IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GUILLERMO ZARCO VILLASENOR, § 

ID # 78308-097, § 

 Movant, § 

§ No. 3:22-CV-1781-M-BT

v. § No. 3:19-CR-373-M(2) 

§ 

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 August 12, 2022 (doc. 1), is DENIED with 

prejudice. 

I. BACKGROUND

Guillermo Zarco Villasenor (Movant) challenges his federal conviction and sentence in 

Cause No. 3:19-CR-373-M(2). The respondent is the United States of America (Government). 

A. Conviction and Sentencing

After first being charged by complaint, Movant was charged by indictment with one count 

of conspiracy to possess with intent to distribute a controlled substance (Count One), and one count 

of possession with intent to distribute a controlled substance (Count Two). (See docs. 1, 22.)1 He 

pled guilty to Count Two under a plea agreement. (See docs. 66, 71.) 

For purposes of sentencing, the United States Probation Office (USPO) prepared a presentence investigation report (PSR). (See doc. 80-1.) The PSR held Movant accountable for 49,179 

kilograms of converted drug weight based on controlled drug transactions involving d1 Unless otherwise indicated, all document numbers refer to the docket number assigned in the underlying criminal 

action, 3:19-CR-373-M(2).

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methamphetamine hydrocholoride (ice) and marijuana quantities supplied by Movant and a codefendant to a confidential human source (CHS) in person or by mail, including one mailed drug 

transaction that was stolen by an unidentified co-conspirator. (See id. at ¶¶ 12, 16.) His base offense 

level was 36 based on the quantity of drugs for which he was held accountable. (See id. at ¶ 22.) 

Two levels were added because the offense involved methamphetamine imported from Mexico

and Movant was not subject to a mitigating role adjustment, and three levels were deducted for 

acceptance of responsibility, resulting in a total offense level of 35. (See id. at ¶¶ 23, 28-30.) Based 

on a total offense level of 35 and a criminal history category of I, his guideline imprisonment range 

was 168 to 210 months. (See id. at ¶ 54.)

Regarding the stolen drug transaction, Movant objected that he should be held accountable 

for a kilogram quantity of methamphetamine, rather than ice, on the basis that there was 

insufficient evidence to show that the purity of the stolen methamphetamine qualified as ice. (See 

doc. 108 at 2-5.) Movant also requested a downward variance on the basis that he was not a leader 

or organizer in the offense, but instead worked and acted at the direction of his co-defendant. (See 

id. at 5-8.) In a PSR addendum addressing Movant’s objections, the USPO supported the PSR as 

written. (See doc. 110-1.) 

After hearing arguments by the parties at Movant’s sentencing hearing, the court overruled 

the objection regarding the stolen drug package and determined that a modest downward variance 

from the applicable guidelines range was appropriate. (See doc. 121.) By judgment dated February 

8, 2021, the court sentenced Movant to 150 months’ imprisonment, to be followed by three years 

of supervised release. (See doc. 114 at 1-3.) The Fifth Circuit dismissed his appeal as frivolous, 

and Movant did not file a petition for a writ of certiorari with the Supreme Court. (See docs. 125-

26.) 

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B. Substantive Claims

In his § 2255 motion, Movant asserts multiple grounds of ineffective assistance of counsel. 

(See No. 3:22-CV-1781-M-BT, doc. 1 at 4-8.) The Government filed a response on December 9, 

2022. (See id., doc. 13.) Movant did not file a reply. 

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)). Post-conviction “[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of 

constitutional rights 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 contends that counsel rendered ineffective assistance in connection with 

sentencing. (See No. 3:22-CV-1781-M-BT, doc. 1 at 4-8; id., doc. 2 at 5-19.) 

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 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 

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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 the wide 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 courts must 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. 

