IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHRISTIAN CABALLERO, §

#57576-177, §

MOVANT, §

§

V. § CASE NO. 3:22-CV-616-S-BK

§ (CRIMINAL NO. 3:18-CR-185-S-8)

UNITED STATES OF AMERICA, §

 RESPONDENT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this civil action was referred to the 

undersigned United States magistrate judge for case management, including the issuance of 

findings and a recommended disposition on the pro se motion to vacate, set aside, or correct 

sentence under 28 U.S.C. § 2255 filed by Movant Christian Caballero. As detailed below, the 

motion should be DENIED. 

I. BACKGROUND

Caballero was charged by a one-count indictment with conspiring to possess with intent 

to distribute a controlled substance, in violation of 21 U.S.C. § 846 (21 U.S.C. §§ 841(a)(1) & 

(b)(1)(A)(i)). Crim. Doc. 248-1 at ¶ 6.

1

 Caballero pleaded guilty to that charge pursuant to a 

plea agreement. Crim. Doc. 179. Following a lengthy sentencing hearing in which the Court 

determined, inter alia, he was not entitled to a safety-valve reduction because of his lack of 

candor as to his involvement in the conspiracy, Caballero was sentenced within the calculated 

1 Citations to documents from Movant’s criminal proceeding, United States v. Christian 

Caballero, 3:18-cr-00185-S-8, are preceded with “Crim. Doc.” Citations to documents from this 

Section 2255 proceeding are preceded with “Doc.”

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guidelines range but above the statutory minimum sentence to 135 months’ imprisonment. See

Crim. Doc. 529 at 30-88, 91-92, 96. 

Caballero filed a direct appeal, Crim. Doc. 516, which he subsequently moved to 

voluntarily dismiss before briefing. The United States Court of Appeals for the Fifth Circuit 

granted the motion to dismiss. Crim. Doc. 522; Crim. Doc. 523; Crim. Doc. 525. 

Caballero later filed the instant Section 2255 motion. Doc. 2, Doc. 3. The Government 

has filed a response. Doc. 8. However, Caballero has not filed a reply. 

Liberally construing his filings, Caballero makes these claims for relief:

1. The Court erred in refusing to grant him a safety-valve reduction (Ground 1).

2. The Court erred in failing to properly calculate his time served in pretrial

custody (Ground 3).

3. His counsel was ineffective for promising a safety-valve reduction but failing 

to deliver, failing to object to the absence of a safety-valve reduction, and 

failing to object to the alleged miscalculation of time that Caballero spent in 

pretrial custody (Ground 2).

Doc. 2 at 4-7; Doc. 3 at 2-12. 

II. LEGAL STANDARDS AND ANALYSIS

After conviction and exhaustion or waiver of the right to direct appeal, the court

presumes that a petitioner stands fairly and finally convicted. See United States v. Cervantes, 

132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d 228, 231-32 (5th 

Cir. 1991) (en banc)). But under 28 U.S.C. § 2255, a petitioner can collaterally challenge his 

conviction if: “(1) the sentence was imposed in violation of the Constitution or laws of the 

United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence 

exceeds the statutory maximum sentence; or (4) the sentence is ‘otherwise subject to collateral 

attack.’” United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996) (citation omitted). Section 

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2255, is “reserved for transgressions of constitutional rights and for that narrow compass of other 

injury that could not have been raised on direct appeal and, would, if condoned, result in a 

complete miscarriage of justice.” United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).

A. Refusal to Grant Safety Valve Reduction (Ground One)

Caballero claims that the Court erred by refusing to grant him a safety-valve reduction 

under U.S.S.G. § 5C1.2. Doc. 3 at 1-9. The safety-valve provision allows a court to sentence a 

defendant below the statutory minimum sentence under certain circumstances. United States v. 

Treft, 447 F.3d 421, 426 (5th Cir. 2006). A defendant may qualify for a sentence below the 

statutory minimum if he meets the five criteria set forth in 18 U.S.C. § 3553(f), one of which is 

that “the defendant has truthfully provided to the Government all information and evidence the 

defendant has concerning the offense or offenses that were part of the same course of conduct or 

of a common scheme or plan.” Here, following a lengthy hearing, the Court determined that a 

safety-valve reduction was not warranted because Caballero was not entirely truthful when 

providing information to the Government in an attempt to qualify for the reduction. Crim. Doc. 

529 at 30-88. 

Caballero is not entitled to Section 2255 relief on this claim for several reasons.

First, the claim is procedurally barred. Collateral review is different from and may not 

replace a direct appeal. United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc); see 

also United States v. Frady, 456 U.S. 152, 165 (1982) (“[W]e have long and consistently 

affirmed that a collateral challenge may not do service for an appeal.”) (citations omitted). “A 

defendant can challenge his conviction or sentence after it is presumed final on issues of 

constitutional or jurisdictional magnitude only and may not raise an issue for the first time on 

collateral review without showing both ‘cause’ for his procedural default and ‘actual prejudice’ 

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resulting from the errors.” Velasquez-Jimenez v. United States, 2:23-CV-085-Z-BR, 2023 WL 

8099114, at *2 (N.D. Tex. Oct. 23, 2023) (citing Shaid, 937 F.2d at 232). Caballero did not raise 

the safety valve issue on direct appeal, as he voluntarily dismissed his direct appeal. Crim. Doc. 

