NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANTONYO REECE, §

ID # 37470-177, §

Movant, §

§ No. 3:22-CV-2304-B-BK

v. § No. 3:08-CR-167-B(6)

§

UNITED STATES OF AMERICA, §

Respondent. §

MEMORANDUM OPINION AND ORDER

Based on the relevant filings and applicable law, the pro se motion to vacate, set aside, or

correct sentence under 28 U.S.C. § 2255, received on October 13, 2022 (doc. 2), is DENIED and

this action is DISMISSED WITH PREJUDICE. 

I. BACKGROUND

Antonyo Reece (Movant) challenges his federal conviction and sentence in Cause No. 3:08-

CR-167-B(6). The respondent is the United States of America (Government). 

A. Conviction and Sentencing

After pleading not guilty and proceeding to a jury trial on a 43-count superseding indictment

with six others, Movant was found guilty on 12 counts with which he was charged, comprised of

three counts of conspiracy to commit bank robbery, six counts of using and carrying a firearm during

and in relation to, and possessing a firearm in furtherance of, a crime of violence under 18 U.S.C.

§ 924(c), two counts of attempted bank robbery, and one count of bank robbery. (See docs. 238,

319.)1 He was sentenced to a total term of 1,680 months’ imprisonment, to be followed by five years

of supervised release. (See doc. 319 at 2, 4.) On direct appeal, the Fifth Circuit affirmed eight of

1 Unless otherwise noted, all document numbers refer to the docket number assigned in the underlying

criminal action, No. 3:08-CR-167-B(6).

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Movant’s convictions, vacated four of them, and remanded the case for resentencing. (See docs. 456,

460.) He was resentenced to a total term of 1,080 months’ imprisonment on the eight remaining

counts and five years of supervised release. (See doc. 519.) The judgment was affirmed on Movant’s

second direct appeal. (See docs. 583, 585.)

Following a successful motion for a writ of habeas corpus under 28 U.S.C. § 2255 based on

a new rule of constitutional law made retroactive to first § 2255 cases, three of Movant’s remaining

convictions were vacated and the case was again remanded for resentencing. See United States v.

Reece, 938 F.3d 630 (5th Cir. 2019). By resentencing judgment dated March 16, 2020, Movant was

sentenced to a total term of 395 months’ imprisonment on the surviving five counts of conviction,

comprised of three counts of conspiracy to commit bank robbery (Counts One, Sixteen, and

Twenty), one count of bank robbery (Count Twenty-Two), and one count of using and carrying a

firearm during and in relation to, and possessing a firearm in furtherance of, a crime of violence

under § 924(c) (Count Twenty-Three), the latter of which was predicated on the bank robbery

offense of Count Twenty-Two; the term of imprisonment was to be followed by three years of

supervised release. (See doc. 97 at 29; doc. 650 at 1-3.)2 The Fifth Circuit affirmed this judgment on

Movant’s third direct appeal. (See docs. 670-71.) On October 12, 2021, the Supreme Court denied

Movant’s petition for a writ of certiorari. (See doc. 695.) 

B. Substantive Claims

Movant’s § 2255 motion asserts the following grounds for relief: (1) his appellate counselwas

ineffective for failing to argue a violation of the Ex Post Facto Clause; (2) the court violated his Fifth

2 Citations to the record refer to the CM/ECF system page number at the top of each page rather than the

page numbers at the bottom of each filing.

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Amendment rights “by double counting his firearm enhancements on Counts 1, 16, 20, 22, and 23”;

and (3) the court “failed to apply the First Step Act retroactivity to Count 23.”(No. 3:22-CV-2304-

B-BK, doc. 2 at 7.) The Government filed a response on February 15, 2023. (See id., doc. 14.)

Movant filed a reply on May 23, 2023. (See id., doc. 17.) 

II. SCOPE OF RELIEF UNDER § 2255

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

that a defendant has been fairly and finally convicted. 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)). Postconviction “[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutionalrights and

for a narrow range of injuries that could not have been raised on direct appeal and would, if

condoned, result in a complete miscarriage of justice.” United States v. Gaudet, 81 F.3d 585, 589 (5th

Cir. 1996) (citation and internal quotation marks omitted); see also United States v. Willis, 273 F.3d

592, 595 (5th Cir. 2001) (“A defendant can challenge a final conviction, but only on issues of

constitutional or jurisdictional magnitude.”). 