A. Deportable Defendant

Movant contends that counsel was ineffective because he did not seek a downward 

departure or variance based on Movant’s status as a deportable defendant. (See No. 3:22-CV-1781-

M-BT, doc. 1 at 4; id., doc. 2 at 5-8.) He complains that because of his deportable status, he is 

ineligible to participate in certain prison programs, to be assigned to a minimum security prison,

or for pre-release placement in a halfway house or home confinement. (See id., doc. 2 at 5-8.) He 

alleges that counsel should have moved for a downward departure or variance on the bases that his 

ineligibility to benefit from said programs, assignment, and pre-release placement violated his 

equal protection rights and that the sentence would cause a fortuitous increase in the severity of 

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his sentence under United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994). (See id., doc. 1 at 4; id., 

doc. 2 at 5-7.) 

Even assuming for purposes of this motion only that counsel was deficient for failing to 

seek a downward departure or variance based on Movant’s status as a deportable defendant as 

alleged, Strickland also requires a showing of resulting prejudice, i.e., a reasonable probability that 

the result of the proceedings would have been different but for counsel’s alleged deficiency. In the 

sentencing context, this requires a showing that the alleged deficiency of counsel created a 

reasonable probability that Movant’s sentence would have been less harsh. See, e.g., Glover v. 

United States, 531 U.S. 198, 200 (2001). 

Here, the record establishes that the court was advised about and was aware of Movant’s 

status as a deportable alien. (See doc. 80-1 at 2, ¶¶ 31, 41, 59; doc. 121 at 15, 17-20.) Further, 

Movant’s equal protection challenges have been rejected by the courts and he identifies no binding 

or persuasive authority holding otherwise; nor has he shown that a departure or variance from the 

guidelines based on his status would have been reasonable. See, e.g., Constantino-Garrido v. 

United States, Civil No. M-10-388, 2013 WL 12357599, at *9 (S.D. Tex. June 14, 2013); see also

Smith, 27 F.3d at 655 (discussing rarity of circumstances that would justify downward departure 

based on deportable status). Movant provides no facts or evidence sufficient to show a reasonable 

probability that counsel would have been successful in obtaining a downward departure or variance 

based on Movant’s status as a deportable alien and that Movant’s sentence would have been less 

harsh had counsel sought such a departure or variance. He has not satisfied his burden to show 

prejudice under the second prong of Strickland, and the claim is denied. 

B. Safety Valve 

Movant contends that counsel was ineffective because he “failed [to] pursue [a] downward 

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departure under the safety valve provision USSG Section 5C1.2.” (No. 3:22-CV-1781-M-BT, doc. 

2 at 9; see also id., doc. 1 at 5.) 

Section 5C1.2(a) of the sentencing guidelines “include[s] a safety-valve provision, which 

generally mirrors [18 U.S.C.] § 3553(f), and provides a two-level offense level reduction for 

defendants who satisfy the safety-valve requirements.” United States v. Jenkins, No. 22-30557, 

2023 WL 4351241, at *1 (5th Cir. July 5, 2023) (citing U.S.S.G. §§ 2D1.1(b)(18), 5C1.2(a)(1)). 

It, like its § 3553(f) reflection, “exempts certain defendants convicted of controlled-substance 

offenses from mandatory-minimum sentences,” if they meet the criteria set forth in § 3553(f)(1)-

(5). United States v. Montero, No. 21-30767, 2023 WL 2400746, at *1 (5th Cir. Mar. 8, 2023). 

Here, the record shows that Movant pled guilty to a drug possession offense under 21 

U.S.C. §§ 841(a)(1) and (b)(1)(C). (See docs. 22, 66, 71, 114.) His offense of conviction does not 

carry a statutory minimum sentence. (See doc. 122 at 13-14); Terry v. United States, 593 U.S. 486, 

497 (2021) (Sotomayor, J., concurring) (“As a baseline, § 841(b)(1)(C) specifies a maximum 

penalty of 20 years imprisonment, with no mandatory minimum.”). Because his offense did not 

have a statutory minimum sentence from which he could have received relief under the safetyvalve provision of § 5C1.2(a), any argument raised by counsel under this provision would have 

been without merit. As counsel is not deficient for failing to raise a meritless argument, Movant 

has failed to satisfy the first prong of Strickland. See Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th 

Cir. 1995) (“Counsel cannot be deficient for failing to press a frivolous point.”).

