United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
pending before the Court is the Report and Recommendation
("R&R") (Doc. 230) filed in this case on July
11, 2016, by the Honorable Mark E. Ford, United States
Magistrate Judge for the Western District of Arkansas. On
July 25, 2016, Defendant/Petitioner Manuel Haro-Gutierrez
filed a Motion for Extension of Time to File Objections (Doc.
231), which was granted. Thereafter, on July 29, 2016, Mr.
Haro-Gutierrez filed his Objections (Doc. 234) to the
R&R, and the Court undertook a de novo review of
the record pursuant to 28 U.S.C. § 636(b)(1)(C). For the
reasons explained herein, the Court will
ADOPT the R&R in its entirety and
DENY Mr. Haro-Gutierrez's Amended Motion
to Vacate (Doc. 225) under 28 U.S.C. § 2255.
April 25, 2012, Mr. Haro-Gutierrez appeared with his
Court-appointed attorney, Mauricio Herrera, before the
Honorable James R. Marschewski, United States Magistrate
Judge for the Western District of Arkansas, for a change of
plea hearing. Judge Marschewski submitted an R&R
recommending acceptance of Mr. Haro-Gutierrez's plea of
guilty to the charge of conspiracy to commit money
laundering, in violation of 18 U.S.C. §§
1956(a)(1)(B)(i) and (h). The plea was formally accepted by
the Court in an Order dated April 26, 2012. (Doc.
132). A Presentence Investigation Report ("PSR")
was then prepared, and prior to sentencing, Mr.
Haro-Gutierrez's lawyer filed a Motion for Downward
Departure (Doc. 171), arguing that although the Guideline
range of imprisonment set forth in the PSR was uncontested,
the Court should depart downward from the Guideline range due
to Mr. Haro-Gutierrez's advanced age and medical
condition. The Motion explained that Mr. Haro-Gutierrez was
50 years old and suffered from a heart condition and
diabetes, for which he took 19 different medications.
Court denied Mr. Haro-Gutierrez's Motion for Downward
Departure in a text-only Order issued on October 18, 2012,
but granted the Government's Motion (Doc. 167) for a
one-level downward departure under U.S.S.G. § 5K1.1.
Prior to departure, Mr. Haro-Gutierrez's base offense
level was 20, and he was subject to a six-level enhancement
under § 2S1.1(b)(1), a two-level enhancement under
§ 2S1.1(b)(2)(B), and a four-level enhancement under
§ 3B1.1(a). See Doc. 179, p. 13. After all
enhancements were added, and points for acceptance of
responsibility were subtracted, his total offense level was a
29, and his sentencing range was 87-108 months. After
departure, his total offense level dropped to a 28, and his
sentencing range became 78-97 months. See Doc. 193,
p. 2. The Court sentenced him to 90 months imprisonment,
approximately the middle of the applicable sentencing range.
considering Mr. Haro-Gutierrez's Amended Motion to Vacate
(Doc. 225), he first argues he is entitled to retroactive
relief pursuant to the Supreme Court's rulings in
Johnson v. United States, 135 S.Ct. 2551 (2015), and
Welch v. United States, 136 S.Ct. 1257 (2016). As
Judge Ford explained in his R&R, however, no relief is
available to Mr. Haro-Gutierrez under Johnson
because he was not sentenced pursuant to the Armed Career
Criminal Act, 18 U.S.C. § 924(e), nor was he subject to
any sentencing enhancement as a career offender under §
4B1.1 of the Guidelines. Mr. Haro-Gutierrez does not contest
Judge Ford's recommendations regarding Johnson
relief. Instead, he objects to the R&R's conclusions
regarding ineffective assistance of counsel, specifically
that: (1) counsel failed to inform him prior to his guilty
plea that he might be subject to a sentencing enhancement or
enhancements; (2) counsel assured him he would only get a
sentence of five years of imprisonment; and (3) counsel never
disclosed the contents of the PSR to him prior to the
three of Mr. Haro-Gutierrez's objections are overruled
for the same reason: he offers no new facts or circumstances
that would lead the Court to question the truthfulness of
statements he made under oath in open court, and in his
signed plea agreement. Mr. Haro-Gutierrez affirmed in his
plea agreement that he understood the Court would consider
the United States Sentencing Guidelines in determining his
sentence, that no specific sentence was promised, that a
sentence could be imposed that was greater than that
contemplated by the parties, and that relevant conduct would
be a factor the Court would consider at the time of
sentencing. (Doc. 116, p. 9). During the plea hearing, the
Court questioned Mr. Haro-Gutierrez and was satisfied that he
was "aware of the nature of the charges, the applicable
maximum penalties, and the consequences of the plea" and
that he affirmed he had sufficient time to consult with his
lawyer prior to entering his guilty plea. (Doc. 112, p. 2).
Finally, during the sentencing hearing, Mr. