IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA §

§

v. § 2:03-CR-0047 (03)

§

JULIO CESAR JACOBO §

REPORT AND RECOMMENDATION TO DENY, IN PART,

DEFENDANT’S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Came for consideration defendant JULIO CESAR JACOBO’s Motion Under 28 U.S.C. §

2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. For the reasons

hereinafter expressed, the undersigned Magistrate Judge is of the opinion defendant is entitled to

no relief and recommends the motion to vacate, set aside or correct sentence be DENIED except

for defendant’s allegation of ineffective assistance of counsel as it relates to counsel’s alleged

failure to file a direct appeal. An evidentiary hearing will be held on Thursday, September 6,

2007 as to that claim. 

I.

FACTS AND PROCEDURAL HISTORY

On April 29, 2003, defendant, in a seventeen-count indictment, was charged in four

counts with the offenses of conspiracy to possess with intent to distribute methamphetamine,

possession with intent to distribute methamphetamine, possession with intent to distribute a

controlled substance near a school zone, and possession of a firearm in connection with a drug

crime. On June 19, 2003, defendant pled guilty to the conspiracy count. On October 1, 2003,

the District Judge sentenced defendant to a term of 292 months imprisonment and a 5-year term

 

 

FILED

AUGUST 28, 2007

 

 

 

 

 

 KAREN S. MITCHELL

CLERK, U.S. DISTRICT COURT 

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of supervised release. Defendant did not directly appeal his conviction or sentence.

On August 27, 2004, defendant filed the instant Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. On October 12, 2004,

the government filed its response in opposition to defendant’s motion to vacate. On November

1, 2004, defendant filed a reply to the government’s response. On November 2, 2004, defendant

filed a motion to file a supplemental pleading requesting leave to assert new grounds for relief. 

On November 17, 2004, defendant filed a memorandum in support of his proposed motion to

supplement, as well as an appendix. On March 11, 2005, the government filed a response

opposing defendant’s motion to file a supplement, as well as a response to the proposed

supplementation. On April 7, 2005, defendant filed a reply to the government’s response.

II.

DEFENDANT'S ALLEGATIONS

In his motion and accompanying memorandum, defendant raises the following grounds in

support of his contention that his conviction and sentence were imposed in violation of the

Constitution or laws of the United States:

1. Defendant’s guilty plea was involuntary and unknowing, and unlawfully

induced, because trial counsel advised defendant he would receive, at

most, a 10-year sentence; and

2. Counsel was ineffective for failing to:

a. object to the quantity of drugs for which he was held responsible

as a result of the conspiracy offense;

b. object to the Base Offense Level utilized in the Presentence

Report;

c. object to the 2-point level enhancement for possession of a firearm

in furtherance of drug trafficking;

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d. object to the 3-point level enhancement for defendant serving in a

managerial role in the conspiracy; and

e. perfect a direct appeal on defendant’s behalf.

III.

EFFECTIVENESS OF COUNSEL

Ordinarily, in order to prevail on a claim that he was denied his constitutional right to the

effective assistance of counsel, a defendant must satisfy two requirements. "First, he would have

to show that his attorney's conduct fell below an objective standard of reasonableness. Second,

he would have to demonstrate a reasonable probability that he was prejudiced by his attorney's

unprofessional errors." United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989); see also

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The question

of whether a defendant has been subjected to ineffective assistance of counsel is a mixed

question of fact and law. United States v. Rusmisel, 716 F.2d 301, 304 (5th Cir. 1983).

A showing that his attorney's conduct was deficient requires a "showing that counsel

made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant

by the Sixth Amendment." Strickland, 466 U.S. at 687. The performance inquiry must center on

whether counsel's assistance was reasonable considering all the circumstances at the time of

counsel's conduct. Id. at 688-690. As for the issue of prejudice, defendant must do more than

simply allege prejudice, he must "affirmatively prove" prejudice. See Bonvillain v. Blackburn,

780 F.2d 1248, 1253 (5th Cir.), cert. denied, 476 U.S. 1143 (1986) (Strickland, 466 U.S. at 693). 

In the context of a guilty plea, to prove prejudice a defendant “must show that there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 50 (1985).

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Voluntariness of Plea

Defendant alleges counsel informed him he “would only receive, [at] the most, 10 years”

if he pled guilty to the conspiracy count. Defendant was sentenced to a term of approximately

24 years. Defendant alleges his attorney “failed to inform [defendant] of the actual

consequences of the plea.” Defendant concludes his conviction was thus “obtained by [a] plea of

guilty which was unlawfully induced or not made with the understanding of the nature of the

charge and the consequences of the plea.” In effect, defendant claims ineffective assistance of

counsel, to wit: counsel’s erroneous statement regarding his sentencing exposure being limited to

10 years, rendered his plea involuntary.

A guilty plea is "open to attack on the ground that counsel did not provide the defendant

with 'reasonably competent advice." ' Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64

L.Ed.2d 333 (1980) (quoting McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 25

L.Ed.2d 763 (1970)). However, "an erroneous estimate by counsel as to the length of sentence"

is not "necessarily indicative of ineffective assistance." Beckham v. Wainwright, 639 F.2d 262,

265 (5th Cir. 1981). An attorney's "good faith but erroneous prediction of a sentence . . . does

not render the guilty plea involuntary." Johnson v. Massey, 516 F.2d 1001, 1002 (5th Cir. 1975);

accord United States v. Stumpf, 827 F.2d 1027, 1030 (5th Cir. 1987) ("a defendant's reliance on

his attorney's erroneous prediction of leniency is not sufficient to render a guilty plea

involuntary"). As noted in Daniel v. Cockrell, 283 F.3d 697, 703 (5th Cir.2002):

[a] guilty plea is not rendered involuntary by the defendant's mere subjective

understanding that he would receive a lesser sentence. In other words, if the

defendant's expectation of a lesser sentence did not result from a promise or

guarantee by the court, the prosecutor or defense counsel, the guilty plea stands. 

Likewise, a guilty plea is not rendered involuntary because the defendant's

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misunderstanding was based on defense counsel's inaccurate prediction that a

lesser sentence would be imposed.

When a prisoner challenges his plea based on ineffective assistance of counsel, the

“prejudice” requirement “focuses on whether counsel’s constitutionally ineffective performance

affected the outcome of the plea process.” Hill, 474 U.S. at 58. As noted above, to satisfy this

requirement in the plea context, the prisoner “must show that there is a reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going

to trial.” Id. Even when an attorney erroneously estimates the defendant’s potential sentence,

defendant must satisfy this requirement. United States v. Stumpf, 827 F.2d 1027, 1030 (5th Cir.

1987). This Court must consider the totality of the evidence in assessing whether the result

would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at

695-96.

Here, defendant JACOBO alleges his attorney advised him he would not receive more than 10

years if he pled when, in fact, he received approximately 24 years. Defendant has not submitted

any affidavits to support his allegation that his trial counsel misadvised him as to the maximum

sentence he could receive. In fact, defendant has not offered any independent proof to support

this claim. Even though there is great disparity between counsel’s alleged erroneously estimated

sentence and the actual sentence assessed, the defendant’s claims and his unsupported,

conclusory statements are not sufficient to overcome his statements in open court. 

First, the record shows defendant was aware his sentence would be ten years or more

rather than “[at] the most, ten years.” The Factual Resume, which defendant signed, clearly

stated defendant’s minimum penalty was “not less than ten years.” The Plea Agreement, signed

by defendant, also stated defendant would be exposed to “imprisonment for a period not less

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than ten years.” (emphasis added). The Plea Agreement also noted the actual sentence

defendant would receive would be within the discretion of the Court. At defendant’s June 19,

2003 rearraignment, the Court again confirmed defendant understood his counsel could not tell

him exactly what his guidelines would be. In the Presentence Report and again at sentencing,

defendant was again advised that the offense with which he was charged was punishable by

imprisonment for a period of not less than ten years. At the plea hearing, defendant was

specifically advised that the count to which he was pleading guilty carried a minimum sentence

of ten years and a maximum sentence of life imprisonment. Defendant stated he understood the

available range of punishment. Defendant further stated he understood the charge against him,

and stipulated to the truth and correctness of all the facts contained in the factual resume he

signed. Defendant specifically stated no one made him any promises not contained within the

plea agreement. Despite all of these specific admonitions from the Court, defendant persisted

with his guilty plea. Consequently, regardless of what his attorney may have allegedly told him

prior to his plea, defendant was advised through both the plea agreement and at the plea colloquy

that the minimum sentence for the charged offense was ten years – a length more than the

sentence defendant contends counsel advised him he would receive. That defendant “neither

refused to enter his plea nor voiced any objection when confronted with this information

precludes him from arguing that he pled guilty in reliance upon some alternative characterization

of his exposure given to him by his counsel.” United States v. Bjorkman, 270 F.3d 482, 503 (7th

Cir. 2001). Given that defendant knew the Court was charged with sentencing him within the

statutory range of punishment of 10 years up to life imprisonment, that the plea agreement

contained no promise of what the sentence would be, and that he swore in open court that there

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were no promises outside the plea agreements, defendant’s claim is not credible and is without

merit. 

