usa v guerrero

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 1 of 46

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA )

)

v. ) 2:10 CR 00109

)

ALEX GUERRERO )

DEFENDANTS SENTENCING MEMORANDUM

Now comes the defendant, Alex Guerrero, by his attorney, Kevin Milner, and

hereby submits the following sentencing memorandum.

Summary of the Case

The Latin Kings are a street gang. They sell illegal drugs and, when

necessary, use violence in connection with their business. Antonio Martinez was a

Chicago, Illinois police officer. He had long standing ties to the gang. Periodically,

members of the gang instructed Martinez to perform various illegal activities,

including robbing and seizing drugs from rival dealers. The drugs would then be

turned over to the gang in exchange for payment. Alex Guerrero was Martinezs

partner. Eventually, Martinez involved Guerrero in the same activities although,

even by the governments own admission, Guerrero was always the follower.

Guerrero had no independent connection to the gang and never performed any

illegal activities on his own.

Sentencing Guidelines

There is no dispute regarding the applicable guideline range. Mr. Guerreros

total offense level is 43. He has no criminal record and falls into category 1. The

mandated punishment is life imprisonment.

USDC IN/ND case 2:10-cr-00109-RL-APR document 734 filed 01/10/13 page 1 of 5

18 U.S.C. 3553(a) Factors

The range suggested by the sentencing guidelines is advisory only, and it is

error for a district court to give that range any presumption of reasonableness.

United States v. Rita, 551 U.S. 338, 127 S.Ct. 2456, 2465 (2007) (citing United States v.

Booker, 543 U.S. 220, 259-60 (2004)); United States v. Demaree, 459 F.3d 791, 795 (7th

Cir. 2006). Instead, the district court must consider the advisory range along

with the other factors set out in 18 U.S.C. 3553(a), and determine based on all of

those factors together the sentence that is sufficient, but not greater than necessary,

to serve the statutory purposes.

18 U.S.C. 3553(a) provides: Factors to be considered in imposing a sentence:

The court shall impose a sentence sufficient, but not greater than necessary, to

comply with the purposes set forth in paragraph (2) of this subsection. The court, in

determining the particular sentence to be imposed, shall consider--

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant: As stated, the offense involved Mr.

Guerreros activities performed on behalf of the Latin Kings. Guerrero

performed the acts while working in his role as a police officer. He

participated in the illegal seizure of drugs and money from various drug

dealers. The proceeds were then turned over to the gang in exchange for

compensation. This conduct is completely in contrast to Mr. Guerreros

personal characteristics. He is a loving family man. He has 5 beautiful

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children, including 3 little ones, ages 12, 6 and 4, and a wonderful supportive

wife. He has always worked hard, often working more than one job to make

ends meet. He was an excellent police officer who received many award and

commendations. He is a loving son and brother to his parents and siblings.

Despite limited ability, he managed to educate himself and obtain a

bachelors degree. He has never been in trouble in his life. This will be his

first brush with the law. The many letters submitted to the Court, attest to

his character and penchant for good. Rather than go to trial and defend

himself, Mr. Guerrero chose to admit his guilt. He further chose to cooperate

with the government in their prosecution of his co-defendants as well as

others not yet charged with crimes. He did this because he felt it was the

right thing to do, despite placing himself in an extremely dangerous position,

considering he is an incarcerated police officer. He is hopeful that he will one

day see his family again. His children will be grown when he comes home.

Nonetheless, he is hopeful that he will one day be able to hold them again as a

free man.

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense:

(B) to afford adequate deterrence to criminal conduct:

(C) to protect the public from further crimes of the defendant:

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(D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most effective

manner:

(3) the kinds of sentences available:

Now that the guidelines are advisory, the Court has discretion to impose any

sentence which serves the purposes of sentencing and complies with the controlling

statutes. The Court is not bound by the previous dictates of the sentencing

guidelines on how a sentence may be structured, and in fact is now prohibited from

even presuming the guidelines sentence is reasonable.

Mr. Guerreros guideline range calls for life imprisonment. However, this

Court may sentence him to any period of years, starting with the statutory

minimum of 10. A fine may be imposed if the Court determines that Mr. Guerrero

has the ability to pay. The special assessment of $400 is mandatory. Lastly, a period

of Supervised Release must be ordered.

(4) the kinds of sentence and the sentencing range established for:

(A) the applicable category of offense committed by the applicable

category of defendant as set forth in the guidelines .

Mr. Guerreros total offense level is 43 with a criminal history category I.

Therefore, his guideline range for imprisonment is life and his fine range is

$25,000-$10,000,000. The range for supervised release is 2-5 years.

(5) any pertinent policy statement:

(A) issued by the Sentencing Commission .

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(6) the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct:

(7) the need to provide restitution to any victim of the offense:

Restitution is not an issue in this case.

Defendants Sentencing Recommendation

Mr. Guerrero joins in the governments request that he be sentenced to a 19

year period of incarceration. In this case, this is a just sentence.

Respectfully Submitted,

/s/ Kevin Milner

______________________________

Kevin Milner

Kevin Milner

1000 East 80th

Place

Suite 511 S

Merrillville, IN 46410

(219)406-0556

CERTIFICATE OF SERVICE

I, Kevin Milner, hereby certify that I serve a copy of the attached motion

upon all parties of record by electronically filing the same with the Clerk of the

Court for the Northern District of Indiana, Hammond Division, on January 10,

2013.

/s/ Kevin Milner

_______________________________

Kevin Milner

5


UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF INDIANA

UNITED STATES OF AMERICAPlaintiff

v. Case Number 2:10cr109-022

USM Number 11905-027ALEX GUERRERO

DefendantKEVIN E MILNER Defendants Attorney

___________________________________

JUDGMENT IN A CRIMINAL CASETHE DEFENDANT pleaded guilty to counts 1, 2, 14 and 15 of the Third Superseding Indictmenton 8/2/2012.

ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offenses:

Title, Section & Nature of OffenseDate Offense

EndedCount

Number

18:1962(d) - Conspiracy to Participate in Racketeering Activity November 2011 1

21:846 - Conspiracy to Possess with Intent to Distribute and Distribute5 Kilograms or More of Cocaine and 1000 Kilograms or More of aMixture and Substance Containing a Detectable Amount of Marijuana

November 2011 2

18:1951 and 18:2 - Interference with Commerce by Threats or Violence November 2011 14

18:924(c)(1)(A) and 18:2 - Use and Carrying of Firearm During and inRelation to Crimes of Violence and Drug Trafficking.

November 2011 15

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence isimposed pursuant to the Sentencing Reform Act of 1984.

