UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

UNITED STATES OF AMERICA 

 v. 

AURELIO CERVANTES 

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Case No. 3:15-CR-086 (1) JD 

 3:17-CV-950 JD 

OPINION AND ORDER 

Defendant Aurelio Cervantes has filed a motion under Rule 59(e) [DE 314], asking that 

the Court reconsider its dismissal of his motion under § 2255. For the following reasons, 

Cervantes’ motion will be denied. 

A. New Arguments

 Motions to reconsider “serve a limited function: to correct manifest errors of law or fact 

or to present newly discovered evidence.” Caisse Nationale de Credit Agricole v. CBI Indus., 

Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (quoting Keene Corp. v. Int’l Fidelity Ins. Co., 561 F. 

Supp. 656, 665 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984)). “Reconsideration is not an 

appropriate forum for rehashing previously rejected arguments or arguing matters that could 

have been heard during the pendency of the previous motion.” Caisse Nationale de Credit 

Agricole, 90 F.3d at 1270. 

 Cervantes’ motion presents only two new arguments. First, he points out the Court’s 

statement from its dismissal order, that “the Court expressly stated [at the sentencing hearing] 

that it would have issued the same sentence even if it had sustained Mr. Milner’s objection to the 

application of § 3B1.1(a).” [DE 309 at 3] For this reason, the Court held that Cervantes could not 

demonstrate the requisite prejudice under Strickland to show that he suffered from ineffective 

assistance of counsel. Id. Cervantes now argues that the Court cannot rely on statements 
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indicating that it would have imposed the same sentence absent the application of a certain 

Guidelines provision. [DE 314 at 4] He cites two cases, both from the Ninth Circuit. See United 

States v. Menyweather, 447 F.3d 625 (9th Cir. 2006); United States v. Munoz-Camarena, 621 

F.3d 967 (9th Cir. 2010). This Court is not bound by opinions from other circuits, see United 

States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008), and it did not err by stating at sentencing that 

it would have imposed the same sentence. See United States v. Abbas, 560 F.3d 660, 666-67 (7th 

Cir. 2009) (concluding that misapplication of upward adjustment was harmless because district 

court explicitly said it would impose same sentence even if increase did not apply). 

Putting the Seventh Circuit’s rule aside, the cases Cervantes cites still do not stand for 

what he promotes. In Menyweather, the Ninth Circuit held that it was not an abuse of discretion

for the district court to depart downwards from the Guidelines sentence, and that, even if the 

district court had erred, “any error was harmless ... in view of [that circuit’s] belief that the 

[district court] would impose the same sentence again, having steadfastly maintained its position 

in the face of two opportunities to revise its sentence.” 447 F.3d at 628. 

Cervantes believes that this harmlessness approach has been per se invalidated by 

subsequent opinions, namely Munoz-Camarena, but that is not the case. In Munoz-Camarena, 

the Ninth Circuit noted that “Supreme Court authority has effectively overruled the application 

of the harmless error analysis employed in Menyweather,” but only when applied to the 

miscalculation of a Guidelines sentence. 621 F.3d at 969-70 (citing cases). Miscalculation of the 

Guidelines range is not at issue in this case. In fact, neither was it at issue in Menyweather. The 

Ninth Circuit realized this and indeed withdrew its first Munoz-Camarena opinion, which 

Cervantes cites. After rehearing, the Ninth clarified: 

In United States v. Menyweather, 447 F.3d 625 (9th Cir. 2006), we applied 

harmless error analysis to the district court’s reasons for departing downward 
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from a Guidelines range. There was no dispute on appeal about the Guidelines 

calculation or its correctness, id. at 630, but only about whether the district gave a 

proper and adequate explanation for the significant downward departure. 

Therefore, Menyweather did not decide anything about whether harmless error 

review is available in the context of an incorrect Guidelines calculation. It is 

distinguishable. 

United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.4 (9th Cir. 2011). Cervantes bases his 

position on an inaccurate reading of two non-binding opinions. His argument fails. 

 Second, Cervantes asserts that the Court deprived him of due process by dismissing his § 

2255 motion prior to ordering any briefing schedule. According to Cervantes, the provisions in 

the Federal Rules of Criminal Procedure regarding the government’s response and a petitioner’s 

reply create a constitutional “right” that prevent the preliminary dismissal of his claims. [DE 314 

at 4] Cervantes cites no support for this argument and ignores the procedure contained in Rule 

4(b) of those governing § 2255, which compels the district court to dismiss a § 2255 petition “[i]f 

it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that 

the moving party is not entitled to relief ....” As evident from the filings, and as explained in the 

Court’s prior order, Cervantes’ § 2255 motion warranted no relief. 

B. Repetitive Arguments 

The remainder of Cervantes’ motion to reconsider does not present any new claims, nor 

does it raise any new evidence or arguments that were not already before the Court. Instead, it 

merely rehashes the same arguments that the Court already considered and discussed in 

dismissing the § 2255 motion. Cervantes therefore presents no valid basis for reconsideration, as 

required, so his motion must be denied. 

Regardless, the arguments that Cervantes raises in his new motion are all meritless. For 

example, Cervantes continues to advance his belief that his involvement in the underlying 

conspiracy in this case (which was indeed charged against him in the superseding indictment at 
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Count 1) could not have been considered at sentencing because he only plead to one count of 

possession with intent to distribute: “this Honorable Court ... constructively amended the crime 

charged ... to a second charge of conspiracy that was dismissed by the Government”; and “the 

Government voluntarily dismissed the conspiracy count ... [t]herefore, this Honorable Court 

lacked any jurisdiction over the conspiracy count.” [DE 314 at 2-3] As explained in the Court’s 

prior order and as dispositive once again, the Sentencing Guidelines require the Court to consider 

as relevant conduct “all acts and omissions ... that were part of the same course of conduct or 

common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2) (emphasis added). 

Relevant conduct pertaining to Cervantes’ conviction for possession with intent to distribute 

plainly encompasses the larger conspiracy of which the single convicted offense was a part. 

Cervantes’ remaining arguments regarding the application of the aggravating role 

enhancement under U.S.S.G. § 3B1.1(a) are even less availing. Cervantes insists without 

explanation that he should be granted the opportunity to take a polygraph test to show that he did 

not personally know “the majority” of his co-defendants. [DE 314 at 2-3] He also takes issue 

with the fact that the presentence report labeled him “more of a middle man who answered to 

others in the drug trade ....” Id. 9 (citing DE 190 ¶ 15). But what the presentence report also

states immediately thereafter – and what Cervantes blatantly omitted from his brief – is that he 

“could still be considered for a role adjustment.” [DE 190 ¶ 15] And that’s just what happened. 

As the Court explained in its prior order, the aggravating role enhancement was well-warranted 

based on the Court’s findings that Cervantes personally knew and directly dealt with his coconspirators, made organizational decisions affecting the drug distribution scheme, compensated 

drug couriers, dealt directly with a Mexican drug cartel to obtain wholesale quantities of cocaine, 

and answered to no one other than the cartel that supplied him. 
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CONCLUSION 

 For all the foregoing reasons, Cervantes’ Motion to Reconsider pursuant to Fed. R. Crim. 

P. 59(e) is DENIED. 

SO ORDERED. 

ENTERED: May 25, 2018 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court