To the extent, if any, defendant claims his plea was rendered involuntary due to an

unfulfilled promise by his counsel, such claim is also without merit. “[A] guilty plea may be

invalid if induced by defense counsel’s unkept promises.” United States v. Cervantes, 132 F.3d

1106, 1110 (5th Cir. 1998). When an alleged unfulfilled promise does not appear in the written

plea agreement and such promise is inconsistent with representations made in open court, the

defendant faces a heavy burden to obtain relief under section 2255 on a claimed involuntary

plea. Id. To obtain relief under section 2255 “on the basis of alleged promises” that are

inconsistent with representations made in open court at the time of the plea or with statements

made in a signed court document, defendant must prove (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. Id.; see also Harmason v. Smith, 888 F.2d 1527, 1529

(5th Cir. 1989). Defendant has not carried that burden. The Plea Agreement stated, “There have

been no guarantees or promises from anyone as to what sentence the Court will impose.” 

Further, defendant claims the promise of a 10-year or less sentence occurred on the day of

sentencing, but does not specify specifically when or where the alleged promise of ten years or

less was made, nor has he identified an eyewitness to the promise. Again, as with his allegation

of misadvice on the part of defense counsel, defendant has not submitted any affidavits to

support his allegation that trial counsel promised him a 10-year or less sentence. Defendant has

not offered any independent proof to support this claim. Not only is there no evidence in the

record a promise was made to defendant he would receive a sentence of less than ten years, the

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record directly refutes such a claim. Defendant’s first ground should be denied.

Quantity of Drugs

In the Indictment, defendant was charged with conspiring “to distribute and to possess

with intent to distribute 500 grams or more of a mixture and substance containing a detectable

amount of methamphetamine.” In the Factual Resume signed by defendant, defendant concurred

that “the overall scope of the conspiracy involved at least 500 grams or more of a mixture and

substance containing a detectable amount of methamphetamine.” At defendant’s June 19, 2003

rearraignment, the United States District Judge also confirmed defendant was pleading guilty to

conspiracy involving at least 500 grams or more of a mixture containing a detectable amount of

methamphetamine and defendant JACOBO confirmed everything in the Factual Resume was

true. Tr. 27. 

In the PSI, it was noted that execution of a search warrant of a house utilized by

defendant to process and store methamphetamine uncovered approximately 20 pounds of

methamphetamine. According to DEA laboratory reports, 5,026.76 grams of methamphetamine

(actual) were seized (the equivalent to 5.026 kilograms of methamphetamine (actual)). PSI at 7. 

At sentencing, defendant confirmed to the Court that he could not “think of anything at all that

[was] not correct in the Presentence Report.” Tr. 30. The Court then proceeded to sentence

defendant to 292 months imprisonment, a sentence at the bottom of the guideline range. The

Court explained:

Now, your guidelines were 292 to 365 months. The Court has imposed a

sentence at the very bottom of the guidelines, but the sentence of 292 months is

justified because of the quantity of drugs you possessed, its purity level, and your

role in the offense. You also received enhancement for the possession of a

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firearm during commission of this offense.

And the Court has considered the fact that your — 292 months is a long time. 

The Court’s considered that in setting your sentence at the bottom of the

guidelines.

Tr. 26. 

Defendant argues counsel was ineffective for failing to object to the quantity of drugs for

which defendant was held accountable in the PSI. Defendant, however, has not identified any

basis upon which counsel could have objected to the amount of drugs, nor has he demonstrated

such an objection would have been successful or how such an objection would have changed his

sentence. Defendant’s claim is conclusory and unsupported by any factual evidence or even

clarified by argument. Conclusory allegations of deficient performance and prejudice are not

sufficient to prove claims of ineffective assistance of counsel. Miller v. Johnson, 200 F.3d 274,

282 (5th Cir. 2000). 