IT IS ORDERED that the defendant must notify the United States Attorney for this district within 30days of any change of name, residence, or mailing address until all fines, restitution, costs andspecial assessments imposed by this judgment are fully paid. If ordered to pay restitution, thedefendant must notify the court and United States Attorney of any material change in economiccircumstances.

January 11, 2013Date of Imposition of Judgment

/s/ Rudy LozanoSignature of Judge

Rudy Lozano, United States District JudgeName and Title of Judge

January 15, 2013Date


Defendant: ALEX GUERRERO Page 2 of 7Case Number: 2:10cr109-022

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisonsto be imprisoned for a total term of 228 months.

This term of imprisonment consists of 168 months for each of Counts 1, 2 and 14, to beserved concurrently; and 60 months for Count 15, to be served consecutively to all other Counts.

The Court makes the following recommendations to the Bureau of Prisons:

That the defendant participate in an Intensified Alcohol Treatment Program or any similar drugtreatment program available.That the defendant be incarcerated in a federal facility as close to Chicago, Illinois as possible.That the defendant be given credit for time served.That the defendant be allowed to participate in any educational or occupational trainingprograms as available.

The defendant is remanded to the custody of the United States Marshal.

RETURN

I have executed this judgment as follows:

Defendant delivered to at , with a certified copy of this judgment.

UNITED STATES MARSHAL

By: DEPUTY UNITED STATES MARSHAL



SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of 5years.

This period of supervision consists of 3 years for each of Counts 1, 14 and 15, and 5years for Count 2, all to be served concurrently.

The defendant shall report in person to the probation office in the district to which the defendantis released within 72 hours of release from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state or local crime.

The defendant shall not unlawfully possess a controlled substance. The defendant shall refrainfrom any unlawful use of a controlled substance.

The defendant shall submit to one drug test within 15 days of release from imprisonment andtwo (2) periodic drug tests thereafter, as determined by the Court.

The defendant shall not possess a firearm, ammunition, destructive device, or any otherdangerous weapon.

The defendant shall cooperate in the collection of DNA as directed by the probation officer.

If this judgment imposes a fine or restitution, it is a condition of supervised release that thedefendant pay in accordance with the Schedule of Payments sheet of this judgment.



STANDARD CONDITIONS OF SUPERVISION

1. The defendant shall not leave the judicial district without the permission of the Court orprobation officer.

2. The defendant shall report to the probation officer in the manner and as frequently asdirected by the Court or probation officer.

3. The defendant shall answer truthfully all inquiries by the probation officer and follow theinstructions of the probation officer.

4. The defendant shall support his dependents and meet other family responsibilities.5. The defendant shall work regularly at a lawful occupation unless excused by the

probation officer for schooling, training, or other acceptable reasons.6. The defendant shall notify the probation officer within ten (10) days of any change in

residence or employment.7. The defendant shall refrain from excessive use of alcohol and shall not purchase,

possess, use, distribute, or administer any narcotic or other controlled substance, or anyparaphernalia related to such substances, except as prescribed by a physician.

8. The defendant shall not frequent places where controlled substances are illegally sold,used, distributed, or administered.

9. The defendant shall not associate with any persons engaged in criminal activity, andshall not associate with any person convicted of a felony unless granted permission todo so by the probation officer.

10. The defendant shall permit a probation officer to visit him or her at any time at home orelsewhere and shall permit confiscation of any contraband observed in plain view by theprobation officer.

11. The defendant shall notify the probation officer within seventy-two (72) hours of beingarrested or questioned by a law enforcement officer.

12. The defendant shall not enter into any agreement to act as an informer or a specialagent of a law enforcement agency without the permission of the Court.

13. As directed by the probation officer, the defendant shall notify third parties of risks thatmay be occasioned by the defendants criminal record or personal history orcharacteristics, and shall permit the probation officer to make such notifications and toconfirm the defendants compliance with such notification requirement.

14. The defendant shall pay the special assessment imposed or adhere to a court-orderedinstallment schedule for the payment of the special assessment.

15. The defendant shall notify the probation officer of any material change in the defendantseconomic circumstances that might affect the defendants ability to pay any unpaidamount of restitution, fines, or special assessments.



SPECIAL CONDITIONS OF SUPERVISION

If not employed at a regularly lawful occupation, the defendant shall perform at least 30 hours ofcommunity service each week and participate in a job skill training and counseling program,daily job search or other employment-related activities, at his own expense, all as approved anddirected by the probation officer, to begin within the first 90 days of placement on supervision.

The defendant shall submit his person, and any property, house, residence, vehicle, papers,computer, other electronic communication or data storage devices or media, and effects, tosearch at any time, with or without a warrant, by any law enforcement or probation officer withreasonable suspicion concerning a violation of a condition of supervision or unlawful conduct bythe defendant.

The defendant shall not incur new credit charges or open additional lines of credit without theapproval of the probation officer unless the defendant is in compliance with the installmentpayment schedule.

The defendant shall provide the probation officer with access to any requested financialinformation.

.



CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal monetary penalties in accordancewith the schedule of payments set forth in this judgment.

Total Assessment Total Fine Total Restitution

$400.00 NONE NONE

The defendant shall make the special assessment payment payable to Clerk, U.S.District Court, 5400 Federal Plaza, Suite 2300, Hammond, IN 46320. The special assessmentpayment shall be due immediately.

FINE

No fine imposed.

RESTITUTION

No restitution was ordered.



Name: ALEX GUERRERO

Docket No.: 2:10cr109-022

ACKNOWLEDGMENT OF SUPERVISION CONDITIONS

Upon a finding of a violation of probation or supervised release, I understand that theCourt may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify theconditions of supervision.

I have reviewed the Judgment and Commitment Order in my case and the supervisionconditions therein. These conditions have been read to me. I fully understand the conditionsand have been provided a copy of them.

(Signed)____________________________________ __________________ Defendant Date

____________________________________ __________________ U.S. Probation Officer/Designated Witness Date


1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION UNITED STATES OF AMERICA )

) v. ) 2:10 CR 109 RL

) 2:14 cv 11 RL ALEX GUERRERO ) GOVERNMENT=S RESPONSE TO DEFENDANTS MOTION UNDER 28 U.S.C. 2255

TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Comes now the United States of America, by David Capp, United States Attorney for the

Northern District of Indiana, through Assistant U.S. Attorney David J. Nozick, and responds to the

defendant Alex Guerreros Motion under 28 U.S.C. 2255 to Vacate, Set Aside or Correct

Sentence as follows:

I. FACTUAL BACKGROUND

On November 16, 2011, the defendant was indicted in the Northern District of Indiana in

the Third Superseding indictment in the case of United States v, Vargas et al. [R. 230]. The

defendant, who was still working as a Chicago Police Officer at the time of his indictment, was

charged in Count One with Conspiracy to participate in Racketeering Activity. Count Two

charged the defendant in a narcotics conspiracy. Count Fourteen charged the defendant with

Interference with Commerce by Threats or Violence. Count Fifteen charged the defendant with

carrying and using firearms during and in relation to federal crimes of violence and drug

trafficking. On November 30, 2011, the defendant entered a plea of not guilty at his arraignment.

