IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

UNITED	STATES	OF	AMERICA,

v.	

VICTOR	HUGO	SERMENO,

																Petitioner/Defendant

)

)

)

)

)

)

)

CRIMINAL	NO.

11-00152-CB

CIVIL	NO.

14-00391-CB

ORDER

This	matter	is	before	the	Court	on	a	motion	to	vacate,	set	aside,	or	correct	

sentence	filed	pursuant	to	28	U.S.C.	§	2255	by	petitioner	Victor	Hugo	Sermeno,	a	

person	in	federal	custody,	along	with	supporting	brief. (Docs.	488	&	490.)		The	

government	has	filed	a	response	in	opposition	(Doc.	496),	and	Petitioner	has	filed	a	

reply	(Doc.	506).		For	reasons	set	forth	below,	the	Court	finds	the	motion	is	due	to	

be	denied	without	an	evidentiary	hearing.1

Factual	&	Procedural	Background

In	May	2011,	Petitioner	Victor	Hugo	Sermeno	was	charged,	along	with	nine	

other	defendants, in	a	one-count	indictment with	conspiracy	to	possess	with	intent	

to	distribute	more	than	5	kilograms	of	cocaine.		Attorney	Robert	Ratliff	was	

appointed	to	represent	Petitioner,	but	he	was	subsequently	replaced	by	retained	

counsel,	Richard	Williams.		A	jury	was	selected	on	August	1,	2011	for	the	trial	of	

Petitioner	and	codefendant	David	Trotter	scheduled	to	begin	August	9,	2011. On	the	

																																																							 1 “[A]	district court	is	not	required	to	hold	an	evidentiary	hearing	where	the	

petitioner's	allegations	are	affirmatively	contradicted	by	the	record,	or	the	claims	

are	patently	frivolous.”		Aron	v.	United	States,	291	F.3d	708,	715	(11th	Cir.	2002).

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morning	of	trial,	both	defendants	entered	guilty	pleas	before	Judge	DuBose,	who	had	

been	scheduled	to	conduct	the	trial.2		

Prior	his	plea,	Sermeno	entered	into a	written	plea	agreement	with	the	

government.		(Doc.	139.)		The	plea	agreement	explained	the	constitutional	rights	

waived	by	the	guilty	plea	(e.g.,	a	trial	by	jury,	to	confront	and	cross	examine	

witnesses,	not	to	testify,	etc.)	as	well	as	the	minimum	and	maximum	penalties	that	

could	be	imposed.		By	signing	the	plea	agreement,	Petitioner	represented	that	the	

plea was	“freely	and	voluntarily	made	and	[wa]s not	the	result	of	force,	threats,	

promises,	or	representations,	apart	from	those	representations	set	forth	in	th[e]	

Plea	Agreement.”		(Plea	Agrmt.	¶	9.)		Furthermore,	The	plea	agreement	contained	a	

limited	appeal	waiver	whereby	Petitioner	“knowingly	and	voluntarily	waive[d]	the	

right	to	file	any	direct	appeal	or	any	collateral	attack,	including	a	motion	to	vacate,	

set	aside	,	or	correct	sentence	under	28	U.S.C.	§	2255”	with	the	following	exceptions:	

“any	sentence	in	excess	of	the statutory	maximum”	and “any	sentence	which	

constitutes	an	upward	departure	or	variance	from	the	advisory	guideline	range.”	(Id.

¶	21.)		

The	plea	agreement	also	incorporated	by	reference	a	separate	document	

entitled	Factual	Resume,	which	set	out	the	conduct	underlying	the	offense.		The	final	

paragraph	of	that document,	also	signed	by	the	Defendant,	states	as	follows:		“The	

parties	agree	that	more	than	5	kilograms	of	cocaine	was	involved	in	the	conspiracy,	

but	the	parties	do	not	agree	on	the	amount	of	cocaine	for	which	the	defendant is	

accountable as	relevant	conduct.		If	the	parties	do	not	agree	by	the	time	of	the	

																																																							 2 Pursuant	to	district policy,	the	case	was	referred	back	to	the	assigned	judge	

for	sentencing.		