Base Offense Level

In the PSI, defendant was held accountable for approximately 5,026 grams of dmethamphetamine (actual) and was attributed a base offense level of 38. Defendant argues

counsel was ineffective for failing to object to this base offense level.

Again, in his original motion, defendant has not identified the basis on which counsel

could have objected to the base offense level, nor has he demonstrated such an objection would

have been successful or how such an objection would have changed his sentence. Defendant’s

claim is conclusory and unsupported by any factual evidence or even clarified by argument. 

Conclusory allegations of deficient performance and prejudice are not sufficient to prove claims

of ineffective assistance of counsel. Miller, 200 F.3d at 282.

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Gun Enhancement

In the Factual Resume, defendant acknowledged three (3) firearms were found in his

residence. The PSI noted, pursuant to USSG § 2D1.1(b)(1), two (2) levels are added to the base

offense level if a dangerous weapon (including a firearm) was possessed. The PSI , finding

defendant had three (3) firearms located in his residence, added two points to defendant’s base

offense level. Defendant argues counsel was deficient for failing to object to the 2-point

enhancement for carrying a firearm during and in relation to a drug trafficking crime.

Again, defendant has not explained why he contends he should not have received the

enhancement for possession of a firearm, nor has he identified the basis on which counsel should

have objected to the gun enhancement. Defendant’s claim is conclusory and unsupported by any

factual evidence or even clarified by argument. Conclusory allegations of deficient performance

and prejudice are not sufficient to prove claims of ineffective assistance of counsel. Miller, 200

F.3d at 282. Defendant’s ground should be denied.

Managerial Role Enhancement

In the Factual Resume defendant conceded that he and two other co-defendants “were

responsible for the processing, storage, and distribution of methamphetamine in Amarillo,

Texas.” He also conceded he “oversaw the distribution of methamphetamine and the collection

of drug proceeds in Amarillo, Texas.” At rearraignment, defendant testified everything in the

Factual Resume was true. In the PSI, defendant’s offense level was increased by three (3) points

for defendant’s involvement in the conspiracy as a “manager and/or supervisor.” Although the

PSI found defendant was “extensively involved in the conspiracy,” it was noted defendant could

not be considered an organizer or leader. Defendant argues counsel was ineffective for failing to

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object to the 3-point enhancement for his managerial or supervisory role in the offense. 

Again, however, defendant has not identified the basis on which counsel could have

objected to the enhancement, nor has he demonstrated such an objection would have been

successful or how such an objection would have changed his sentence. Defendant’s claim is

conclusory and unsupported by any factual evidence or even clarified by argument. Conclusory

allegations of deficient performance and prejudice are not sufficient to prove claims of

ineffective assistance of counsel. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). This

ground should be denied.

Failure to File Appeal

Defendant argues counsel was ineffective for failing to pursue a direct appeal on his

behalf. Defendant claims he not only informed his attorney he wished to appeal but, at

sentencing, specifically instructed counsel to file an appeal raising the issues set forth above. 

Defendant contends he did not waive his right to appeal as part of his plea agreement, was never

informed he could not appeal his sentence and, in fact, specifically had the right to appeal his

sentence under 18 U.S.C. § 3742(a). Defendant maintains he would have attempted to file an

appeal on his own had he known counsel was not going to appeal on his behalf. Defendant

argues he was prejudiced by counsel’s failure to file a notice of appeal because it “took from

petitioner his post conviction right to an appeal.” Defendant concludes prejudice is presumed

and that he does not have to specify what points he would have raised on appeal or show such

points would likely have had merit because defense counsel denied defendant review of his case

by a higher court by failing to perfect an appeal.

To demonstrate ineffective assistance of counsel based on a claim that counsel failed to

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1

“[F]ailure of counsel to timely file an appeal upon request of the defendant . . . would constitute ineffective assistance

of counsel entitling the defendant to post-conviction relief in the form of an out-of-time appeal.” Barrientos v. United States,

668 F.2d 838, 842 (5th Cir.1982).

2

Defendant, in his reply, argues counsel’s statement in his affidavit that defendant did not advise him to appeal his

“conviction” should not be considered as evidence refuting his claims because defendant never disputed the conviction, rather,

he instructed counsel to appeal his “sentence.” The undersigned does not afford such significance to trial counsel’s choice of

wording as an appeal would encompass a challenge to all aspects of the underlying proceeding, even if the grounds of error

raised may attack only the sentence assessed as a result of the conviction.

