UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARIO GOMEZ-AGUIRRE,

No. 09-20362

Petitioner,

District Judge Lawrence P. Zatkoff

vs.

Magistrate Judge R. Steven Whalen

UNITED STATES OF AMERICA,

Respondent.

 /

REPORT AND RECOMMENDATION

Before the Court is Petitioner Marco Gomez-Aguirre’s Motion to Vacate Sentence

[Docket #16], filed pursuant to 28 U.S.C. §2255, which has been referred for a Report

and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For the reasons that follow, I

recommend that the Motion be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner pled guilty to the charge of unlawful reentry into the United States after

deportation following conviction of an aggravated felony, in violation of 18 U.S.C. §

1326. In the Rule 11 plea agreement, the parties agreed that the appropriate Sentencing

Guidelines range was 46 to 57 months. See Rule 11 Agreement [Doc. #12]. The Rule 11

agreement also contained a stipulated order of removal, in which Petitioner acknowledged

that he was a deportable alien within the meaning of the Immigration and Nationality Act,

and agreed “to the entry of a judicial order of removal from the United States, which will

be executed at the end of the term of imprisonment imposed pursuant to this plea

agreement.” Finally, Petitioner waived his right to appeal, providing that his sentence did

not exceed the agreed-upon Guidelines range.

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On January 22, 2010, Petitioner’s attorney filed a sentencing memorandum [Doc.

#14], in which he sought a downward departure from the Guidelines range based on

“[t]he fast track disparity that exists between the Eastern District of Michigan and other

Districts.” He also challenged the 16-level enhancement imposed when deportation

occurs after an aggravated felony. In the memorandum, Plaintiff’s counsel also argued for

a downward adjustment based on “the differential treatment of aliens serving a sentence

within the Bureau of Prisons,” requesting a departure to a 30 to 37 month range.

The Court rejected Petitioner’s request for a downward departure, but sentenced

him to a mid-range term of 51 months. See Judgment [Doc. #15].

In the present motion, Petitioner argues that he was denied the effective assistance

of counsel because (1) his lawyer did not seek a “fast-track” disparity reduction applied to

illegal reentry cases in other districts; (2) his lawyer did not seek a departure based on

cultural assimilation; and (3) his lawyer did not advise him regarding deportation.

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate, set

aside, or correct his sentence on the ground that the sentence was imposed in violation of

the United States Constitution. “[A] defendant must show a fundamental defect in the

proceedings which necessarily results in a complete miscarriage of justice or an egregious

error violative of due process." Fair v. U.S. 157 F.3d 427, 430 6 Cir. 1998) (internal th

quotation omitted); Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994). To prevail

under § 2255, a petitioner must demonstrate the existence of an error of constitutional

magnitude which had a substantial and injurious effect or influence on the guilty plea or

the jury's verdict. Griffin v. United States, 330 F.3d 733, 736 (6th Cir.2003).

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III. DISCUSSION

The Sixth Amendment guarantees the accused in a criminal prosecution the right

to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Strickland sets forth a two-part test for assessing claims of

ineffective assistance. First, did the attorney make errors "so serious that counsel was not

functioning as the counsel guaranteed by the Sixth Amendment," 466 U.S. at 687. To

establish deficient performance under this prong of Strickland, the defendant must show

that his attorney’s representation “fell below an objective standard of reasonableness.” 

Id., at 688. The second prong of Strickland examines whether the defendant was

prejudiced by counsel’s deficient performance. To meet the prejudice standard, a

"defendant 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.

Where ineffective assistance is alleged in the context of a guilty plea, it must be

shown that counsel’s performance was deficient and that the deficient performance

caused the defendant to reach a different decision regarding the plea. Hill v. Lockhart,

474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). To satisfy the “prejudice” prong

of Strickland, the defendant must show that, but for counsel’s errors, he or she would not

have pled guilty, but would have insisted on going to trial. Hill, 474 U.S. at 58-59;

Warner v. United States, 975 F.2d 1207, 1214 (6 Cir. 1992)(prejudice shown if th

defendant shows a reasonable probability that but for counsel’s defective advice, he

would not have pled guilty).