522, Crim. Doc. 523, Crim. Doc. 525. Caballero also fails to demonstrate cause or prejudice to 

excuse that default. While he claims that his counsel refused to raise this claim on direct appeal, 

Doc. 2 at 4, he does not argue that his appellate counsel was ineffective and that such 

ineffectiveness excuses the procedural default. See Doc. 2; Doc. 3. 

Second, Caballero waived his right to assert this claim under the plain terms of his plea 

agreement, which contains a waiver of Caballero’s right to challenge his conviction or sentence 

in a collateral proceeding under Section 2255, except to challenge the voluntariness of his guilty 

plea or the waiver of rights in it, or to bring an ineffective assistance of counsel claim. Crim. 

Doc. 179 at 6. Because such waivers are generally enforceable, United States v. Wilkes, 20 F.3d 

651, 653 (5th Cir. 1994), and because this claim falls outside the narrow scope of post-conviction 

challenges Caballero reserved, his claim may be denied on that basis alone. 

Third, Caballero’s safety-valve claim is not cognizable under Section 2255. See, e.g., 

United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (“Section 2255 motions may raise 

only constitutional errors and other injuries that could not have been raised on direct appeal that 

will result in a miscarriage of justice if left unaddressed. Misapplications of the Sentencing 

Guidelines fall into neither category and hence are not cognizable in § 2255 motions.”); United 

States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994) (“A district court’s technical application of 

the Guidelines does not give rise to a constitutional issue cognizable under § 2255.”).

2

2 Even assuming Caballero could overcome all these procedural obstacles, he cannot show that 

the Court erred in refusing to apply the safety-valve reduction. Doc. 8 at 15. The Court relied on 

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In sum, Caballero is not entitled to Section 2255 relief on his claim that the Court erred in 

not awarding him a safety-valve reduction. 

B. Error in Calculating Time in Pre-Trial Custody 

Caballero also contends that his time in pretrial custody was miscalculated; thus, he was 

denied two months of credit for time served. Doc. 3 at 1. This claim likewise is not cognizable 

in a Section 2255 proceeding. A claim attacking the way the sentence is carried out or the 

Bureau of Prisons’ (BOP) determination of its duration should be filed pursuant to 28 U.S.C. § 

2241 in the federal district of incarceration. See United States v. Gabor, 905 F.2d 76, 77 (5th 

Cir. 1990); Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Thus, Caballero’s claim is 

properly brought by a Section 2241 motion filed in the Western District of Louisiana where he is 

incarcerated at USP Pollack. 

C. Ineffective Assistance of Counsel 

Caballero also argues that his counsel was ineffective for promising that he would receive 

the safety-valve reduction, for failing to object to the lack of a safety-valve reduction at 

sentencing, and for failing to challenge the purported miscalculation of time Caballero served in 

pretrial custody. Doc. 3 at 10-11. 

To establish ineffective assistance of counsel, a movant must demonstrate counsel’s 

performance was deficient and that the deficient performance prejudiced his defense. Strickland 

agent testimony that was based on “specific concrete information”—namely information from 

both a cooperating defendant and a confidential informant that the agent (and, in turn, the Court) 

deemed reliable—and was therefore not speculative. Crim. Doc. 529 at 30-88; United States v. 

Lima-Rivero, 971 F.3d 518, 522-23 (5th Cir. 2020) (denial of safety-valve reduction for 

untruthfulness requires supporting evidence that is more than “speculation” or “mere 

conjecture.”) (citing United States v. Miller, 179 F.3d 961, 969 (5th Cir. 1999)).

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v. Washington, 466 U.S. 668, 687-688 (1984). Failure to establish either deficient performance 

or prejudice defeats the claim. Id. at 697. 

To prove the deficient-performance prong of the Strickland test, the movant must show 

that counsel made errors so serious that he or she was not functioning as the counsel guaranteed 

by the Sixth Amendment. Id. at 687. The proper measure of attorney performance is 

reasonableness under prevailing professional norms. Id. at 688. That said, “[j]udicial scrutiny of 

counsel’s performance must be highly deferential.” Id. at 689. There is a strong presumption 

that counsel’s conduct fell within the wide range of reasonable professional assistance. Id.

