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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CARLOS CAMACHO,

#60477-177,

§

§ 

 Movant, §

§ No. 3:22-cv-00933-E (BT) 

v. § No. 3:20-cr-00339-E-1 

§

UNITED STATES of AMERICA, §

 Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Movant Carlos Camacho, a federal prisoner, filed a pro se motion to 

vacate, set-aside, or correct his sentence under 28 U.S.C. § 2255. The District 

Court referred the resulting civil action to the United States magistrate judge 

pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the 

following reasons, the Court should dismiss Camacho’s § 2255 motion. 

I.

Camacho pleaded guilty to the importation of a controlled substance 

in violation of 21 U.S.C. §§ 952(a) and 960(b)(2). On November 12, 2021, the 

District Court sentenced him to 151 months’ imprisonment. Camacho did 

not appeal to the Fifth Circuit Court of Appeals. Instead, he timely filed this 

§ 2255 motion (CV ECF No. 2). 1 

1 For purposes of these Findings, Conclusions, and Recommendation, “CV 

ECF” refers to the docket in this civil action, case number 3:22-cv-933-EBT; and “CR ECF” refers to the docket in the criminal action, case number 

3:20-cr-339-E-1.

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In two grounds for relief, Camacho argues: 

(1) he was sentenced based on “actual” (CV ECF No. 2 at 5) 

methamphetamine, but he pleaded guilty to a “mixture” (id.) 

containing methamphetamine; and 

(2) his attorney provided ineffective assistance of counsel when he 

failed to object to him being sentenced with a two-level upward 

adjustment for crimes involving the importation of 

methamphetamine. 

The Government responds that Camacho’s § 2255 motion should be denied 

because his claims are either waived by the appellate-rights waiver in his 

plea agreement, procedurally barred, noncognizable, conclusory, or 

meritless. Resp. (CV ECF No. 4). Camacho did not file a reply. 

II.

A. Camacho’s claim that the Court improperly sentenced him based on 

“actual” methamphetamine rather than a “mixture” is waived and 

noncognizable.

In his first claim, Camacho argues that he “was sentenced for ‘actual’ 

methamphetamine when [he] plead[ed] guilty to [a] ‘mixture.’” Mot. 5 (CV 

ECF No. 2). He explains that by being sentenced based on “actual” 

methamphetamine rather than a “mixture” containing methamphetamine, 

he had “a much higher offence [sic] level.” Id.

But Camacho’s plea agreement included the following waiver 

provision:

The defendant waives the defendant’s rights, conferred by 28 

U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal the conviction, 

sentence, fine and order of restitution or forfeiture in an 

amount to be determined by the district court. The defendant 

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further waives the defendant’s right to contest the conviction, 

sentence, fine and order of restitution or forfeiture in any 

collateral proceeding, including proceedings under 28 U.S.C. 

§ 2241 and 28 U.S.C. § 2255. The defendant, however, reserves 

the rights (a) to bring a direct appeal of (i) a sentence exceeding 

the statutory maximum punishment, or (ii) an arithmetic error 

at sentencing (b) to challenge the voluntariness of his plea of 

guilty or this waiver, and (c) to bring a claim of ineffective 

assistance of counsel.

(CR ECF No. 24 at 6) (emphasis added). 

Camacho’s claim that the Court erred by sentencing him based on 

“actual” methamphetamine does not fall within any reservation of rights 

contained in the waiver provision. And courts generally enforce a collateral 

review waiver provision where the waiver “was knowing and voluntary, and 

if the waiver applies to the circumstances at hand.” United States v. Walters, 

732 F.3d 489, 491 (5th Cir. 2013) (citing United States v. Bond, 414 F.3d 

542, 544 (5th Cir. 2005)); see also United States v. Wilkes, 20 F.3d 651, 653 

(5th Cir. 1994). The Fifth Circuit has recognized exceptions to this rule where 

a movant raises a claim of ineffective assistance of counsel or the sentence 

exceeds the statutory maximum. United States v. Barnes, 953 F.3d 383, 

388-89 (5th Cir. 2020); see also United States v. Hollins, 97 F. App’x 477, 

479 (5th Cir. 2004) (per curiam). 

In this case, there is no indication that Camacho’s waiver was not 

informed and voluntary. As part of his plea agreement, he acknowledged his 

guilty plea was “freely and voluntarily made and is not the result of force or 

threats, or of promises apart from those set forth in this plea agreement. 

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There have been no guarantees or promises from anyone as to what sentence 

the Court will impose.” (CR ECF No. 24 at 6.) Camacho also acknowledged 

that he had “thoroughly reviewed all legal and factual aspects of this case 

with the defendant’s attorney and is fully satisfied with that attorney’s legal 

representation . . . [he] has received from [his] attorney explanations 

satisfactory to [him] concerning each paragraph of this plea agreement, each 

of [his] rights affected by this agreement, and the alternatives available to 

[him] other than entering into this agreement.” Id. at 6-7. He conceded “that 

[he was] guilty, and after conferring with [his] attorney, [he] [ ] concluded 

that it [was] in [his] best interest to enter into this plea agreement and all its 

terms, rather than to proceed to trial in this case.” Id. at 7. At Camacho’s 

rearraignment hearing, the Court specifically noted that the plea agreement 

included a broad waiver of his right to challenge his conviction and sentence 

in a collateral proceeding. (CR ECF No. 53 at 13.) He admitted under oath 

that he understood the right, and he was voluntarily waiving it. Id.