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Movant’s first ground alleges the ineffective assistance of appellate counsel. (See No. 3:22-

CV-1204-B-BK, doc. 2 at 7.)

The Sixth Amendment to the United States Constitution guarantees a criminal defendant

the effective assistance of counsel, both at trial and on appeal. Strickland v. Washington, 466 U.S. 668,

686 (1984); Evitts v. Lucey, 469 U.S. 387, 396 (1985). To successfully state a claim of ineffective

assistance of counsel, the movant must demonstrate that counsel’s performance was deficient and

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that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. A failure to

establish either prong of the Strickland test requires a finding that counsel’s performance was

constitutionally effective. Id. at 697. The court may address the prongs in any order. Smith v. Robbins,

528 U.S. 259, 286 n.14 (2000). 

In determining whether counsel’s performance is deficient, courts “indulge a strong

presumption that counsel’s conduct falls within thewide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689. “The reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or actions.” Id. at 691. To establish

prejudice, a movant “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694; see also

Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000) (stating that prejudice inquiry focuses on “whether

counsel’s deficient performance renders the result of the trial unreliable or the proceeding

fundamentally unfair.”). Reviewing courtsmust consider the totality of the evidence before the finder

of fact in assessing whether the result would reasonably likely have been different absent counsel’s

alleged errors. Strickland, 466 U.S. at 695-96.

On appeal, counsel need not raise every non-frivolous issue to render constitutionally

effective assistance. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). “Instead, to be

deficient, the decision not to raise an issue must fall ‘below an objective standard of reasonableness,’”

and the court must consider whether the challenge “would have been sufficiently meritorious such

that [] counsel should have raised it on appeal.” United States v. Phillips, 210 F.3d 345, 348 (5th Cir.

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2000) (quoting Strickland, 466 U.S. at 688); see also Williamson, 183 F.3d at 463 (“Solid, meritorious

arguments based on directly controlling precedent should be discovered and brought to the court’s

attention.”). To demonstrate prejudice, a movant must show a reasonable probability that but for

counsel’s deficient representation, he would have prevailed on his appeal. Briseno v. Cockrell, 274

F.3d 204, 207 (5th Cir. 2001).

Movant contends that appellate counsel on his third direct appeal was ineffective “for not

properly filing and arguing ex post facto, petitioner’s 5th and 6th Amendment rights were violated

based on petitioner’s non-mandatory and mandatory minimum sentence being increased on counts

1, 16, 20, 22, and 23. (No. 3:22-CV-2304-B-BT, doc. 3 at 5-7; see also id., doc. 2 at 7.) According

to Movant, he “was resentenced to a five-level enhancement for counts 1, 16 and 20 . . ., which is

a violation of ex post facto.” (Id., doc. 3 at 6.) His argument relies on the following premise: “In the

previous sentencing, petitioner did not receive a five-level enhancement. Not until the last

resentencing under the 2018 Guidelines was the enhancement applied.” (Id.) He argues that the

“error by appellate counsel hurt so much to where it cost petitioner a good chance on direct appeal

to get 5th and 6th Amendment violations heard and ruled on.” (Id., doc. 3 at 7.)

“The Constitution forbids the passage of ex post facto laws, a category that includes every law

that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime,

when committed.” Peugh v. United States, 569 U.S. 530, 532-33 (2013) (citation and internal

quotation marks omitted). The Constitution’s Ex Post Facto Clause is violated in the context of

calculating a defendant’s sentence under the sentencing guidelines “when application of the

Guidelines in effect at sentencing results in a harsher penalty than would application of the

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Guidelines in effect when the offense was committed.” United States v. Myers, 772 F.3d 213, 219 (5th

Cir. 2014) (citations and internal quotation marks omitted); see also Peugh, 569 U.S. at 550. 

Here, the record shows that the 2008 Guidelines Manual in effect at the time of Movant’s

offense – and not the 2018 Guidelines Manual as alleged by Movant – was applied to calculate

Movant’s guideline imprisonment range at his third sentencing.3(See doc. 637 at 1; doc. 624 at ¶

32.) Since the 2008 Guidelines Manual was both in effect at the time of Movant’s offenses and

applied at his third sentencing, Movant fails to show an ex post facto violation stemming from the

calculation of his guideline imprisonment range pursuant to same. See Myers, 772 F.3d at 219. 