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A. Alleged Failure to Seek Fast-Track Reduction

Certain districts that have an extremely high number of reentry cases utilize socalled “fast-track” programs, whereby a defendant may receive a downward departure

under certain conditions. In districts such as the Eastern District of Michigan, sentencing

judges may consider disparities created by this district’s absence of a fast-track policy.

United States v. Camacho - Arellano, 614 F.3d 244, 248–50 (6th Cir.2010); see also

Kimbrough v. United States, 552 U.S. 85 (2007). 

Petitioner is no doubt disappointed that the Court did not grant a departure. 

However, contrary to Plaintiff’s argument in this motion, his lawyer clearly argued for a

departure based on fast-track disparity. “That a court may consider such disparities,

however, in no way entitles [a defendant] to a lower sentence.”United States v. CabreraJimenez, 2013 WL 5613708, *2 (6 Cir. 2013), citing United States v. Mason, 410 F. th

App'x 881, 886 (6th Cir.2010)(emphasis in original). Petitioner has not shown the

deficient performance necessary for an ineffective assistance claim.

B. Cultural Assimilation

Petitioner claims that his lawyer was ineffective for failing to seek a downward

departure based on cultural assimilation under Application Note 8 to U.S.S.G. § 2L1.2,

which provides as follows:

“There may be cases in which a downward departure may be appropriate on

the basis of cultural assimilation. Such a departure should be considered

only in cases where (A) the defendant formed cultural ties primarily with

the United States from having resided continuously in the United States

from childhood, (B) those cultural ties provided the primary motivation for

the defendant's illegal reentry or continued presence in the *718 United

States, and (C) such a departure is not likely to increase the risk to the

public from further crimes of the defendant.”

There are at least two reasons why Petitioner’s counsel cannot be faulted for

failing to seek a downward departure under this provision. First, at the time of

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sentencing, there was no basis for counsel to make this argument. The effective date of

the Guidelines Amendment adding Application Note 8 was November 1, 2010. Petitioner

was sentenced approximately nine months earlier, on February 4, 2010. 

Secondly, Petitioner does not qualify for a departure because he had not “resided

continuously in the United States from childhood,” as required by Application Note 8. As

the government points out, Petitioner was born in Colombia in 1956, and first came to the

United States in 1982, at the age of 25 or 26.

Petitioner’s claim of ineffective assistance of counsel on this basis is without

merit.

C. Advice as to Immigration Consequences of Plea

Relying on Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Petitioner contends that his

attorney failed to advise him that he would be deported if he pled guilty. Aside from the

fact that Petitioner was sentenced about two months before Padilla was decided, the

record belies his claim as a factual matter. Paragraph 4 of the Rule 11 agreement clearly

provided for “the entry of a judicial order of removal from the United States, which will

be executed at the end of the term of imprisonment imposed pursuant to this plea

agreement.”1

IV. CONCLUSION

For these reasons, I recommend that Petitioner’s Motion to Vacate Sentence

[Docket #16] be DENIED.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D.

 To the extent that Petitioner is actually challenging his prior attorney’s 1

representation in a 1992 plea-based conviction, the issue is not properly before the Court

in the present case.

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Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Howard v. Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 th

F.2d 947 (6 Cir. 1981). Filing of objections which raise some issues but fail to raise th

others with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. th

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. th

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed

objections, the opposing party may file a response. The response shall be not more than

twenty (20) pages in length unless by motion and order such page limit is extended by the

court. The response shall address specifically, and in the same order raised, each issue

contained within the objections. 

s/ R. Steven Whalen

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: November 13, 2013

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record

on November 13, 2013, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla for Michael Williams

Case Manager to the

Honorable R. Steven Whalen

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