[R. 303]. On July 26, 2012, the defendants written plea agreement was filed with the court. [R.


2

501]. The defendant pled guilty in open court on August 2, 2012. He was represented by

attorney Kevin Milner. [R. 516].

The defendant received a draft presentence report on December 6, 2012. [R. 648]. The

government informed the United States Probation office that it had no objection to the Presentence

Report (the PSR,) on December 9, 2012. [R. 684]. On December 26, 2012 the government

filed its Motion for Downward Departure. [R. 682]. On December 28, 2012, the defendant

indicated that he had no objections to the PSR. [R. 696]. The government and the defendant

received the final PSR on December 28, 2012. [R. 699]. On January 10, 2013, attorney Kevin

Milner filed his sentencing memorandum. [R. 734]. On January 11, 2013, the defendant was

sentenced by the Honorable Judge Lozano to a total term of incarceration of 228 months.

On January 10, 2014, the defendant filed a pro se Motion to Vacate under 28 U.S.C.

2255.

II. ARGUMENT

The defendant first argues in his pro se motion that he was denied effective assistance of

counsel because after reviewing the case his attorney told him that he had committed no crime, and

his only connection to the case was through his Chicago Police Department partner, Antonio

Martinez, who was linked to the Latin Kings. The defendant states that at no point did his partner

alert him to any illegal activities. After reviewing the case initially, Kevin Milner led the

defendant to believe that he would be cleared of the charges.

The defendants second ground appears to state the exact opposite of the first ground. The

defendant states that he pled guilty because his attorney told him that there was overwhelming

evidence against him, including the firearm which he carried in his duties as a police man, and


3

calls made to Mexico. The defendant states that these calls were made by his wife, and were to

her relatives.

The defendants fourth ground states that his constitutional rights were violated as the

media was biased against him because he was a Chicago Police Officer, his association with

Antonio Martinez made him look guilty, and the police union had him sign papers which turned

out to be dismissal papers. Furthermore, there were fellow officers who refused to come forward

to assist him in fear of losing their jobs.

The defendants first, second and fourth arguments fail, as they are directly contradicted by

the defendants plea agreement and plea hearing. The defendants signed written plea agreement

is the standard one used in this district, one that this honorable court has seen hundreds of times.

In his signed written plea agreement, and again under oath at the Rule 11 hearing, Guerrero

indicated that he had discussed his entire case with his attorney; that Ibelieve and feel that I

understand every accusation made against me in this case,@ [R. 501, & 2]; that AI have told my

lawyer the facts and surrounding circumstances as known to me concerning the matters mentioned

in the Third Superseding Indictment and believe and feel that my lawyer is fully informed as to all

such matters. My lawyer has counseled and advised with me as to the nature and elements of

every accusation against me and as to any possible defenses I might have. [R. 501, &3].

Guerrero also indicated in this signed plea agreement, in addition to so indicating under oath at the

plea hearing, that he was pleading guilty to conspiracy to participate in racketeering activity, in

violation of Title 18, United States Code, Section 1962(d), because he was in fact guilty as

charged. [R. 501, & 7(a)]. Similarly, he stated in his signed plea agreement and under oath at his

plea hearing that he was pleading guilty to the narcotics conspiracy charged in Count Two, in

violation of Title 18, United States Code, Section 846, because he was in fact guilty as charged.


4

[R. 501, & 7(c)]. He also stated in his plea agreement and at his plea hearing that he is pleading

guilty to the Hobbs Act Robbery count charged in count fourteen, in violation of Title 18, United

States Code Section 1951 because he was guilty as charged. [R. 501, & 7(e)]. He also stated in

his plea agreement and at his plea hearing that he is pleading guilty to using and carrying a gun in

furtherance of the drug trafficking and Hobbs act robbery, in violation of Title 18, United States

Code, Section 924(c)(1)(A) because he was guilty as charged. [R. 501, & 7(g)]. Finally, the

defendant stated in his plea agreement and again at his sentencing hearing that he believed and felt

that his attorney has done all that anyone could do to counsel and assist me, and that I now

understand the proceedings in this case against me. [R. 501, & 15].

It should also be noted that while the defendant appears to assert in his first Ground that at

no time did Antonio Martinez alert me to any illegal activities, this is controverted by the

defendants plea colloquy. During the course of the plea hearing, while laying the factual basis,

the defendant stated that my police partner and I committed robberies under the direction of Sisto

Bernal. [Plea Hearing Transcript, 46]. Guerrero admitted to being involved with Sisto Bernal,

a member of the Latin Kings, who was giving Guerrero and Martinez directions. [Plea Hearing

Transcript, 47]. Guerrero then elaborated that he and Martinez committed robberies in Northwest

Indiana at Bernals direction, stealing drugs, money and guns. Guerrero and Martinez would then

turn these items over to Bernal, and would get paid. [Plea Hearing Transcript, 50]. The

defendant further admitted to the court that he was responsible for more than 5 kilos of cocaine and

1,000 kilos of marijuana. [Plea Hearing Transcript, 52]. The defendant also admitted to doing a

robbery of James Walsh, in Hammond Indiana. During the course of this robbery the defendant

utilized his police uniform and was wearing his firearm. [Plea Hearing Transcript, 54]. The

defendant then turned over the firearms, and/or marijuana and/or cocaine and/or U.S. currency to


5

Sisto Bernal. [Plea Hearing Transcript, 55]. Regarding the 924(c) violation, the defendant

admitted that he had his firearm with him, and he used that firearm to help commit the offenses.

[Plea Hearing Transcript, 56].

The defendants first, second and fourth Grounds should be denied because they are plainly

and completely contradicted by the defendants own words, under oath, during the plea hearing.

In the guilty plea context, Athe record of a Rule 11 proceeding is entitled to a presumption of verity

and the answers contained therein are binding.@ United States v. Martinez, 169 F.3d 1049, 1054

(7th Cir. 1999); United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992) (explaining that

voluntary responses made by a defendant when entering a guilty plea are binding); Lawuary v.

United States, 199 F.Supp.2d 866, 876-77 (C.D. Ill. 2002) (holding same); United States v.

