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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 5:03cr13-RH/WCS

5:04cv230-RH/WCS

CESAR ESTRADA,

Defendant.

____________________________________/

ORDER DENYING §2255 MOTION

This matter is before the court on the magistrate judge’s report and

recommendation (document 259) and the objections thereto (document 260). I

have reviewed de novo the issues raised by the objections. The report and

recommendation is correct and will be adopted as the opinion of the court, with

this additional note.

One of defendant’s assertions is that at the rearraignment during which he

entered his guilty plea, I told him the guidelines probably would not call for a

sentence longer than the 10 year minimum mandatory. That almost surely did not

happen. From the facts that had been tendered (including defendant’s

responsibility for more than 1.5 kilograms of crack cocaine), it was clear

defendant’s base offense level would be 38. This made clear that the low end of

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Case No: 5:03cr13-RH/WCS and 5:04cv230-RH/WCS

the guidelines range would be substantially longer than 10 years. Drug cases with

base offense levels of 38 are common in this district. Although I do not

specifically recall precisely what was said at this rearraignment, I certainly knew

that the low end of the guidelines range would exceed 10 years. So did defendant’s

attorney and defendant himself, as confirmed by the correspondence quoted in the

report and recommendation.

The transcript includes this statement attributed to the court: “But it is true

that, unless there are some extraordinary circumstances, I wouldn’t anticipate the

guidelines range is likely to be higher than ten years.” (Transcript (document 246)

at 29, quoted in Report and Recommendation (document 259) at 9.) There are

three possible explanations for this part of the transcript. First, the transcript may

just be wrong; for example, I may have said “would” instead of “wouldn’t.” 

Second, the transcript may be accurate but misleading because failing to reflect a

pause; I may have said “I wouldn’t anticipate,” then paused and started the thought

anew, so that “the guidelines range is likely to be higher than ten years” was

actually a separate thought that, to anyone listening, would have been understood

to stand alone. And third, I may simply have failed to say accurately what I meant,

saying I wouldn’t anticipate the guidelines exceeding ten years, when I meant I

would anticipate they would exceed ten years. If that is what happened, it is

unfortunate, but in context of the full hearing and especially in the context of the

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1

 I will ask the court reporter to check her notes and, in the unlikely event

there is an audio recording, to check that as well, but the ruling here would be the

same no matter which of the three explanations set forth in the text is correct. 

Unless there is an audio recording, there will be no way of knowing with certainty

what was actually said or in what cadence. Experience teaches, however, that

when I know what I said, and the transcript is different, the court reporter

ordinarily has it right. She can take down more than I can remember. But of

course no method of preserving a record is 100 percent accurate.

Case No: 5:03cr13-RH/WCS and 5:04cv230-RH/WCS

ongoing case and the correspondence between defendant and his attorney, the

misstatement plainly made no difference.1

The record makes clear that defendant well knew he was facing a minimum

mandatory 10 year sentence, a maximum sentence of life, and a guidelines

sentence substantially in excess of the minimum mandatory. His attorney’s

advice—that his best way out of this very difficult circumstance was to attempt to

obtain a substantial assistance motion—was spot on. 

For these reasons and those set forth in the report and recommendation,

IT IS ORDERED:

The report and recommendation is ACCEPTED and adopted as the opinion

of the court. Defendant’s claim of ineffective assistance in connection with the

failure to file a notice of appeal is remanded to the magistrate judge for further

proceedings. Defendant’s amended § 2255 motion (document 231) is DENIED

with prejudice as to all other claims. I do not direct the entry of judgment on those

claims but will instead direct entry of judgment upon final resolution of the entire

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Case No: 5:03cr13-RH/WCS and 5:04cv230-RH/WCS

§ 2255 motion.

SO ORDERED this 9th day of March, 2006.

s/Robert L. Hinkle 

Chief United States District Judge 

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