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file a notice of appeal, a defendant must show that the failure to file fell below an objective

standard of reasonableness and that it prejudiced the defendant. See Roe v. Flores-Ortega, 528

U.S. 470, 484, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Failing to file a notice when requested

to do so can constitute deficient performance. Id. at 477-78. As to prejudice, the defendant need

not demonstrate that he would have been able to raise meritorious issues on appeal. Id. at 486. 

Rather, he must demonstrate only that there is a reasonable probability that, but for counsel's

failure, he would have appealed. Id. Defense counsel, however, does not have a duty to perfect

an appeal on behalf of a convicted defendant unless and until the defendant makes it known that

he wants to appeal. Childs v. Collins, 995 F.2d 67, 69 (5th Cir. 1993). The decision to appeal or

not appeal is that of the defendant, not defense counsel. Counsel will only be found to be

deficient if he fails to follow the defendant’s express instructions with respect to an appeal. Roe

v. Flores-Ortega, 528 U.S. 470, 478 (2000).1 

On September 29, 2004, defendant’s trial counsel submitted an affidavit, sworn to and

the truth of which was declared under penalty of perjury, wherein he averred, “Mr. Jacobo never

expressed to me, in Spanish or English, a desire to appeal his conviction.”2 Defendant JACOBO

claims, in his pleadings, that he requested his attorney file a notice of appeal on the date of his

sentencing. The court records on file do not resolve this issue. Consequently, an evidentiary

hearing will be held on Thursday, September 6, 2007 regarding this claim.

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IV.

SUPPLEMENTAL PLEADING

In a motion to file a supplemental pleading filed November 2, 2004, after the

government’s response to defendant’s motion to vacate had been filed, defendant sought leave to

present three (3) new grounds, to wit:

1. Defendant was unconstitutionally prosecuted on an information rather

than an indictment returned by a grand jury;

2. The district court failed to inform defendant of his right to appeal and that

he would be afforded an attorney for that appeal if he desired as provided

in Rule 32(c)(5) of the Federal Rules of Criminal Procedure; and

3. The indictment against defendant failed to allege a quantity of narcotics as

an element of the offense in violation of Apprendi v. New Jersey.

In a memorandum of law in support of his motion to file the supplemental pleading, defendant

also attempts to further expound on his original grounds and the above supplemental grounds by

asserting:

1. Counsel was ineffective for failing to object to the quantity and type of

methamphetamine involved in the conspiracy; and

2. Counsel was ineffective for allowing defendant to plead guilty when the

indictment against defendant failed to allege a quantity of narcotics as an

element of the offense in violation of Apprendi v. New Jersey.

Information or Indictment

Defendant asserts he was unconstitutionally prosecuted on an information rather than an

indictment returned by a grand jury. Defendant, however, was charged by indictment on April

29, 2003 and pled guilty to count one of that indictment. Defendant’s argument is without merit

and should be denied.

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Section 32 Advice

Defendant also appears to allege his conviction is unconstitutional because the district

court failed to inform defendant, after sentencing, of his right to appeal his sentence and that he

would be afforded an attorney for that appeal if he desired. See Fed. R. Crim. Proc. 32(j)(1)(B),

(C). Defendant asserts he had no knowledge of his right to appeal, and that had the Court

informed him of his appellate rights, he “would have most certainly pursued his appellate

rights.” Defendant maintains the Court’s failure to advise him requires a vacatur of his sentence 

The government concedes it does not appear the court informed defendant of his right to

appeal his sentence. Even assuming a violation of Rule 32, however, the defendant is not

necessarily entitled to collateral relief. Such a violation does not entitle a defendant to collateral

relief unless the defendant can show he was prejudiced by the court’s failure to inform him of the

right to appeal. Peguero v. United States, 526 U.S. 23, 27 (1999). If a defendant had

independent knowledge of his right to appeal, there is no prejudice. Id. at 29-30.

It is clear defendant had independent knowledge of the right to appeal. In his original

motion to vacate, defendant asserts counsel was ineffective for failing to appeal his sentence. In

the memorandum to his original motion, defendant acknowledges he knew he had a right to

appeal when he was sentenced, that he specifically requested counsel appeal his sentence, and

that, had counsel told him he was not going to file an appeal, defendant would have filed it

himself. See Memorandum, pp. 5-10. Clearly, defendant was aware he had a right to appeal his

sentence and was not prejudiced by the Court’s failure to inform him of that right. Defendant is

not entitled to relief on this ground .