Because Movant has not identified a meritorious basis upon which counsel could have 

argued for a reduction to his offense level under the safety valve provision of § 5C1.2, he also has 

failed to show Strickland prejudice. See United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) 

(“An attorney’s failure to raise a meritless argument . . . cannot form the basis of a successful 

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ineffective assistance of counsel claim because the result of the proceeding would not have been 

different had the attorney raised the issue.”). Movant has failed to satisfy both Strickland prongs, 

and the claim is denied.

C. Mitigating Role Reduction 

Movant contends that counsel was ineffective for failing to seek a mitigating role reduction 

under U.S.S.G. § 3B1.2. (See No. 3:22-CV-1781-M-BT, doc. 1 at 7; id., doc. 2 at 11-12.) 

Under § 3B1.2 of the sentencing guidelines, a defendant who is a “minimal participant” 

receives a four-level reduction to his offense level, a defendant who is “minor participant” receives 

a two-level reduction, and a defendant falling between those two categories receives a three-level 

reduction. See U.S.S.G. § 3B1.2. This section applies only to a defendant who plays a part in 

committing the offense that makes him “substantially less culpable” than the average participant 

in the criminal activity. U.S.S.G. § 3B1.2, cmt. n.3(A); see also United States v. Thomas, 963 F.2d 

63, 65 (5th Cir. 1992) (“Even if other codefendants were more culpable, that does not automatically 

qualify [defendant] for either minor or minimal status. Each participant must be separately 

assessed.”). 

Here, Movant presents only conclusory statements that the facts set forth in the PSR 

detailing his and his co-defendant’s respective roles in the criminal activity and the arguments 

raised by counsel – both in a motion for a downward variance and at the sentencing hearing – 

establish that he was a minor or minimal participant in the offense under § 3B1.2.2

 (See No. 3:22-

CV-1781-M-BT, doc. 2 at 11-12.) Although counsel did not seek a mitigating role adjustment

2 Movant also makes conclusory allegations unsupported by the record. (See No. 3:22-CV-1781-M-BT, doc. 2 at 11.)

“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.” Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). His unsubstantiated and conclusory

allegations are insufficient to carry his burden under Strickland and do not save his claim. 

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under the sentencing guidelines in objections to the PSR, he moved for a sentence reduction based 

on Movant’s role in the offense in comparison to his co-defendant, and the court expressly 

considered whether a mitigating role adjustment was appropriate in Movant’s case at the 

sentencing hearing. (See doc. 108; doc. 121 at 6-7. 13-15.) The court decided that a modest 

downward variance – but not one amounting to a mitigating role adjustment – was warranted to 

reflect the different roles of Movant and his co-defendant. (See doc. 121 at 17.) On this record, 

Movant fails to show a reasonable probability that his sentence would have been less harsh had 

counsel further sought a role adjustment under § 3B1.2. Because his allegations fail to satisfy the 

second prong of Strickland, the performance prong need not be addressed. See Amos v. Scott, 61 

F.3d 333, 348 (5th Cir. 1995). The claim is denied. 

D. Acceptance of Responsibility

Movant contends that counsel was ineffective because he failed to move for a three-level 

reduction to Movant’s offense level for acceptance of responsibility, rather than only a two-level 

reduction. (See No. 3:22-CV-1781-M-BT, doc. 1 at 8; id., doc. 2 at 13.) 

The record shows that Movant received a three-level reduction to his offense level for 

acceptance of responsibility. (See doc. 80-1 at ¶¶ 29-30.) As such, he fails to show both that counsel 

was deficient for failing to further move for or request an offense level reduction that Movant had 

already received, and that he suffered prejudice as a result of counsel’s alleged deficiency under 

Strickland. Movant’s meritless claim is denied. 

E. Drug Weight and Purity

In his brief, Movant contends that counsel was ineffective because he failed to properly 

challenge the purity and quantities of the drugs attributed to him for purposes of sentencing. (See 

No. 3:22-CV-1781-M-BT, doc. 2 at 14-17.) He argues that counsel should have challenged the 

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drug quantities for which Movant was held accountable on the basis that the Government failed to 

establish that they could be classified as ice, rather than as a mixture of methamphetamine as 

charged in the indictment. (See id., doc. 2 at 16.) He also argues that counsel should have 

challenged the drug purity analysis as a violation of the confrontation clause under Bullcoming v. 

New Mexico, 564 U.S. 647 (2011). (See id., doc. 2 at 17.) 

Movant’s claim is without merit. Regarding his allegations that counsel should have 

challenged the computation of the drug quantities attributed to him as ice, rather than as a mixture 

of methamphetamine as charged in the indictment, the Fifth Circuit has held that “[r]egardless of 

the language of the indictment, the [Sentencing] Guidelines advise the district court to apply the 

offense level determined by the weight of the pure methamphetamine in the mixture or substance 

if doing so would result in a higher offense level.” United States v. Aparicio, 963 F.3d 470, 475 

(5th Cir. 2020); see also United States v. Hernandez-Alcantar, No. 19-40505, 2023 WL 107524, 

at *1 (5th Cir. Jan. 4, 2023) (“‘The choice of which [methamphetamine] multiplier to use is not 

determined by the language of the indictment.’”). Because the computation of the 

methamphetamine quantities as ice was proper under the guidelines, any objection by counsel 

would have been without merit. Additionally, because Movant has no right of confrontation at his 

sentencing hearing, any challenge by counsel based on same would have been without merit. As 

explained, counsel is not deficient for failing to make a meritless argument, and Movant therefore 

fails to satisfy the first prong of Strickland. See Sones, 61 F.3d at 415 n.5.

Since Movant has not identified a meritorious basis upon which counsel could have 

challenged the drug purity or quantities attributed to him, he also has failed to show resulting 

prejudice under the second prong of Strickland. See.Kimler, 167 F.3d at 893. Because Movant has 

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failed to satisfy both Strickland prongs, the claim is denied.3

F. Constructive Amendment

In his brief, Movant also contends that counsel was ineffective because he failed to

challenge a constructive amendment of the indictment. (See No. 3:22-CV-1781-M-BT, doc. 2 at 

17-19.) Movant’s claim hinges on the premise that the indictment was constructively amended 

because he was sentenced based on quantities of ice attributed to him, rather than quantities of a 

mixture of methamphetamine as charged in the indictment, resulting in a harsher sentence. (See 

id.) 

Movant’s claim fails. The record shows, and Movant alleges, no discrepancy between the

offense charged in Count Two of the indictment and the offense to which he pled guilty. (See doc. 

22 at 2; doc. 114 at 1; doc. 122 at 12-15, 20.) That his guideline imprisonment range for purposes 

of sentencing was calculated in part based on drug quantities of ice, rather than a mixture of 

methamphetamine, did not alter his offense of conviction, and as previously explained, a 

defendant’s offense level for an offense like Movant’s is “determined by the weight of the pure 

methamphetamine in the mixture or substance,” irrespective of the language contained in the 

indictment. Aparicio, 963 F.3d at 475. Accordingly, Movant fails to identify a meritorious basis 

on which counsel could have challenged the indictment; as such he has failed to show both 

deficiency of counsel and resulting prejudice under Strickland. The claim is denied. 

IV. EVIDENTIARY HEARING

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

3 Movant also appears to argue that counsel was ineffective for not challenging the purity of the stolen package of 

drugs that was attributed to him. (See No. 3:22-CV-1781-M-BT, doc. 2 at 15.) His claim is refuted by the record

because counsel did in fact object and raise arguments on this basis in writing and at the sentencing hearing. (See doc.

108 at 2-5; doc. 121 at 5, 8-9.) His unsubstantiated allegations are without merit and do not satisfy his burden under 

Strickland. His claim is therefore denied on this additional basis. 

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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 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.

V. CONCLUSION

For the foregoing reasons, the pro se motion to vacate, set aside, or correct sentence under 

28 U.S.C. § 2255, received on August 12, 2022 (doc. 1), is DENIED with prejudice.

SO ORDERED.

SIGNED this 10th day of June, 2024.

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