Mosley, 1994 WL 503016, at *2-*3 (7th Cir. Sept. 14, 1994) (ASelf-serving statements offered after

the plea hearing generally fall in the face of contradictory voluntary statements made by the

defendant during a plea hearingB B the latter are presumed true.@); United States v. Malave, 1994

WL 128658, at *3 (7th Cir. Apr. 14, 1994); United States v. Knorr, 942 F.2d 1217, 1220 (7th Cir.

1991) (A[R]ational conduct requires that voluntary responses made by a defendant when entering a

guilty plea be binding.@); United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987) (A[V]oluntary

responses made by a defendant under oath before an examining judge [are] binding@); see also

United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002); Barker v. United States, 7 F.3d 629, 634

n.5 (7th Cir. 1993) (both explaining that a reviewing court must be able to rely on the answers given

by a defendant at a change of plea hearing, and that the record made at such hearing carries a

Apresumption of verity@); United States v. Gwiadzinski, 141 F.3d 784, 788 (7th Cir. 1998) (AWe will

not force an attitude of skepticism on [Rule 11 hearings] which would eliminate the presumption

of truthfulness expected from responses given under oath.@). This ARule 11 questioning has


6

special importance to collateral proceedings,@ for Athe representations of the defendant at a plea

hearing as well as any findings made by the judge accepting the plea, constitute a formidable

barrier in any subsequent collateral proceeding.@ Key v. United States, 806 F.2d 133, 138 (7th Cir.

1987).

In United States v. Stewart, 198 F.3d 984 (7th Cir. 1999), the Seventh Circuit affirmed the

district court=s denial of the defendant=s request to withdraw his guilty plea, and in so doing,

emphasized the following regarding the presumption of verity accorded to a defendant=s

statements made under oath at his guilty plea hearing:

Because many defendants seem to be under the misapprehension that a guilty plea is just provisional, and an oath to tell the truth means nothing, let us be clear. A district judge may permit a defendant to withdraw the plea if the judge finds convincing the defendant=s reasons for lying under oath, but because the district judge possesses considerable discretion in this regard, United States v. Abdul, 75 F.3d 327, 329 (7th Cir. 1996), a defendant has no chance of success on appeal when the judge elects to treat freely given sworn statements as conclusive. Entry of a plea is not some empty ceremony, and statements made to a federal judge in open court are not trifles that defendants may elect to disregard. A defendant has no legal entitlement to benefit by contradicting himself under oath. Thus when the judge credits the defendant=s statements in open court, the game is over. See Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). There will be no further evidentiary hearing, and an appeal is pointless (indeed, frivolous).

Stewart, 198 F.3d at 987.

The defendants third ground is that the conviction was obtained by the governments

failure to disclose exculpatory material to the defendant. The defendant states that he was told by

his attorney that the prosecution delayed giving him exculpatory material. The defendant then

says Please refer to my PCR. Please see attachment. The attachment to the defendants

motion is a copy of his sentencing memorandum in this case.


7

This argument should be denied in that it is overly vague and states no prejudice suffered

by the defendant. There is nothing in the defendants attached sentencing memorandum that

refers to Brady materials that were either late or were never provided. There is nothing in the

defendants presentence report that pertains to Brady materials. At no point does the defendant

cite what exculpatory materials he believes existed. The undersigned Assistant U.S. Attorney

represents as an officer of the court that there were no Brady violations in this case, and the

government is not sure what the defendant is referring to here. This ground should be summarily

denied as insufficient.

III. CONCLUSION

WHEREFORE, for the reasons stated above, the motion should be denied without a

hearing on the matter.

Respectfully submitted,

DAVID CAPP UNITED STATES ATTORNEY

s/ David J. Nozick_________ David J. Nozick Assistant United States Attorney


8

Certificate of Service I hereby certify that on March 31, 2014 I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. I certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: Alex Guerrero No. 11905-027 FCI Allenwood Low P.O. Box 1000 White Deer, Pennsylvania 17887 /s/ Gloria Powell Gloria Powell Legal Assistant


IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, ))

Plaintiff, ))

vs. ) NO. 2:10-CR-109) (2:14-CV-11)

ALEX GUERRERO ))

Defendant. )

OPINION AND ORDERThis matter is before the Court on the Motion Under 28 U.S.C.

Section 2255 To Vacate, Set Aside, Or Correct Sentence By a Person

in Federal Custody, filed by Alex Guerrero on January 10, 201 (DE

#1108). For the reasons set forth below, the section 2255 motion

is DENIED. The Clerk is ORDERED to DISMISS this case WITHPREJUDICE. The Clerk is ORDERED to distribute a copy of this orderto Alex Guerrero, #11905-027, Allenwood FCI - 1000- Low, Federal

Correctional Institution, Inmate Mail/Parcels, P.O. Box 1000, White

Deer, PA 17887, or to such other more current address that may be

on file for the Petitioner. Further, this Court declines to issue

Defendant a certificate of appealability.

BACKGROUND

On November 16, 2011, a Third Superseding Indictment was filed


against Defendant, Alex Guerrero and twenty other defendants.1 (DE

#230). Guerrero was charged in Counts One, Two, Fourteen, and

Fifteen of the 15-count Third Superseding Indictment. Count One

charged Guerrero and others with conspiracy to participate in

racketeering activity in violation of 18 U.S.C. 1962. Count Two

charged Guerrero and others with conspiracy to possess with intent

to distribute and distribute cocaine and marijuana in violation of

21 U.S.C. 846. Count Fourteen charged Guerrero with interference

with commerce by threats or violence, in violation of 18 U.S.C.

1951. Count Fifteen charged Guerrero with using and carrying a

firearm during and in relation to crimes of violence and drug

trafficking, in violation of Title 18 U.S.C. 924(c)(1)(A).

On July 26, 2012, Guerrero entered into a plea agreement with

the Government, and the agreement was filed with this Court. (DE

#501). In it, Guerrero agreed to plead guilty to Count One, Two,

Fourteen, and Fifteen of the Third Superseding Indictment. (Id.,

7). The Government and Guerrero also reached certain agreements

that were not binding on the Court. (Id., 8). Specifically,

they agreed that if Defendant continued to accept responsibility

for his criminal conduct, he should receive a two point, and if

eligible, an additional one point reduction in his Guideline

offense level. (Id., 9(a)). They also agreed that the

1 The case had a total of 23 defendants, but two plead guilty prior tothe filing of the Third Superseding Indictment.

2


Government would recommend a sentence equal to the minimum of the

applicable guideline range. (Id., 8(b)). They further agreed

that Defendant is responsible for 150 kilograms or more of a

mixture and substance containing a detectable amount of cocaine;

that the victim of Count 14 was physically restrained, that

Defendant abused a position of public trust that significantly

facilitated the commission or concealment of the offense, and that

Defendant used body armor during the commission of the offense.