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Apprendi

Defendant pled guilty to conspiracy to distribute and possess with intent to distribute 500

grams or more of a mixture and substance containing a detectable amount of methamphetamine. 

Defendant contends his conviction is invalid because the indictment against him failed to allege

a quantity of drugs as an element of the offense in violation of Apprendi v. New Jersey, 530 U.S.

466 (2000). Defendant argues that under Apprendi, he could not be held responsible for more

than 500 grams of methamphetamine because the indictment did not state a specific quantity of

the drug. Defendant also asserts counsel was ineffective for allowing him to plead guilty when

the indictment against defendant was in violation of Apprendi. 

An indictment is sufficient to satisfy Apprendi when it alleges a drug quantity range, as

opposed to a precise drug quantity. United States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001). 

An indictment also satisfies Apprendi when it alleges a defendant possessed “more than” a

certain amount of drugs, without an upper end to the range, if the lower end amount charged

clearly identifies the applicable penalty for that quantity, and the sentence assessed is not in

excess of the statutory maximum permitted by the statute. See United States v. Moreci, 283 F.3d

293 (2002) (the identification of “over 50 kilograms” without an explicit upper range quantity in

the indictment sufficiently alleged a drug quantity so as to avoid an Apprendi error). 

Here, the indictment against defendant charged, and defendant admitted, responsibility

for more than 500 grams of methamphetamine. Section 21 U.S.C. 841(b)(1)(A)(viii), the penalty

enhancement statute applicable to this charged quantity of methamphetamine, provides for a

maximum sentence of no more than life. Defendant’s sentence is within the range of punishment

set forth in section 841(b)(1)(A)(viii). Apprendi is not applicable to defendant’s sentence.

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An objection, on the basis of Apprendi, to the amount of methamphetamine for which

defendant was held responsible would have been frivolous. Consequently, counsel cannot be

found deficient for failing to make such an objection. Defendant’s claims are without merit and

should be denied.

Quantity and Type of Methamphetamine

Defendant asserts his sentence should be vacated because counsel was ineffective for

failing to object to the quantity and “type” of methamphetamine involved in the conspiracy. 

Defendant’s base offense was determined on his accountability for 5,026 grams of actual

methamphetamine. Defendant appears to argue that since the indictment alleged the conspiracy

involved “500 grams or more of a mixture and substance containing a detectable amount of

methamphetamine,” his base offense level should have been determined on the “entire weight of

the mixture or substance” rather than on the “weight of the methamphetamine (actual).” 

Defendant then makes the argument that his responsibility was limited to the 500 grams of a

mixture alleged in the indictment, rather than based on the 20 pounds of methamphetamine

seized from the residence utilized by defendant, thereby warranting a base offense level of 32

rather than 38. That contention has previously been addressed. 

As used in 21 U.S.C. 841(b)(1)(A)(viii), the “500 grams of methamphetamine” refers to

500 grams “of the drug however it is found.” United States v. Frazier, 28 F.3d 99, 101 (11th Cir.

1994). The amount of methamphetamine for which defendant was held responsible was 5,026

grams of actual methamphetamine, an amount determined by an analysis of the 20 pounds of

methamphetamine found at the residence utilized by defendant. Defendant has not demonstrated

counsel could have validly objected to the use of the “actual” amount of drug as opposed to the

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“mixture.” Moreover, defendant cannot show the use of the “mixture” quantity would have

resulted in a lower base offense level as the offense level is to be determined using the “greater”

of the mixture calculation or the actual calculation. Defendant has not proven deficient

representation by his counsel. Defendant’s claim is without merit and should be denied.

V.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that motion to vacate filed by defendant JULIO CESAR JACOBO be

DENIED except for defendant’s allegation of ineffective assistance of counsel as it relates to

counsel’s alleged failure to file a direct appeal. This issue is scheduled for evidentiary hearing

on Thursday, September 6, 2007.

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 28th day of August 2007.

 ______________________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

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2:04-CV-0226

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the “entered” date directly

above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or

transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or

electronic means, three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). 

Therefore, any objections must be filed on or before the fourteenth (14th) day after this

recommendation is filed as indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed. R.

Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local

Rules of the United States District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

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