And to the extent Movant’s ex post facto argument relies on the five-level increases to his base

offense levels under U.S.S.G. § 2B3.1(b)(2)(C) for possession of a firearm, his claim still fails. Under

§ 2B3.1(b)(2)(C) of the 2008 sentencing guidelines, a defendant’s base offense level for robbery

offenses is increased by five levels “if a firearm was brandished or possessed.” U.S.S.G. §

2B3.1(b)(2)(C)(2008). The guidelines precluded application of this increase where the conduct –

brandishing or possessing a firearm – was separately charged under § 924(c).4See U.S.S.G. § 2K2.4

cmt. n.4 (2008); Spezzia v. United States, No. 4:19-cv-04600, 2023 WL 4681378, at *5 (S.D. Tex.

May 16, 2023) (“[T]he Guidelines also excluded consideration of [the defendant’s] possession of a

firearm during the hostage taking event, which otherwise could have applied . . . because that

3 The 2008 sentencing guidelines were also used to determine the applicable guideline imprisonment range

at Movant’s two prior sentencings. (See doc. 342-2 at ¶ 32; doc. 624 at ¶ 32.) 

4 Even if the 2018 sentencing guidelines in effect at the time of the third sentencing had been applied to

determine Movant’s guideline imprisonment range, asMovant alleges,the 2008 guideline provisions discussed

remained the same in 2018. See U.S.S.G. § 2B3.1(b)(2)(C)(2018); U.S.S.G. § 2K2.4 cmt. n.4 (2018). The

court’s analysis is therefore unchanged regardless of whether the 2008 or 2018 sentencing guidelines were

used. 

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conduct was separately charged under § 924(c)[.]”). Here, Movant’s § 924(c) convictions predicated

on the conspiracy counts charged in Count One and Count Sixteen were vacated; accordingly, the

restriction of § 2K2.4 no longer applied to Counts One and Sixteen for purposes of sentencing, and

the five-level increases for possession of a firearm were properly considered and applied to determine

Movant’s base offense level at his third sentencing. See, e.g., United States v. Sauls, 817 F. App’x 14,

14 (5th Cir. 2020) (discussing, in part, United States v. Rodriguez, 114 F.3d 46, 47-48 (5th Cir.

1997)); United States v. Benbrook, 119 F.3d 338, 339-41 (5th Cir. 1997). As for Movant’s allegation

that he received a five-level increase on Count Twenty, (see No. 3:22-CV-2304-B-BK, doc. 3 at 6),

his claim is refuted by the record and without merit; the conspiracy charged in Count Twenty was

grouped with the bank robbery offense charged in Count Twenty-Two for sentencing purposes, and

a five-level firearm increase was expressly excluded because of the § 924(c) charge in Count TwentyThree. (See doc. 637 at ¶ 49.) 

Movant fails to show any ex post facto violation at his third sentencing, and therefore fails to

identify a meritorious issue, much less one “based on directly controlling precedent,”which appellate

counsel could or should have raised on his third direct appeal. Williamson, 183 F.3d at 463. Appellate

counsel is not deficient for failing to raise a meritless claim on appeal, and Movant has therefore

failed to satisfy the first prong of Strickland. See Phillips, 210 F.3d at 348 (holding that attorneys do

not render deficient representation by failing to present meritless claims on appeal). He also has not

presented any facts or evidence to show resulting prejudice under Strickland, i.e., a reasonable

probability that he would have prevailed on his third direct appeal had counsel raised the meritless

arguments alleged. See Auvenshine v. Davis, No. 4:17-CV-294-Y, 2018 WL 2064704, at *4 (N.D.

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Tex. May 3, 2018) (“Prejudice does not result from appellate counsel’s failure to assert meritless

claims or arguments.”). Movant has not satisfied his burden under both prongs of Strickland, and his

claim is denied.5

IV. COURT ERROR

In his second and third grounds, Movant contends that the court committed constitutional

error “by double counting his firearm enhancements on Counts 1, 16, 20, 22, and 23,” and failing

“to apply the First Step Act retroactivity to Count 23,”respectively. (No. 3:22-CV-2304-B-BK, doc.