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sentencing	hearing,	the	parties	have	agreed	to	allow	the	district	court	to	make	that	

determination	at	the	sentencing	hearing.”		(Factual	Resume	17,	Doc.	139.)		

Immediately	prior	to	the	guilty	plea,	a	lengthy	discussion	took	place	at	side	

bar	as	to	how	the	drug	quantity	ultimately	would	be	determined,	whether	Sermeno	

pled	guilty	or	went	to	trial.				

THE	COURT:		All	right.		Mr.	Sermeno,	before	the	jury	gets	here,	

have	you talked	with	your	attorney	about	the	possibility	of	entering	a	

plea?		You	don’t	have	to	tell	me	anything	but	yes	or	no.

A: I	would	like	to	plead	but	I	don’t	want	to	plead	for	

hundred	and	fifty	keys.

MS	BEDWELL:		I	have	offered	Mr.	Knizley	[codefendant’s	

attorney],	and	I	thought	I	had	told	you	that,	the	opportunity	to	let	the	

judge	decide	at	sentencing	what	the	drug	amount	was.		The	only	

agreement	that	we’ll	require	is	that	the	conspiracy	involved	more	

than	five	kilos.		But	otherwise	.	.	.	.

THE	DEFENDANT:		I	can	plead	to	five	kilos

MR.	WILLIAMS:		Not	saying	five	keys.

[THE	COURT3]:		No,	not	saying	5	kilos.		That	is	what	they	are	

saying	you	would	plead	to	but	the	Judge	would	have	the	discretion	to	

determine	how	much	drugs	were	involved.		So	what	would	happen	at	

the	sentencing	hearing	Ms.	Bedwell	would	put	on	some	evidence	

establishing	what	she	thinks.		And	then	your	attorney	would	be	able	

to	question	all	of	that.		And	instead	of	a	jury	deciding,	a	judge	would	

decide	how	much	is	involved.

What	would	happen	if	you	go	to	trial	is,	if	the	jury	finds	you	

guilty	today,	they	are	only	going	to	be	finding	you	guilty	as	to	the	five	

kilos	anyway.		And	then	a	judge	is	ultimately	going	to	decide	the	other	

amount	anyway.		Is	that	right?

MS.	BEDWELL:		That’s	right

THE	COURT:		Okay.		So	what	they	have	charged	you	with	is	

more	than	five	kilos.		If	the	jury	comes	back	they	may	find	less	or	may	

find	five	kilos.		Anything	above	that	a	Judge	would	have	to	decide	that	

anyway.		But	it’s	up	to	you,	you	certainly	have	a	right to	have	the	

whole	case	heard	to	a	jury.

MR.	WILLIAMS:		I	think	you	ought	to	plead.

THE	DEFENDANT:		I	want	to	plead	but	–

THE	COURT:		I	can’t	help.		We	don’t	know	what	the	evidence	is	

going	to	be.		

																																																							 3 The	transcript	attributes	this	passage	to	Ms.	Bedwell,	but	it	is	clear	from	the	

context	that	Judge	DuBose	is	the	speaker.

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MR.	WILLIAMS:		It	would	be	my	job	to	–

THE	DEFENDANT:		Right

THE	COURT:		You	would	have	a	mini	trial	in	front	of	a	judge,	no	

jury	to	decide	how	much	drugs	are	involved.		It’s	going	to	be over	five	

kilos,	you	understand	that?

THE	DEFENDANT:		Yes,	ma’am.

THE	COURT:		Is	that	what	you	want	to	do?

THE	DEFENDANT:		Yes,	Your	Honor.

THE	COURT:		You	don’t	have	to,	you	understand	that?

MR.	WILLIAMS:		I	think	you	should	plead.		I	think	we	are	ready	

let’s	do	it.