In sum, Camacho waived his first claim by pleading guilty and 

specifically waiving his right to bring a § 2255 claim in his plea agreement. 

Additionally, Camacho’s first claim is not cognizable under § 2255. See 

United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999) (§ 2255 

motions can raise only constitutional errors and other injuries that could not 

have been raised on direct appeal that will result in a miscarriage of justice, 

and because misapplications of the sentencing guidelines do not fall into 

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either category, they are not cognizable in § 2255 motions); see also 

Robertson v. United States, 2021 WL 662108, at *2 (N.D. Tex. Feb. 19, 2021)

(citing Williamson, 183 F.3d at 462). Camacho’s first claim is a direct attack 

on the District Court’s guidelines calculation, and his argument is not 

cognizable in this § 2255 action. 

For these reasons, Camacho’s first claim is waived or not cognizable. 

The Court should dismiss Camacho’s first claim. 

B. Camacho’s claim that his attorney provided ineffective assistance of 

counsel is conclusory and meritless. 

At sentencing, the District Court increased Camacho’s offense level by 

two levels under U.S.S.G. § 2D1.1(b)(5)(A) & (B) because “the offense 

involved the importation of methamphetamine and the defendant is not 

subject to an adjustment under § 3B1.2 (Mitigating Role)[.] In this case, the 

defendant arranged to import methamphetamine from Mexico.” PSR ¶ 27; 

see also (CR ECF No. 50) (adopting the PSR with unrelated changes). 

Camacho argues in his second claim that his attorney provided ineffective 

assistance of counsel when he failed to object to the two-level upward 

adjustment for crimes involving the importation of methamphetamine. Mot. 

6 (CV ECF No. 2). He contends that if his attorney had properly objected, his 

base offense level “might have been lower.” Id. (emphasis added).

To prevail on a claim of ineffective assistance of counsel, a movant 

must show that: (1) his counsel’s performance was deficient; and (2) the 

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deficient performance prejudiced his defense so gravely as to deprive him of 

a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). In 

Strickland, the Court stated that “[j]udicial scrutiny of counsel's 

performance must be highly deferential” and “every effort [must] be made 

to eliminate the distorting effects of hindsight.” 466 U.S. at 689. Courts, 

therefore, must “indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” Id.

“In the context of sentencing, prejudice means 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); 

see also Glover v. United States, 531 U.S. 198, 200 (2001) (“[I]f an increased 

prison term did flow from an error [of counsel] the petitioner has established 

Strickland prejudice”); United States v. Seyfert, 67 F.3d 544, 548-49 (5th 

Cir. 1995) (“To satisfy the prejudice prong of the Strickland test in the 

context of a non-capital sentencing proceeding, a defendant must establish 

a reasonable probability that, but for the deficient performance of counsel, 

his sentence would have been significantly less harsh.”) (citing United States 

v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995); United States v. Segler, 37 F.3d 

1131, 1136 (5th Cir. 1994)); see also Potts v. United States, 566 F.Supp.2d 

525, 537 (N.D. Tex. 2008).

Camacho’s ineffective assistance of counsel claim fails because it is 

conclusory. See United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993)

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(“[M]ere conclusory allegations on critical issues are insufficient to raise a 

constitutional issue.”); see also Lookingbill v. Cockrell, 293 F.3d 256, 263 

(5th Cir. 2002) (noting where a habeas petitioner fails to brief an argument 

adequately, it is considered waived). Indeed, Camacho’s ineffective 

assistance of counsel claim fails under both prongs of the Strickland 

standard because it is so conclusory that it is legally insufficient. His claim 

fails under the performance prong of Strickland because he fails to state any 

bases upon which his attorney should or could have raised a meritorious 

objection at sentencing. See Thomas v. Davis, 968 F.3d 352, 355 (5th Cir. 

2020) (to prevail on an ineffective assistance of counsel claim, a habeas 

petitioner must satisfy the two-pronged test set forth in Strickland, 466 U.S. 

at 668); see also United States v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000)

(per curiam) (“Failure to meet either the deficient performance prong or the 

prejudice prong will defeat a claim for ineffective assistance of counsel.”). 

Camacho’s ineffective assistance of counsel claim also fails under the 

prejudice prong of Strickland because he has not demonstrated that if his 

attorney had objected, there is a reasonable probability his sentence would 

have been significantly less harsh. See Seyfert, 67 F.3d at 548-49; see also 

Acklen, 47 F.3d at 742. 

Camacho’s conclusory allegations are insufficient to prove ineffective 

assistance of counsel under either prong of the Strickland standard. See 

Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998) (“Mere conclusory 

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allegations in support of a claim of ineffective assistance of counsel are 

insufficient to raise a constitutional issue.”) (citing Kinnamon v. Scott, 40 

F.3d 731, 735 (5th Cir. 1994)); see also Anderson v. Collins, 18 F.3d 1208, 

1221 (5th Cir. 1994).

For these reasons, Camacho’s second claim is conclusory and fails on 

the merits. The Court should summarily dismiss or deny Camacho’s second 

claim. 

III. 

The District Court should DISMISS Camacho’s motion to vacate, setaside, or correct his sentence under 28 U.S.C. § 2255. 

Signed September 12, 2023. 

___________________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall 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); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific 

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

the objection, and specify the place in the magistrate judge’s report and 

recommendation where 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).

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