2 at 7.) The Government contends that both grounds are procedurally barred and without merit, and

that his second ground is also non-cognizable. (See id., doc. 14 at 17, 19-21.)

A. Double Counting

Movant contends that the court violated his constitutional rights “due to the

unconstitutional double counting of counts 1, 16, 20, 22 and 23.” (No. 3:22-CV-230-B-BK, doc. 3

at 7.) According to Movant, his base offense level of 20 was raised to 22 because a firearm was used,

and he “then received a five-level enhancement on top of the existing two-level enhancement on

counts 1, 16 and 20.” (Id.) He also claims that on Count Twenty-Three, he “received a 924(c)

enhancement of 260 months for a firearm, the appropriate penalty for which was already calculated

in the enhanced levels.” (Id.) He posits that the court “could either impose a 200-month upward

5

In his reply, Movant appears to argue that appellate counsel should have challenged the five-level increases

to his base offense levels under Alleyne v. United States, 570 U.S. 99 (2013). (See No. 3:22-CV-2304-B-BK,

doc. 17 at 2-4.) Under Alleyne, facts that increase a mandatory minimum sentence must be submitted to the

jury and proven beyond a reasonable doubt. See Alleyne, 570 U.S. at 116. Here, there were no statutory

mandatory minimum sentences for the offenses to which a five-level increase for possession of a firearm was

applied, and no five-level firearm increase or enhancement was applied to his § 924(c) offense, which was

the only surviving count that carried a statutory mandatory minimum sentence. (See doc. 637 at ¶¶ 37, 43,

65, 93.) Alleyne is inapplicable, and appellate counsel was not ineffective for failing to raise a meritless claim

under Alleyne on Movant’s third appeal, for the reasons discussed. Accordingly, the claim is denied. 

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variance or it could impose the five-level enhancement. It could not do both without violating

[Movant’s] 5th Amendment right to due process.” (Id., doc. 3 at 8.) 

It is well established that the technical application of the sentencing guidelines is not subject

to collateral review in a § 2255 motion. See, e.g., Williamson, 183 F.3d at 462; United States v. Payne,

99 F.3d 1273, 1281-82 (5th Cir. 1996). “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.” Williamson, 183 F.3d at 462. Accordingly, to the

extent Movant contends that the court misapplied the sentencing guidelines in connection with his

third sentencing, his claim is not cognizable under § 2255 and entitles him to no relief.

Movant’s claim is also refuted by the record and without merit. Contrary to Movant’s

allegations, his base offense level was not increased from 20 to 22 for use of a firearm on any of his

surviving counts of conviction; rather, the base offense level was increased from 20 to 22 on Count

One, Count Sixteen, and grouped Counts Twenty and Twenty-Two because the offenses involved

the property of a financial institution. (See doc. 637 at ¶¶ 37, 43, 49.) And as the court has

explained, five levels were added to the base offense level for the conspiracy offenses charged in

Count One and Count Sixteen based on possession of a firearm; a five-level firearm increase was

expressly excluded from grouped Counts Twenty and Twenty-Two because of the § 924(c) offense

charged in Count Twenty-Three, for which Count Twenty-Two was the predicate offense. (See id.)

Nor was a five-level enhancement imposed on Movant’s § 924(c) conviction charged in Count

Twenty-Three. (See id. at ¶ 65.) Because Movant’s unsubstantiated allegations are refuted by the

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record, they are without merit and do not entitle Movant to § 2255 relief on this additional basis.

See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (“Absent evidence in the record, a court

cannot consider a habeas petitioner’s bald assertions on a critical issue in his pro se petition. . . 

unsupported and unsupportable by anything else contained in the record, to be of probative

evidentiary value.”). The claim is denied.6

B. First Step Act

Movant also contends that “[t]he First Step Act should have applied to [his] resentencing.”

(No. 3:22-CV-2304-B-BK, doc. 3 at 8; see also id., doc. 2 at 7.) The court understands his claim to

be based on the changes enacted by First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First

Step Act”), to the “stacking” provision of § 924(c). (See id., doc. 3 at 8.) 

