United States District Court, W.D. North Carolina, Charlotte Division
COGBURN JR. UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1).
Erick Yahir Rodriguez-Salomon pleaded guilty, pursuant to a
written plea agreement, to conspiracy to distribute and
possess with intent to distribute 500 grams or more of a
mixture or substance containing methamphetamine, 21 U.S.C.
§§ 841(b)(1)(A), 846. (Crim. Case No. 3:16cr100,
Doc. No. 14 at 1: Indictment; Doc. No. 63 at 4: Presentence
Report (“PSR”)). Petitioner agreed, among other
things, that the “amount of methamphetamine that was
known to or reasonably foreseeable by the Defendant was at
least five hundred (500) grams.” (Id., Doc.
No. 34 at 2: Plea Agreement). In exchange for this guilty
plea, the Government agreed to move to dismiss three
additional counts with which Petitioner had been charged, one
of which carried a statutory mandatory minimum prison term of
five years, consecutive to any other punishment, 18 U.S.C.
§ 924(c)(1)(A)(i). (Id., Doc. No. 14 at 2; Doc.
No. 34 at 1). As part of his plea agreement, Petitioner
waived his right to appeal his sentence on grounds other than
ineffective assistance of counsel or prosecutorial
misconduct. (Id., Doc. No. 34 at 5).
Judge Cayer accepted Petitioner's guilty plea after
conducting the colloquy called for by Federal Rule of
Criminal Procedure 11(b). (Id., Doc. No. 90: Tr. of
June 2, 2016, Plea and Rule 11 Hearing). Petitioner was
represented by counsel and placed under oath. (Id.
at 2). He told the Court that he fully understood the charges
against him and, after consulting with his attorney, he
wanted the Court to accept his guilty plea. (Id. at
2-4). Petitioner told the Court that he understood he had a
right “to plead not guilty, to have a speedy trial
before a judge and jury, to summon witnesses to testify in
[his] behalf, . . . to confront the witnesses against [him],
” and to have the assistance of counsel at his trial.
(Id. at 6). He told the Court that he understood
that, by pleading guilty, he was “waiving or giving up
those rights” and there would “be no
trial.” (Id.). He also told the Court that he
was “in fact guilty” of the count to which he was
pleading guilty. (Id.).
affirmed, among other things, that he understood that the
right to appeal his sentence was expressly waived in his plea
agreement. (Id. at 11). He told the Court that
nobody had “threatened, intimidated, or forced”
him to “enter a guilty plea today.” (Id.
at 11-12). He told the Court he was “satisfied with the
services of [his] attorney.” (Id. at 12). He
also told the Court that he “heard and understood all
parts of [the] proceeding” and still “wish[ed] to
plead guilty.” (Id.). Based on the statements
of Petitioner and his attorney during the plea colloquy,
Judge Cayer found Petitioner's plea of guilty to have
been “knowingly and voluntarily made” and
accepted it. (Id. at 13).
sentencing Petitioner, this Court reviewed the plea colloquy
proceeding. (Id., Doc. No. 91 at 2-4: Oct. 11, 2016
Sentencing Tr.). The Court addressed Petitioner directly, and
Petitioner told this Court that he “absolutely”
told the truth during his plea colloquy. (Id. at 3).
He further told this Court that if it asked him the plea
colloquy questions the day of his sentencing, his answers
would be the same. (Id.). Without objection, this
Court affirmed Judge Cayer's finding “that the
defendant's plea was knowingly and voluntarily
made” and his acceptance of Petitioner's guilty
plea. (Id. at 4).
Court sentenced Petitioner to 210 months' imprisonment,
at the low end of the 210-262 sentencing guidelines range and
below the statutory maximum of life imprisonment, 21 U.S.C.
§§ 841(b)(1)(A), 846. (Id. at 49, 51,
57-58). Among other things, this Court found that Petitioner
had earned a three-offense level reduction under the
guidelines for acceptance of responsibility. (Id. at
Fourth Circuit dismissed Petitioner's appeal after
finding the waiver in his plea agreement valid and
enforceable. United States v. Rodriguez-Salomon, No.
17-4033 (4th Cir. June 5, 2017). The United States Supreme
Court denied Petitioner's petition for a writ of
certiorari on October 2, 2017. Rodriguez-Salomon v.
United States, 138 S.Ct. 155 (Oct. 2, 2017). Petitioner
filed his timely Section 2255 motion on April 2, 2018. (Doc.
No. 1). The Government filed its Response on June 6, 2018,
and Petitioner filed a Reply on July 26, 2018. (Doc. Nos. 6,
has alleged three categories of claims. First, although he
pleaded guilty, he has alleged as grounds “I, ”
“II, ” and “III” that his attorney
was constitutionally deficient for failing to require the
Government to bear burdens of the kind that it would at
trial. (Doc. No. 1 at 14-18). Second, Petitioner alleges that
his attorney's performance was deficient at sentencing
because his attorney did not attack the methamphetamine
sentencing guidelines as flawed. (Id. at 18-19).
Finally, he alleges that this Court erred when it assigned
him two criminal-history points for his prior escape
conviction because this Court should have properly applied
the “modified categorical approach.”
(Id. at 20).
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the arguments presented by Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
prevail on a theory of ineffective assistance of counsel,
Petitioner must establish that his attorney's performance
fell below an objective standard of reasonableness, judged
“from counsel's perspective at the time.”
Strickland v. Washington, 466 U.S. 668, 689 (1984).
He must also establish prejudice in the form of “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. Because
Petitioner pleaded guilty, to establish prejudice affecting
his conviction, he must demonstrate a “reasonable