(Id., 8(c)-(f)). Lastly, they agreed that, considering the

totality of the circumstances, a just and appropriate sentence as

to a term of imprisonment is a period of 228 months. (Id., 9).

Further, Defendant agreed that his attorney had done all that

anyone could do to counsel and assist [him], that he was offering

his guilty plea freely and voluntarily and of [his] own accord,

that no promises [had] been made to [him] other than those

contained in [the] agreement, and that he had not been threatened

in any way by anyone to cause [him] to plead guilty in accordance

with [the] agreement. (Id., 15-16).

This Court held a change of plea hearing on August 2, 2012.

(DE ##516, 1114). When asked whether he was fully satisfied with

the counsel, representation, and advice given to you in this case

by Mr. Milner as your attorney? Guerrero replied yes, Your

Honor. (DE #1114 at 8-9). After Guerrero read through paragraphs

7 through 14 of his plea agreement, the Court asked him whether he

3


read it previously, understood it, agreed with it, and was asking

the Court to approve it. Guerrero answered yes to each of these

questions. (Id. at 9-10). Guerrero acknowledged repeatedly that

he agreed with the individual and collective terms of the plea

agreement and confirmed that he wanted to plead guilty under the

agreement. (Id. at 9-65).

The Court informed Guerrero of the maximum and minimum

penalties for each of the four counts he was pleading guilty to.

(Id. at 14-21). Guerrero indicated that he understood the possible

sentences he could receive. (Id.).

The Court also confirmed that Guerrero understood that the

Court would ultimately decide his sentence and that neither the

Governments recommendations nor the Guidelines were binding. (Id.

at 26-31). This included clear notification that the Governments

recommendation that Guerrero be sentenced to a term of imprisonment

of 228 months was not binding on the Court. (Id. at 30-31).

The following exchange occurred:

Q: Finally, under subsection (g), you and thegovernment are in agreement pursuant to Title18, United States Code, Section 3553, whichare factors that the Court has to consider,and with regards to cooperation that youregoing to have in paragraphs 10 and 11, that aproper sentence in this case would be 228months; is that correct?

A: Yes, Your Honor.

Q: Mr. Guerrero, do you understand that thisis only a recommendation? Who makes thefinal decision?

4


A: You do, Your Honor.

Q: And you understand that I may agree withall of you. I may not. I may think yoursentence should be higher or lower. Doyou understand that?

A: Yes, Your Honor.

Q: Are you in agreement with that?

A: Yes, Your Honor.

(Id. at 30-31).

The Court asked Guerrero to explain why he was guilty of each

Count. (Id. at 46). He indicated that the crimes took place

between 2004 and 2006 in both Illinois and Indiana. (Id. at 46-

47). Guerrero was a Chicago police officer at the time and was

taking directions from Sisto Bernal, a member of the Latin Kings.

(Id. at 47). More specifically, he just took directions regarding

these robberies. (Id. at 48). He admitted he, along with his

police partner, committed the robberies at his [Sisto Bernals]

direction. (Id. at 50). He admitted to robbing drugs, money and

guns. (Id.). These were given to Sisto Bernal. (Id.). He

further admitted that these robberies were done in order to make

the efforts and the activities of the Latin Kings successful. (Id.

at 53).

With regard to Count 14, Guerrero testified that [i]t was a

robbery that my partner and I committed in December of 2006.

(Id.). He robbed James Walsh, also known as Jim Bob. (Id. at 54).

He stated that My partner and I, with our police uniforms, went

5


into his property. (Id.). They then took his possessions. He

further admitted that he had a weapon and that he used the uniform

and weapon in order to accomplish the robbery. (Id. at 54). He

indicated that the stolen property was turned over to Sisto Bernal.

(Id. at 55).

The Court also asked counsel for the Government to summarize

the facts that they were prepared to prove at trial with regard to

each count that Guerrero intended to plead guilty. (Id. at 57).

The following summary was provided:

As to Count One, the RICO conspiracy, ifthe government proceeded to trial, we wouldprove beyond a reasonable doubt that the LatinKings, including its associates, constitutedan enterprise as defined in the statute, agroup of individuals associated in fact. TheLatin Kings constituted an ongoingorganization whose members function as acontinuing unit for the common purpose ofachieving the objectives of the enterprise. The enterprise was engaged in and itsactivities affected interstate commerce.

From roughly 2004 to 2006, thisdefendant, together with his Chicago PoliceDepartment partner, Antonio Martinez, andSisto Bernal, who was one of the leaders ofthe Latin Kings, and others knowingly andintentionally conspired to conduct andparticipate in the conduct of the affairs ofthe Latin Kings through a pattern ofracketeering activity, here consisting ofmultiple acts of Hobbs Act robberies and drugtrafficking.

More specifically, during the course ofthe conspiracy, in the same time period, 2004-2006, this defendant, Mr. Guerrero, wasemployed as a Chicago Police Departmentofficer on the south side of Chicago. He wasassigned to a tactical unit. He would notwear a police uniform. He would wear civilianclothes or tactical gear and carry his

6


department issued gun, his badge and abulletproof vest and clothing that was markedwith the Chicago Police Department on it. During this time period, his co-defendant,Antonio Martinez, was his partner.

During the course of the conspiracy, thisdefendant and his partner Martinez agreed tocommit and then did commit multiple Hobbs Actrobberies, sometimes referred to as drug rips,on the street on behalf of Sisto Bernal, oneof the leaders of the Latin Kings. Theycommitted these robberies while on the clockwhile working for the Chicago PoliceDepartment during their duty shifts. Theyalso did it off duty. They wore their badgesand vests and department-issued firearms,drove their unmarked Chicago Police Departmentcars. Those robberies occurred both inChicago and the Northern District of Indiana. In this district they were primarily inHammond and East Chicago.

During the course of these robberies,this defendant and his partner pretended thatthey were doing legitimate traffic stops onduty and search warrants and searches on dutyand in their capacity as police officers, butwhat they were really doing was looking fordrugs, guns and money to turn over to SistoBernal and the Latin Kings back in Chicago. These robberies include, but arent limitedto, an event between 2004 and 2006 where thisdefendant and his partner and Sisto Bernal andanother individual drove from Chicago to awarehouse around Rockford, Illinois, that wasbeing used to store marijuana. There, thisdefendant and his partner, they were intactical gear with their badges and firearmsmarked as Chicago police officers. At SistoBernals direction, they broke into thewarehouse and stole a large amount ofmarijuana. They turned it over to Bernal andwere paid approximately $2,000 each for this.

There was another event between 2004 and2006 where Sisto Bernal directed thisdefendant and his partner to make a trafficstop on a female driver who was transportingmarijuana from Mexico up to Chicago. Theywere in their Chicago Police Department car. They had their badges on, their department-

7


issued firearms. They did this traffic stopposing or pretending like they were doing alegitimate police traffic stop. They releasedthe female driver. They held on to herminivan. They tore it up and located between90 and 100 pounds of marijuana, which theyturned over to Sisto Bernal.