Prior to the enactment of the First Step Act, § 924(c) included a “stacking” provision which

required courts to impose consecutive sentences of at least 25 years’ imprisonment for “second or

subsequent” § 924(c) convictions, even when they were incurred in the same criminal proceeding

as a first § 924(c) conviction. See United States v. Gomez, 960 F.3d 173, 176 (5th Cir. 2020).

Following the First Step Act’s enactment, “only a defendant who has a prior final conviction under

§ 924(c) is subject to the escalating mandatory minimum sentences for a subsequent § 924(c)

conviction.” United States v. Lang, No. 04-11, 2023 WL 6065156, at *3 (E.D. La. Sept. 18, 2023);

see also Gomez, 960 F.3d at 176-77. 

Here, Movant’s third sentencing included only a first and single conviction under § 924(c)

– Count Twenty-Three. (See doc. 650 at 1-2.) As such, Movant was subject to a mandatory

6 Because the court finds that the claim is non-cognizable and fails on the merits, it need not address the issue

of procedural default. 

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minimum sentence of 60 months’ imprisonment and up to a maximum sentence of life imprisonment

on Count Twenty-Three, and no stacked § 924(c) convictions or sentences were imposed.

7

See

United States v. Reece, 849 F. App’x 480, 482 (5th Cir. 2021) (“By statute, the court was required to

assess a minimum consecutive sentence of 60 months for the firearm conviction [Count TwentyThree] (with a statutory maximum sentence of life).”); United States v. Sias, 227 F.3d 244, 246-47

(5th Cir. 2000). Accordingly, the First Step Act’s amendment to § 924(c)’s “stacking” provision is

inapplicable to Movant, and he fails to identify any other provision of the First Step Act that is

applicable to his case. His claim therefore is without merit, and it is denied.8

V. EVIDENTIARY HEARING 

To the extent Movant seeks an evidentiary hearing before this court on his claims, no

evidentiary hearing is required when “the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). A movant “is entitled to an

evidentiary hearing on his § 2255 motion only if he presents ‘independent indicia of the likely merit

7 Movant’s argument also appears to be contingent, in part, on his faulty presumption that, “[a]ccording to

the First Step Act, if a defendant were convicted of four 924(c) convictions, he would receive 240 months,

60 months for each count.” (No. 3:22-CV-2304-B-BK, doc. 3 at 9.) Such a defendant, even assuming his

924(c) convictions were under § 924(c)(1)(A)(i), would be subject to a mandatory minimum of 60 months’

imprisonment and up to a maximum of life imprisonment on each § 924(c) count, to be served consecutively,

for a potential sentence of up to four consecutive life sentences. See 18 U.S.C. § 924(c)(1)(A)(i). 

8 Movant’s claim also appears to challenge the reasonableness of the 200-month upward variance to his

consecutive sentence on Count Twenty-Three, arguing that it is“exceptionally harsh.” (No. 3:22-CV-2304-

B-BK, doc. 3 at 8-11.) On Movant’s third direct appeal, the Fifth Circuit considered and rejected his

challenge to the procedural and substantive reasonableness of his sentence on Count Twenty-Three. See

Reece, 849 F. App’x at 482-84. Defendants who collaterally attack their federal convictions may not raise

grounds previously raised on direct appeal. See United States v. Rocha, 109 F.3d 225, 229-30 (5th Cir. 1997);

United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (citing United States v. Jones, 614 F.2d 80, 82 (5th

Cir. 1980)). Movant is therefore not entitled to habeas relief to the extent he challenges the reasonableness

of his sentence on Count Twenty-Three, and his claim is denied on this additional basis.

Because the court denies his claim on the merits, it need not address the issue of procedural default. 

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of [his] allegations.’” United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013) (citation omitted).

Because Movant has failed to come forward with independent indicia in support of the likely merit

of his claims, he has failed to demonstrate he is entitled to an evidentiary hearing.

VI. CONCLUSION

For the foregoing reasons, Movant’s pro se motion to vacate, set aside, or correct sentence

under 28 U.S.C. § 2255, received on October 13, 2022 (doc. 2), is DENIED and this action is

DISMISSED WITH PREJUDICE. 

SO ORDERED this 23

rd day of July, 2024.

_________________________________

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

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