THE	DEFENDANT:		Thank	you	Your	Honor.		Thank	you.

(Guilty	Plea	Tr.	2-4,	Doc.	350.)		

Following	this	discussion,	Judge	DuBose	conducted	a	plea	colloquy	in	open	

court.		Sermeno	indicated	that	he	had	had	sufficient	time	to	discuss	the	decision	

with	his	attorney	and	that	counsel	had	discussed	the	plea	agreement	with	him.		The	

judge	explained	the	effect	of	the	plea	agreement,	including	the	appeal	waiver.		(Id. 7-

8.)		She	specifically	pointed	out	that	“the	plea	agreement	provides	that	you	agree	the	

government	could	prove	up	to	five	kilos”	and	that	“there	is	this	thing	call[ed]	

relevant	conduct,	where	a	judge	w[i]ll	determine	the	amount	past	the	five	kilos.”		

(Id.	 8.)		The	judge	also	explained	the	constitutional	rights	Sermeno	would	be	giving	

up	by	entering	a	guilty	plea,	as	well	as	the	minimum	and	maximum	punishments.		

(Id.	 9-12.)	

In	addition,	Ms.	Bedwell,	the	government’s	attorney, brought	up	the	

possibility	of	deportation.		In	response,	Sermeno	stated:	“They	can	deport	me,	yeah,	

that’s	fine.”		(Id. 9.)		His	attorney	then	interjected	that	Sermeno	was	an	American	

citizen,	and	Sermeno	responded:		“I	got	Puerto Rico	papers	too,	so	that’s	fine.”		(Id.

9-10.)		Ms.	Bedwell	explained	that	“there	are	some	questions	as	to	the	Defendant’s	

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citizenship.		The	defendant	claims	to	be	a	U.S.	citizen	and	if	that’s	the	case there	is	no	

deportation	obviously.”		(Id.)

Sermeno’s citizenship,	as	well	as	his	identity,	became	an	issue	in	the	

Presentence	Investigation	Report	(PSR).		The	government	filed an	objection	to	the	

initial	PSR’s	findings	regarding	acceptance	of	responsibility	and	obstruction	of	

justice.	The	government	asserted	that	Sermeno	had	given	a	false	identity	and	lied	

about	his	citizenship.		 After	further	investigation,	the	PSR	was	revised.		It	concluded	

that	 “the	defendant	provided	materially	false	information	to	the	probation	officer	

regarding	his	identity	[including]	false	information	regarding	his	family’s	identity	

and	background,	as	well	as	his	country	of	birth.”		(PSR	¶	59,	Doc.	267.)		The	

Probation	Officer	reinterviewed	Sermeno,	in	the	presence	of	defense	counsel,	and	

“[a]fter	much	questioning	the	defendant	admitted	that	he	provided	false	

information,	and	he	proceeded	to	provide	accurate	information.”		(Id.)			Sermeno	

was	born	Carlos	Arturo	Madrid	Cordoba	in	Buenaventura,	Colombia.		As	a	result,	the	

PSR	assigned	a	2-level	increase	for	obstruction	of	justice	and	gave	no	decrease	for	

acceptance	of	responsibility.		

The	PSR	concluded	that	Sermeno	was	accountable	for	15	to	50	kilograms	of	

cocaine,	resulting	in	a	base	offense	level	of	34.		(Id. ¶	63.)		In	addition	to	the	2-level	

increase	for	obstruction	of	justice,	the	PSR	included	a	2-level	increase	for	possession	

of	a	firearm by	a	codefendant	in	the	conspiracy	which	was	reasonably	foreseeable	to	

Sermeno.		(Id. ¶	64.)		With	a	total	offense	level	of	38	and	a	criminal	history	category	

III,	the	guideline	range	calculated by	the	PSR	was	292	to	365	months.