Moreover, in the context of sentencing, “prejudice means that that but for his counsel’s error, his 

sentence would have been significantly less harsh.” United States v. Stewart, 207 F.3d 750, 751 

(5th Cir. 2000) (per curiam). 

i. Purported Promise of a Safety-Valve Reduction 

Caballero’s claim that counsel promised him a safety-valve reduction is belied by the 

record. Caballero gave sworn testimony that, among other things, he understood: (1) his 

sentence would be decided by the Court alone and that he should not rely on any statement or 

promise from anyone, including the Government, about what his sentence would be; (2) his 

guilty plea must be knowing and voluntary; (3) after determining the guidelines range, the Court 

could impose a sentence, so long as within statutory limits, that was within the guidelines range, 

above it, or below it; (4) he faced imprisonment of at least 10 years and no more than life; and 

(5) the potential penalties and consequences should he enter a guilty plea. Crim. Doc. 528 at 7-

10. He acknowledged his understanding that if his sentence was more severe than he expected, 

he would not have the right to withdraw his guilty plea, Crim. Doc. 528 at 20, and made similar 

representations in his plea agreement, see, e.g., Crim. Doc. 179 at 3, 6.

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Formal declarations in open court carry with them a “strong presumption of verity.” 

United States v. Abreo, 30 F.3d 29, 31 (5th Cir. 1994); see also United States v. Lampazianie, 

251 F.3d 519, 524 (5th Cir. 2001). And “official documents—such as a written plea 

agreement—are ‘entitled to a presumption of regularity and are accorded great evidentiary 

weight.’” United States v. McDaniels, 907 F.3d 366, 371 (5th Cir. 2018) (quoting Hobbs v. 

Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985)). Thus, to overcome the sworn statements that 

clearly contradict his claim that his counsel promised a safety-valve reduction, Caballero must 

show—typically through affidavits from reliable third parties—“(1) the exact terms of the 

alleged promise, (2) exactly when, where, and by whom the promise was made, and (3) the 

precise identity of an eyewitness to the promise.” Cervantes, 132 F.3d at 1110. Caballero offers 

nothing like that. Thus, Caballero’s claim that his counsel was ineffective for promising that the 

Court would apply the safety valve reduction is meritless and should be denied. 

ii. Failure to Object to Lack of Safety Valve Reduction 

Caballero’s complaint that his counsel was ineffective for not objecting to the lack of a 

safety-valve reduction in the PSR calculations, Doc. 3 at 11, is unsupported, prompting a lengthy 

hearing on the issue. Crim. Doc. 394; Crim. Doc. 529 at 30-88. Caballero does not explain how 

his counsel could have presented the argument differently. Because Caballero’s factual premise

is fatally flawed, he fails to demonstrate ineffectiveness and that he is entitled to relief on this 

claim. See, e.g., Contreras v. United States, 682 F. Supp. 2d 771, 778 (S.D. Tex. Jan. 27, 2010)

(movant “cannot establish ineffective assistance of counsel simply because the arguments 

advanced by his attorney failed.”).

iii. Failure to Object to Time in Pretrial Custody

Finally, Caballero claims that his counsel should have objected to the purported 

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miscalculation of time he served in pretrial custody. Doc. 3 at 11. As indicated supra, however, 

a district court lacks the authority to compute the amount of credit for time served to be accorded 

the defendant. United States v. Wilson, 503 U.S. 329, 333, 336 (1992); see also United States v. 

Barrera-Saucedo, 385 F.3d 533, 536 (5th Cir. 2004) (“There is no statutory authority for a 

district court to award credit against federal sentence for time spent in state custody.”). The BOP

makes that determination after the defendant begins his federal sentence. See id. at 333, 337; see 

also United States v. Caraveo-Nunez, 992 F.2d 323, 1993 WL 152140, at *1 (5th Cir. Apr. 21, 

1993) (per curiam) (“[T]he Attorney General, through the Bureau of Prisons, is responsible for 

administering the sentence and making the determination of jail-time credit when imprisoning a 

defendant.”). “As a result, the BOP—not defense counsel or the Court—is responsible for 

implementing the statutes concerning the computation of a federal sentence.” Aragones v. 

United States, 619 F. Supp. 3d 663, 670 (W.D. Tex. 2022) (citing Wilson, 503 U.S. at 333). 

At bottom, because the Court did not have the authority to determine the amount of

pretrial custody credit Caballero should get, his counsel was not ineffective for failing to object 

to the BOP’s calculation of the same, and this claim should be denied. See Koch v. Puckett, 907 

F.2d 524, 527 (5th Cir. 1990) (counsel not required to make futile objections or motions). 

III. CONCLUSION

Caballero’s Section 2255 motion should be DENIED, and this case should be 

DISMISSED WITH PREJUDICE. 

SO RECOMMENDED on December 21, 2023.

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report and recommendation must file specific 

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); An 

objection must identify the finding or recommendation to which objection is made, the basis for 

the objection, and the place in the magistrate judge’s report and recommendation the disputed 

determination is found. An objection that merely incorporates by reference or refers to the briefing 

before the magistrate judge is not specific. Failure to file specific written objections will bar the 

aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge 

that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass 

v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute on 

other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).

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