistance of Counsel

  To prevail on a claim of ineffective assistance of counsel, the petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness;" and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 668, 694 (1984). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.

  To satisfy the first prong of the Strickland test, the petitioner must direct the court to specific acts or omissions of his counsel. Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000) (citing United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995)). The court must then consider whether, in light of all of the circumstances, counsel's performance was outside the range of professionally competent assistance. Id. Counsel's performance must be evaluated while remembering that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Id. To satisfy the second prong of the Strickland test, the plaintiff must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Id.

  Lobano-Rios claims that counsel failed to adequately explain the charges against him and the consequences of a guilty plea. He states that "counsel's only concern during the proceedings was to have Petitioner sign his plea agreement and plead guilty." (Pet'r's Reply to Government's Resp. at 4). In addition, Lobano-Rios alleges that due to his own lack of education, he was unable to understand the interpreter's Spanish.

  As the government correctly argues in response, the transcript of Lobano-Rios's plea hearing does not support and, in fact, directly contradicts his contentions. Indeed, the transcript demonstrates that through a Spanish language interpreter, Lobano-Rios received, both from his counsel and the court itself, a detailed explanation of the charges against him, the rights he was giving up by pleading guilty, and the consequences of a guilty plea. Lobano-Rios now claims, however, that he could not understand the Spanish language interpreter. Yet, during the plea hearing, the court specifically asked Lobano-Rios if he could understand the translation provided by the Spanish language interpreter, Ms. Fuenes, and Lobano-Rios replied "yes." (Tr. at 10).

  During the plea hearing, counsel informed the court that he spent hours explaining the unlawful entry charges to Lobano-Rios, (Tr. at 7), and Lobano-Rios confirmed to the court that counsel had indeed gone over the charges with him. (Tr. at 12). Moreover, the court specifically asked Lobano-Rios if he understood the charges against him and he replied, "Yes, I understand what they are saying against me." (Tr. at 12). As an additional precaution, counsel arranged for Ms. Fuenes to read the ...

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