preponderance standard, and nothing in the holding of Apprendi increases the burden
of persuasion that applies to facts pertinent to sentencing. Id.; United States v. Gilliam,
255 F.3d 428, 436 (7th Cir. 2001).

Vidrio’s third claim, ineffective assistance of counsel, was not raised on direct
appeal. Constitutional errors that are not presented on appeal can be raised in a § 2255
motion if the petitioner can show good cause existed for the failure to raise the issue and
actual prejudice resulted, or if the refusal to consider the claims would effect a
fundamental miscarriage of justice. United States v. Lane, 267 F.3d 715, 721 (7th Cir.
2001); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Ifa petitioner
fails to make a sufficient showing of these factors, the claim is deemed waived. Lane,
267 F.3d at 721. Vidrio has not offered any basis on which we could conclude that his
failure to present this argument to the court of appeals falls within the exceptions to the
waiver rule.

Moreover, even if Vidrio had convinced us that he did not waive his right to
argue ineffective assistance of counsel, the claimed deficiencies in his attorney’s
performance do not amount to ineffective assistance of counsel. To qualify as
ineffective assistance, an attorney’s performance must not only be deficient but also
mustresult in prejudice to the defendant. To make a sufficient showing on the prejudice

prong, the defendant must show a reasonable probability that but for counsel’s

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below the 40-year maximum for the offense with which he was charged, Apprendi’s
holding was not implicated. Id. at 568-69.
DISCUSSION

Vidrio now advocates that his sentence should be vacated on three grounds. Two
are based on the premise that this court’s actions during sentencing were in violation
of Apprendi; the third claims that defense counsel’s actions during and after the trial
amounted to ineffective assistance.

Normally, an issue not raised on direct appeal may not be reviewed collaterally.
Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000). Because the Seventh
Circuit has already addressed Vidrio’s Apprendi arguments on direct appeal, he may not
launch another volley of attacks with a different procedural vehicle. In addition, no
matter how many times Vidrio argues that Apprendi dictates a different outcome in this
case, he cannot change the fact that the amount of his sentence is well below the 40-
year maximum set by the statute. Simply put, Apprendi has no relevance or application
to Vidrio’s case. United States v. Hill, 252 F.3d 919, 921 (7th Cir. 2001).

Vidrio’s second argument, that the court was required at sentencing to find the
quantity of drugs was shown beyond a reasonable doubt rather than by a preponderance
of the evidence, is simply wrong. Brannigan v. United States, 249 F.3d 584, 587 (7th

Cir. 2001). Relevant conduct considered for sentencing purposes is decided under a

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shortcomings, the proceeding would have had a different result. United States v.
Traeger, 289 F.3d 461, 470 (7th Cir. 2002). A record that is silent as to an attorney’s
rationale coupled with a defendant’s speculation that a different outcome was possible
will not displace the heavy presumption that counsel made reasonable tactical decisions
in carrying out his or her representation. Id. at 471. Vidrio has provided nothing more
than that and therefore has not shown his counsel’s actions would warrant relief under
§ 2255.
CONCLUSION
Based on the foregoing, we deny Vidrio’s motion to vacate, set aside, or correct

his sentence.

Che f Keres

Charles P. Kocoras Chief Judge
United States District Court

Dated: July 16, 2002


Minute Order Form (06/97)

WO United States District Court, Northern District of Hlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 02 C 3300 DATE 7/16/2002
CASE United States of America vs. Jose De Jesus Vidrio (00 CR 384)
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) aq Brief in support of motion due
@) aq Answer brief to motion due. . Reply to answer brief due.
(4) a Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) QO Trial[set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4¢m) OGeneral Rule21 CFRCP41(a\(1) CFRCP41(a)(2).
ao) «of [Other docket entry) ENTER MEMORANDUM OPINION: We deny Vidrio’s motion to vacate,
set aside, or correct his sentence.
di) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required.

number of notices

Notices mailed by judge’s staff.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )
)
Respondent, )

) 02 C 3300
vs. )

) 00 CR 384
JOSE DE JESUS VIDRIO, )
)
Petitioner. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief Judge:

This matter comes before the court on Petitioner José de Jesus Vidrio’s motion
to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the
reasons set forth below, the motion is denied.

BACKGROUND

In September 2000, Vidrio stood trial for conspiracy to possess with intent to
distribute marijuana and attempting to possess with intent to distribute marijuana. The
indictment charged Vidrio with involvement in three shipments of marijuana from
California to Chicago. Vidrio was arrested with two of his conspirators, Gerardo
Resendez and Nicolas Moreno, in the course of completing the third shipment, which

Vidrio stipulated at trial consisted of 561 kg of the drug. Although Vidrio never made


any concessions as to the size of the other two shipments, Resendez estimated that they
were approximately as large as the third.

During the jury instruction conference, Vidrio’s counsel argued that the quantity
of marijuana involved was not an issue that should be put before the jury. Instead, he
left the determination of the amount of drugs involved to the court at the time of
sentencing. The presentence report prepared for Vidrio included the first two shipments
as relevant conduct for consideration in setting the proper guideline range; the total
amount of marijuana thus fell between 1000 and 3000 kilograms. Vidrio challenged
this calculation as violative of the Supreme Court’s ruling in Apprendi v. New Jersey,
120 S.Ct. 2348 (2000), contending that the court could not take into account any
amount of drugs that was not the subject of either a stipulation or a jury finding.
Concluding that defense counsel’s statements during the jury instruction conference
waived any Apprendi-based argument founded on the amount of drugs, this court
rejected Vidrio’s argument, adopted the guideline calculation given in the presentence
report, and sentenced Vidrio to 121 months, the low end of the guideline range.

Vidrio appealed his sentence, arguing again that it was in violation of Apprendi.
United States v. Vidrio, 26 Fed. Appx. 565, 2001 WL 1646777 (7th Cir. 2001). The
appellate court disagreed and affirmed the sentence, holding that Vidrio had waived any

Apprendi objection and, in any event, because the sentence Vidrio received was well

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