During the same time period, 2004 to2006, Sisto Bernal directed this defendant andhis partner to the residence of a drugtrafficker in East Chicago, Indiana, in theNorthern District of Indiana, obviouslyoutside of their jurisdiction as Chicagopolice officers. Again, under the guise of alegitimate police investigation, they posed aspolice officers. They had their badges, theirguns, marked as Chicago police officers. Andthey took between $20,000 and $25,000 of drugmoney and turned it over to Sisto Bernal, andthey were paid 3 to $4,000 each for this.

During all these events that Imdiscussing today, there were never anyarrests, no paperwork was ever turned in andno evidence was ever turned in to the ChicagoPolice Department.

There was another event between 2004 and2006 in the City of Chicago where these twodefendants were sent by Sisto Bernal. Theywere sent by a man, Hiluterio Chaves, alsoknown as Zeus or Tails. He was a Latin King. They did another Hobbs Act robbery, this time,again, they were in Chicago uniforms - strikethat - - Chicago police tactical gear, wearingtheir badges, their guns, marked as policeofficers. Again, they were under the guise ofa legitimate police investigation. This timethey took a Latin King, Hiluterio Chavez, withthem who posed as a police officer between thecourse of this. And they stole between 20 and$40,000 in drug proceeds and turned it over toSisto Bernal. Each were paid 5 to $6,000 forthis.

In October of 2005, there was anothersearch they did, another drug rip they didhere in Hammond, Indiana, not far from thiscourthouse, on Harrison Avenue. There, duringthat search, they were sent by Sisto Bernalagain, driving a police car, wearing badgesand their department-issued guns and marked as

8


police officers. They took two Glock brandpistols that the resident legally owned andturned those over to Sisto Bernal. One ofthose guns turned up during a traffic stop inNebraska a time later.

Then, in December 2006, there was anotherHobbs Act robbery they conducted. That was atthe residence of James Walsh, also known asJim Bob. He was a leader of the LatinDragons. He was one of the individuals killedat the Sopranos Restaurant in Griffith. Thats also part of the indictment. There,again, they are driving a tactical car. Theyhave badges. They have their vests. Theyhave their department-issued guns. They wentinside. They tied people up, and they stolefirearms and some currency and some narcoticsand turned it over to Sisto Bernal.

During all these events, he and hispartner are armed. During all these events,they abused a position of power. During someof these events, people were physicallyrestrained and tied up, and they wore theirtactical ballistic vests during all these.

Turning to Count Two, the drugconspiracy, it is basically the same set offacts. They were stealing drugs,predominately cocaine, and turning it over toSisto Bernal, the leader - - or one of theleaders of the Latin Kings. Through Pinkertonliability, they are liable for over 150 kilosor more of cocaine and a thousand kilos ormore of marijuana, and these amounts wereforeseeable to this defendant.

Turning to Count 14 and 15, its the sameset of facts that I mentioned earlier,discussing the robbery, the Hobbs Actrobberies in December of 2006. There was aresidence here in Hammond of James Walsh. Its the same facts that I discussed above. Again, theyre in uniform with guns, badges,and they did one of these robberies at thisresidence and took the things that I mentionedbefore.

In Count 15 well, strike that. Moving backwards, as far as interstate

commerce, they took narcotics that would havetraveled in interstate commerce. They tookdrugs which would have traveled and affected

9


interstate commerce.Further than that, as I mentioned, Mr.

Walsh was a leader of the Latin Dragons. Thatis an organization that operates both inIndiana and in Illinois, and they are anorganization that affected interstatecommerce.

As far as the 924(c) count in Count 15,thats the same set of facts. He had afirearm, his department-issued firearm whiledoing that robbery.

Thats all.

(Id. at 57-63).

After a few follow up questions regarding the interstate

commerce requirement, the following exchange occurred between the

Court and Mr. Guerrero:

Q: Mr. Guerrero, did you listen and payclose attention to the governmentssummary of facts constituting the crimecharged?

A: Yes, Your Honor.Q: Do you agree with the governments

summary of facts?A: Yes, Your Honor.Q: Any part of it you disagree with?A: No, Your Honor.

(Id. at 64).

Following this exchange, counsel for both the Defendant and

the Government stated that they were satisfied that the Defendants

plea was made knowingly and voluntarily and that it was supported

by an independent basis in fact containing each of the essential

elements of the offenses. (Id. at 64). Guerrero then pled guilty

to each of the four counts of the Third Superseding Indictment.

(Id. at 64-65). Based on Guerreros responses at the change of

plea hearing, this Court found:

10


that the defendant, Alex Guerrero, is fullycompetent and capable of entering an informedplea and that his plea of guilty to thecharges contained in Counts 1, 2, 14, and 15of the third superseding indictment is aknowing and voluntary plea supported by anindependent basis in fact containing each ofthe essential elements of the offenses.

(Id. at 65).

On January 11, 2013, the Court sentenced Guerrero. (DE #739).

There were no objections to the Guideline calculation set forth in

the Presentence Report (see DE #700). This Court sentenced

Guerrero to a total term of imprisonment of 228 months. (DE #739).

This consisted of 168 months for each of Counts 1, 2 and 14, and 60

months for Count 15, to be served consecutively. (Id.). This is

the length of imprisonment that the parties agreed was a just and

appropriate sentence in their plea agreement. (DE #501 at 5).

Judgment was entered on January 15, 2013. (DE #743). Guerrero did

not file a notice of appeal.

Guerrero filed the instant motion under section 2255 on

January 10, 2014, setting forth several arguments: (1) Denial ofeffective Assistance of counsel; (2)Conviction obtained by plea

of guilty which was unlawfully induced or not made voluntarily or

with understanding of the nature of the charge and the consequences

of the plea; (3) Conviction obtained by the unconstitutional

failure of the prosecution to disclose to the defendant evidence

favorable to the defendant; (4) My constitutional and civil

rights were violated. (DE #1108). The Government filed a

11


response to the instant motion on March 31, 2014 (DE # 1122).

Thereafter, Guerrero obtained counsel and counsel filed a reply on

his behalf on July 28, 2014. (DE ## 1134, 1144). Therefore, this

motion is fully briefed and ripe for adjudication.

DISCUSSION

Habeas corpus relief under 28 U.S.C. section 2255 is reserved

for "extraordinary situations." Prewitt v. United States, 83 F.3d

812, 816 (7th Cir. 1996). In order to proceed on a habeas corpus

motion pursuant to 28 U.S.C. section 2255, a federal prisoner must

show that the district court sentenced him in violation of the

Constitution or laws of the United States, or that the sentence was

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

to collateral attack. Id.