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On	the	day	of	the	initial	sentencing	hearing,	the	defense	objected	to:		(1)	the	

obstruction	of	justice	increase	coupled	with	the	lack	of	a	decrease	for	acceptance	of	

responsibility	and	(2) the	firearms	enhancement.		In	addition,	the	Court	took	note	of	

a	letter	received	from	Sermeno	in	which	he	contended	that	he	pled	guilty	to	five	

kilograms,	as	opposed	to	the	15	to	50	kilograms	for	which	he	was	held	accountable	

in	the	PSR.		The	Court	denied	the	first	objection,	finding	that	providing	a	false	name	

and	false	citizenship	amounted	to	obstruction	of	justice.	Thus,	the	Court	imposed	a	

2-level	increase	and	denied	any	decrease	for	acceptance	of	responsibility.		The	Court	

questioned	counsel	with	regard	to	Sermeno’s	letter	and	determined	that	the	defense	

had	no	evidence	to	dispute	the	drug	quantity	and	that	Sermeno’s	position,	i.e.,	that	

he	should	be	held	responsible	only	for	five	kilograms,	was	unsupported.			The	

government	requested	a	continuance	of	the	proceedings	so	that	it	could present	

evidence	regarding	the	firearms	enhancement.		One	week	later,	on	April	30,	2012,	

the	Court	resumed	the	sentencing	hearing.		At	that	time,	the	government	presented	

testimony	from	codefendant	David	Trotter	that	Trotter,	Sermeno	and	a	third	

conspirator	carried	firearms	at	various	times	during	the	conspiracy	to	protect	

Sermeno’s	drug	business.		Based	on	the	testimony,	the	Court	found	a	sufficient	basis	

to	support	the	firearms	enhancement	and	overruled	the	objection.		

After	taking	into	consideration	all	the	§	3553(a),	the	Court	imposed	a	

sentence	of	260	months.		Sermeno	appealed.		Mr.	Williams	was	allowed	to	

withdraw,	and	the	Federal	Public	Defender	was	appointed	to represent	Sermeno	on	

appeal.		Appellate	counsel	filed	an	Anders brief	and	a	motion	to	withdraw.		On	May	

15,	2013,	the	Eleventh	Circuit	entered	judgment	finding	no	issues	of	arguable	merit	

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in	the	record	and	also	granted	the	motion	to	withdraw.		Mandate	was	issued	on	June	

14,	2013.

Issues	Raised

Petitioner	raises	three	grounds	for	relief	in	his	motion:	

1.		The	plea	was	not	knowing	and	voluntary	due	to	ineffective	

assistance	of	counsel.

2.			Due	to	ineffective	assistance	of	trial	and	appellate	counsel,	

an	acceptance-of-responsibility	decrease	in	the	guideline	offense	level	

was	denied	at	sentencing	and	was	not	challenged	on	appeal.

3.		Due	to	ineffective	assistance	of	trial	and	appellate	counsel,	

an	increase	in	the	guideline	offense	level	based	on	the	possession	of	a	

firearm	was	applied	at	sentencing	and	was	not	challenged	on	appeal.

In response,	the	government	argues	that	all	of	these	claims	“are	meritless	on	their	

face.”		(Gov’t	Br.	4,	Doc.	496.)

Legal	Analysis

Standard	of	Review

Petitioner	is	entitled	to	relief	only	if	the	Court	finds	that	“the	sentence	was	

imposed	in	violation	of	the	Constitution	or	laws	of	the	United	States,	or	that	the	

court	was	without	jurisdiction	to	impose	such	sentence,	or	that	the	sentence	was	in	

excess	of	the	maximum	authorized	by	law,	or	is	otherwise	subject	to	collateral	

attack.”		28	U.S.C.	§	2255.		Habeas relief	is	an	extraordinary	remedy	which	“may	not	

do	service	for	a	[	]	[direct]	appeal.”		United	States	v.	Frady,	456	U.S.	152,	165	(1982).		

