United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JAMES B. ZAGEL, District Judge.
Defendant Ricardo Garcia-Segura filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Defendant argues that he received constitutionally ineffective assistance of counsel at sentencing because his attorney failed to argue and present evidence that Defendant was purportedly eligible for the benefits of the fast-track program, and therefore should have gotten a lower sentence to avoid a sentencing disparity. For the following reasons, Defendant's motion is denied.
Defendant Ricardo Garcia-Segura was charged by criminal complaint on July 16, 2010, with illegal reentry, in violation of 8 U.S.C. § 1326(a). See United States v. Ricardo Garcia-Segura, 10 CR 603 (N.D. Ill.). A federal grand jury subsequently returned a single-count indictment charging Defendant with the same offense on July 29, 2010. Approximately 18 months later, on January 27, 2012, Defendant pleaded guilty to the indictment pursuant to a blind plea and written plea declaration.
At the time of his initial appearance, an attorney was appointed to represent Defendant. As described below, this same attorney continued to represent Defendant from the time of his initial appearance through his petition for a writ of certiorari.
Defendant's Plea Declaration
As a part of his blind plea and plea declaration, Defendant acknowledged that he is a native and citizen of Mexico without any claim to United States citizenship or legal residency. He further acknowledged that he had been removed from the United States on two previous occasions - first on September 26, 2003, and again on December 10, 2007, after he was convicted of unlawful delivery of a controlled substance and sentenced to 9 years' imprisonment. After he was removed for the second time on December 10, 2007, Defendant admitted that he returned to the United States days later on or about December 13, 2007.
In addition, Defendant admitted in the plea declaration that he was present in the United States on January 5, 2009, when Immigration and Customs Enforcement officials encountered him while he was in custody in Cook County jail pending state charges of possession of a controlled substance and unlawful possession of a weapon by a felon.
As to the sentencing consequences that he faced, Defendant's plea declaration was very specific. Defendant acknowledged that the maximum sentence was 20 years, and that the Court could sentence him up to that maximum term of imprisonment. In fashioning his sentence, Defendant acknowledged that the Court would be guided by the Sentencing Guidelines. Defendant confirmed that his plea was entirely voluntary. Defendant further stated that he understood that, as a result of his plea, he would again be deported and removed from the United States. Defendant's plea did not include any waiver of appellate or collateral rights.
The Sentencing Guideline Range
Following Defendant's plea of guilty, the Probation Office completed a Presentence Investigation Report (dated March 27, 2012). The Probation Office concluded that the base offense level was 8 pursuant to § 2L1.2, and that the offense level was increased by 16 levels because Defendant previously was deported following a conviction for a felony drug trafficking offense - Defendant's 2004 conviction for unlawful delivery of a controlled substance. Taking into account a reduction for acceptance of responsibility, Defendant's total offense level was 21.
The Probation Office further concluded that Defendant had 16 criminal history points, which resulted in the maximum criminal history category of VI. The PSR detailed Defendant's extensive history of committing crimes while living illegally in the United States including:
9/24/2001: convicted of possession of a controlled substance and sentenced to 5 years' imprisonment;
3/28/2002: convicted of possession of a controlled substance and sentenced to 2 ...