A section 2255 motion is neither a substitute for nor

recapitulation of a direct appeal. Id.; Belford v. United States,

975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by

Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). As a

result:

[T]here are three types of issues that asection 2255 motion cannot raise: (1) issuesthat were raised on direct appeal, absent ashowing of changed circumstances; (2)nonconstitutional issues that could have beenbut were not raised on direct appeal; and (3)constitutional issues that were not raised ondirect appeal, unless the section 2255petitioner demonstrates cause for theprocedural default as well as actual prejudicefrom the failure to appeal.

12


Belford, 975 F.2d at 313. Additionally, aside from demonstrating

"cause" and "prejudice" from the failure to raise constitutional

errors on direct appeal, a section 2255 petitioner may

alternatively pursue such errors after demonstrating that the

district court's refusal to consider the claims would lead to a

fundamental miscarriage of justice. McCleese v. United States, 75

F.3d 1174, 1177 (7th Cir. 1996).

In assessing Defendant's motion, the Court is mindful of the

well-settled principle that, when interpreting a pro se

petitioner's complaint or section 2255 motion, district courts have

a "special responsibility" to construe such pleadings liberally.

Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir.

1996); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a "pro se

complaint, 'however inartfully pleaded' must be held to 'less

stringent standards than formal pleadings drafted by lawyers'")

(quoting Haines v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe, 279

F.3d 742, 746 (9th Cir. 2002) ("pro se habeas petitioners are to be

afforded 'the benefit of any doubt'") (quoting Bretz v. Kelman, 773

F.2d 1026, 1027 n.1 (9th Cir. 1985)). In other words:

The mandated liberal construction afforded topro se pleadings "means that if the court canreasonably read the pleadings to state a validclaim on which the [petitioner] could prevail,it should do so despite the [petitioner's]failure to cite proper legal authority, hisconfusion of various legal theories, his poorsyntax and sentence construction, or hisunfamiliarity with pleading requirements."

13


Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas

petition from state court conviction) (alterations in original)

(quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

On the other hand, "a district court should not 'assume the role of

advocate for the pro se litigant' and may 'not rewrite a petition

to include claims that were never presented.'" Id. Here, while

Guerrero did have counsel at the time his reply was filed, the

petition was filed pro se; therefore, the Court has assessed

Guerreros claims with these guidelines in mind.

Guerreros Claims are Without Merit

Claims of ineffective assistance of counsel are governed by

the 2-pronged test set forth in Strickland v. Washington, 466 U.S.

668 (1984). To prevail on an ineffective assistance of counsel

claim, the Defendant must first show the specific acts or omissions

of his attorney "fell below an objective standard of

reasonableness" and were "outside the wide range of professionally

competent assistance." Barker v. United States, 7 F.3d 629, 633

(7th Cir. 1993) (quoting Strickland, 466 U.S. at 688, 690); see

also Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003);

Anderson v. Sternes, 243 F.3d 1049, 1057 (7th Cir. 2001). The

second Strickland prong requires defendant to show prejudice, which

entails showing by "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would

have been different." Strickland, 466 U.S. at 694. Regarding the

14


deficient-performance prong, great deference is given to counsel's

performance, and the defendant has a heavy burden to overcome the

strong presumption of effective performance. Strickland, 466 U.S.

at 690; Coleman v. United States, 318 F.3d 754, 758 (7th Cir. 2003)

(citation omitted). A defendant must establish specific acts or

admissions that fell below professional norms. Strickland, 466

U.S. at 690. If one prong is not satisfied, it is unnecessary to

reach the merits of the second prong. Id. at 697.

The Seventh Circuit has held that [o]nly those habeas

petitioners who can prove under Strickland that they have been

denied a fair trial by the gross incompetence of their attorneys

will be granted the writ. Canaan v. McBride, 395 F.3d 376, 385-86

(7th Cir. 2005). Additionally, trial counsel is entitled to a

strong presumption that his performance fell within the range of

reasonable professional assistance and will not be judged with the

benefit of hindsight. Almonacid v. United States, 476 F.3d 518,

521 (7th Cir. 2007) (citing Strickland, 466 U.S. at 689).

Guerreros claim of ineffective assistance of counsel is

difficult to understand. He states that:

My attorney stated to me after reviewing mycase that I had committed no crime, my onlyconnection to this case was through my ChicagoIllinois police patrol partner AntonioMartinez who had a connection with the LatinKing street gang. At no time did AntonioMartinez alert me to any illegal activities. My attorney led me to believe that afterinvestigating this case I had nothing to worryabout that I would be cleared.

15


(DE #1108 at 5). Although it is not entirely clear how he believes

his counsel was ineffective, what is clear is that Guerrero

directly contradicted this claim at his change of plea hearing. He

repeatedly admitted his guilt, providing many details, as noted

above. Because of the great weight we place on these in-court

statements, we credit them over [defendants] later claims.

United States v. Martinez, 169 F.3d 1049, 1054 (7th Cir. 1999).

The Court will not allow Guerrero to rewrite history in order to

undercut the provisions to which he willingly agreed. Id. (citing

United States v. Byrd, 669 F. Supp. 861 (N.D. Ill. 1987)). See

also United States v. Chavers, 515 F.3d 722, 725 (7th Cir. 2008)

(in the context of a defendants attempt to withdraw his guilty

plea, subsequent bare protestations of innocence that contradict

his sworn testimony made during the plea hearing are insufficient

to do so); United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000)

(representations made by the defendant during a change of plea

hearing are entitled to a presumption of verity.).2 As such,

Guerreros claim that his counsel was ineffective must fail.

2 Furthermore, [w]hen a district court conducts a Rule 11 colloquy, itis not putting on a show for the defendant, the public, or anybody else. Thepurpose of a Rule 11 colloquy is to expose coercion or mistake, and thedistrict judge must be able to rely on the defendant's sworn testimony at thathearing. Because the court takes a criminal defendant's rights at achange-of-plea hearing very seriously, it is reasonable to expect, and demand,that the criminal defendant do so as well. For that reason, a defendant isnormally bound by the representations he makes to a court during thecolloquy. Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010)(internal quotation marks and citations omitted).

16


Next, Guerrero argues that his [c]onviction [was] obtained by

plea of guilty which was unlawfully induced or not made voluntarily

or with understanding of the nature of the charge and the

consequences of the plea. (DE #1108 at 4). He explains as

follows:

I plead guilty because my attorney told methat there was over whelming [sic] evidenceagainst me including, a gun, which was thefirearm that I carry as a part of my duty as aPolice Officer not to use as a part of anyillegal activities, alleged phoneconversations that led to Mexico that thegovernment claimed were illegal activities. These phone calls were my wifes relativeswhom she call [sic] periodically to check [on]their welfare. I had no knowledge of thesephone calls.