A	defendant	who	has	waived	or	exhausted	his	right	to	appeal	is	presumed	to	stand	

“fairly	and	finally	convicted.”	Id.	at	164.		Unless	a	claim	alleges	a	lack	of	jurisdiction	

or	constitutional	error,	the	scope	of	collateral	attack	has	remained	extremely	

limited.		Addonizio	v.	United	States,	442	U.S.	178,	185	(1979).		Generally	speaking,	

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claims	not	raised	on	direct	appeal	are	procedurally	defaulted	unless	a	petitioner	can	

“show	cause	for	not	raising	the	claim	of	error	on	direct	appeal	and actual	prejudice	

from	the	alleged	error.”		Lynn	v.	United	States,	365	F.3d	1225,	1234	(11th Cir.	2004).			

However,	procedural	default	does	not	apply	to	ineffective	assistance	of	counsel	

claims,	which	need	not	be	raised	on	direct	appeal.		Massaro	v.	United	States 538	U.S.	

500,	508-09	(2003).	

The	Sixth	Amendment	guarantees	a	criminal	defendant	the	right	to	effective	

assistance of	counsel.		 Strickland	v.	Washington,	466	U.S.	668,	686	(1984).		“The	

benchmark	for	judging	any	claim	of	ineffectiveness	must	be	whether	counsel's	

conduct	so	undermined	the	proper	functioning	of	the	adversarial	process	that	the	

trial	cannot	be	relied	on	as	having	produced	a	just	result.”	Id.	 A	claim	for	relief	

based	on	ineffective	assistance	of	counsel	requires	proof	of	two	elements:

First,	the	defendant	must	show	that	counsel's	performance	was	

deficient.	This	requires	showing	that	counsel	made	errors	so	serious	

that counsel	was	not	functioning	as	the	“counsel”	guaranteed	the	

defendant	by	the	Sixth	Amendment.	Second,	the	defendant	must	show	

that	the	deficient	performance	prejudiced	the	defense.	This	requires	

showing	that	counsel's	errors	were	so	serious	as	to	deprive	the	

defendant	of	a	fair	trial,	a	trial	whose	result	is	reliable.

Id. at	687.

Knowing	and	Voluntary	Guilty	Plea

“The	circumstances	under	which	a	guilty	plea	may	be	attacked	on	collateral	

review”	are	“strictly	limited.”		Bousley	v.	United	States,	523	U.S.	614,	621	(1998).		An	

ineffective	assistance	of	counsel	claim	is	one	method	for	clearing	this	procedural	

hurdle.		Hill	v.	Lockhart,	474	U.S.	52,	58	(1985).		To	be	successful,	Petitioner	must	

establish:		“(1)	that	counsel’s	performance	was	deficient	and (2)	that	the	deficient	

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performance	prejudiced	the	outcome	of	the	case.“			Duhart	v.	United States,	556	

Fed.Appx.	897,	898	(11th Cir.	2014)	(per	curiam).		Petitioner’s	motion	fails	on	both	

prongs.		He	has	made	no	effort	to	explain	how	counsel	was	deficient, nor	can	he	

demonstrate	prejudice.

Petitioner	insists	that	his	plea	was	not	knowing	and	voluntary	because	he	

“only	wanted	to	plead	to	5	kilos.”		(Reply	Br.	2,	Doc.	506.)		He	does	not	allege	that	

counsel	advised	him	that	this	was	his	plea.		In	fact,	the	record	proves	otherwise.		

Counsel	explained,	with	assistance	from	the	Court,	on	the	record	prior	to	the	guilty	

plea	that the	final	drug	quantity	would	be	determined	by	the	judge	at	sentencing.	

(Plea	Tr.	2-4.)		The	Court	again	explained	this	during	the	plea colloquy.		(Plea	Tr.	8.)

Furthermore,	the	Plea	Agreement/Factual	Resume,	which	Petitioner	signed,	stated:		

“[T]he	parties	have	agreed	to	allow	the	district	court	to	make	[the	drug	quantity]	

determination	at	the	sentencing	hearing.”		(Factual	Resume	17,	Doc.	139.)		While	it	

may	be	true	that	the	Defendant	wanted to	plead	to	5	kilos,	he	was	clearly	informed	

several	times	that	he	could	be	held	accountable	for	more.		His	claim	of	ignorance	is	

nothing	short	of	willful	blindness.

Sentencing	Issues

Petitioner’s remaining	claims	arise	from	alleged	sentencing	errors.		These	

claims	lack	merit.	First,	Petitioner	was	denied	an	acceptance-of-responsibility	

reduction	(and	given	an	obstruction-of-justice	increase)	because	Petitioner	gave	a	

false	name	and	lied	about	his	citizenship.		That	action	was	appropriate	under	the	

Sentencing	Guidelines.		See U.S.S.G.	§§	3C1.1 (obstruction	of	justice)	and	3E1.1,	

Comm.	Note	4	(acceptance	of	responsibility).		Second,	Petitioner	received	a	2-level	

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firearms	enhancement	because	the	government	presented	sufficient	proof	that	

Petitioner	possessed	firearms	in	connection	with	the	offense.		That	increase	was	

also	appropriate	under	the	sentencing	guidelines.		See U.S.S.G.	§	2D1.1(b)(1).		

Petitioner	has	raised	each	of	these	claims	under	the	ineffective-assistance-ofcounsel	rubric,	but	he	fails	to	explain	what	counsel	did—or	failed	to	do—at	

sentencing	or	on	appeal	that	was	objectively	unreasonable.		Indeed,	counsel	raised	

both	of	these	objections	at	sentencing,	but	his	lack	of	success	does	not	equate	to	

constitutionally	ineffective	assistance.		Appellate	counsel’s	failure	to	raise	these	

issues	on	appeal	does	not	amount	to	constitutionally	ineffective	assistance	because	

“[a]ppellate	counsel	is	not	ineffective	for	failing	to	raise	claims	‘reasonably

considered	to	be	without	merit.’”	United	States	v.	Nyhuis,	211	F.3d	1340,	1344	(11th	

Cir.	2000).		These	issues	lacked	merit—a	fact	confirmed	by	the	Eleventh	Circuit’s	

judgment	on	appeal	finding	“no	arguable	issues	of	merit.”	 (Doc.	409.)

Conclusion

For	the	reasons	set	forth	above,	the	motion	to	vacate,	set	aside,	or	correct	

sentence	is	DENIED.

Certificate of Appealability Denied

Rule	11	of	the	Rules	Governing	Section	2255	Proceedings	requires	that	this	

Court	“issue	or	deny	a	certificate	of	appealability	when	it	enters	a	final	order	

adverse	to	the	applicant.”		“A	certificate	of	appealability	may	be	issued	only	where	

the	applicant	has	made	a	‘substantial	showing	of	the	denial	of	a	constitutional	

right.’”	Hardwick	v.	Singletary,	126	F.3d	1312,	1313	(11th	Cir.	1997).		This	standard	

is	“materially	identical”	to	the	standard	governing	certificates	of	probable	cause	

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under	the	former	28	U.S.C.	§	2253.		Id.;	accord	Slack	v.	McDaniel,	579	U.S.	473	(2000).		

In	the	context	of	certificates	of	probable	cause,	the	Supreme	Court	has	defined	the	

requirement	of	“a	substantial	showing	of	the	denial	of	a	federal	right”	to	mean	that	

the	applicant	must	raise	an	issue	that	is	debatable	among	jurists	of	reason.		Barefoot	

v.	Estelle,	463	U.S.	880,	893	n.	4	(1983).		None	of	the claims	raised	in	petitioner’s	§	

2255	motion	meet	this	threshold.		Accordingly,	the	certificate	of	appealability	is	

DENIED.

DONE and	ORDERED this	the	2nd day	of	March	2015.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

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