(Id.).

Again, Guerreros claim that his police issued firearm was not

used in any illegal activity is directly contrary to his testimony

at his change of plea hearing. He has not presented any reason for

this Court to credit his current version of the facts over his

prior sworn testimony. At the change of plea hearing, this Court,

in agreement with counsel for the Defendant and the Government,

found that Guerreros plea of guilty was made knowingly and

voluntarily. His current statements to the contrary are

unpersuasive. As a result, this claim also fails.

Guerrero also argues that his [c]onviction [was] obtained by

the unconstitutional failure of the prosecution to disclose to the

defendant evidence favorable to the defendant. (DE #1108 at 4).

He provides only the following in support of this claim:

17


I was told by my attorney that the prosecutiondelayed giving my attorney information thatwould [have] proven my innocence and or wasfavorable to my case. Please refer to my PCR. Please see attachment.

(Id.).

It is not clear what portion of the PCR (presumably the Pre-

sentence Investigation Report) he thinks supports this claim. The

attachment he referenced is simply the sentencing memorandum filed

by his counsel. (DE # 734). This memorandum describes Guerrero as

a follower but in no way denies that Guerrero was knowingly

involved in the crimes to which he pled guilty. To date, no

evidence has been produced whatsoever that would prove Guerreros

innocence. Even now, Guerrero does not tell the Court what

evidence was allegedly produced late, or how that evidence

allegedly would have proven his innocence. Vague assertions are

not enough. Oliver v. United States, 961 F.2d 1339, 1343 n.5 (7th

Cir. 1992)(noting that, if the allegations of a section 2255 motion

are vague or conclusory, the motion may be denied without a

hearing). This claim fails for vagueness.

Lastly, Guerrero argues that his constitutional and civil

rights were violated. He further explains as follows:

Before I could get to trial, I was accused inthe eye of the media who was bias andjudgmental against me for being a ChicagoPolice Officer who are held to a higherstandard. At the time of my court appearanceI was already judged guilty, my name wasslandered, my association with AntonioMartinez made me look guilty. My police unionthey ask me to sign papers that I thought were

18


to help me receive representation they turnedout to be dismissal papers. I was told that Iwas no longer a part of them. I have fellowofficers in the Chicago Police Department thatwant to come forward but could not for fear oflosing their jobs.

(DE #1108 at 5). First off, Guerreros alleged wrongful

termination by the Chicago Police Department is not a basis for

relief under 28 U.S.C. section 2255. And, even if his assertion

that the public viewed him as guilty before trial is true, that too

provides no basis for relief under section 2255. Guerrero is not

arguing that any jury was unfairly biased against him - just that

public opinion was biased against him. Indeed, this case never

proceeded to a jury trial. As a result, this claim does not

include any facts which would support his claim that his

constitutional and civil rights were violated.

While this resolves each of Guerreros claims, one additional

matter must be addressed. It was noted earlier that Guerrero

obtained counsel after his section 2255 motion was filed and that

the reply brief was filed by counsel. According to counsel:

[Guerreros] plea was primarily based uponspeculation and careless recommendations fromhis trial counsel. Most significant was therepresentation by counsel that Guerrero couldpossibly face life in prison if he lost attrial.

(DE #1144 at 2-3). According to counsel, Guerreros plea is the

result of this misinformation. (Id. at 3). What Guerreros

section 2255 motion actually says is not that his counsel told him

19


that he could face life in prison if he lost at trial, but the

reason he did not file an appeal was that:

I had no knowledge of what appeal to file. Iwas told by my attorney that if I filed anappeal I would receive a life sentence. I wastold that there would be repercussions. Myattorney would not turn over all of thedocuments to my case so that I can properlyfile for my appeals.

(DE # 1108 at 5). Putting aside counsels confusion over the

context in which Guerreros trial counsel allegedly told him he

would be facing a life sentence, that was indeed true: Guerrero was

advised correctly by the Court that he was facing a possible life

term of imprisonment on Counts One and Two (DE #1114 at 14 -16).

And, even if Guerrero intended his explanation of why he did not

raise certain issues previously to be a separate claim for relief -

which is doubtful - the claim would fail. Guerrero did not allege

that he directed his counsel to appeal and counsel refused. Roe v.

Flores-Ortega, 528 U.S. 470, 477 (2000). There are no allegations

that his wishes were disregarded. In the absence of direction from

a client to file an appeal, a lawyer remains obligated to consult

with his client regarding the advantages and disadvantages of

taking an appeal and make a reasonable effort to discover the

[clients] wishes. Id. at 478. Where an attorney consulted with

the client regarding a possible appeal, the attorney can only be

deemed professionally deficient if he then fails to follow the

clients express instructions regarding the possible appeal. Id.

20


Here, Guerreros section 2255 motion reveals that some discussion

about whether an appeal was warranted took place between Guerrero

and trial counsel, however imperfect they may have been, and fails

to assert that Guerrero then directed that an appeal be filed.

Guerrero has not demonstrated his counsel was ineffective by

advising him not to appeal or failing to file an appeal on his

behalf.

Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2255

Proceedings, a district court must issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant. A certificate of appealability may issue only if the

applicant has made a substantial showing of the denial of a

constitutional right. 28 U.S.C. 2253(c)(2). To make such a

showing, a defendant must show that reasonable jurists could

debate whether (or, for that matter, agree that) the motion should

have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks and citation omitted).

For the reasons set forth above, Guerrero has not stated any

grounds for relief under section 2255. The Court finds no basis

for a determination that reasonable jurists would find this

21


decision debatable or incorrect or that the issues deserve

encouragement to proceed further. Therefore, a certificate of

appealability will not be issued.

CONCLUSION

For the aforementioned reasons, Defendants section 2255

motion is DENIED. The Clerk is ORDERED to DISMISS this case WITHPREJUDICE. Further, this Court declines to issue Defendant acertificate of appealability. The Clerk is ORDERED to distributea copy of this order to Alex Guerrero, #11905-027, Allenwood FCI -

1000- Low, Federal Correctional Institution, Inmate Mail/Parcels,

P.O. Box 1000, White Deer, PA 17887, or to such other more current

address that may be on file for the Petitioner.

DATED: June 22, 2015 /s/ RUDY LOZANO, JudgeUnited States District Court

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Indictment 06 24 15Sentencing Memorandum 06 24 15AOJ 06 24 15Motion to Vacate 06 24 15Answer to Motion to Vacate 06 24 15Order on Motion 06 24 15

usa v guerrero

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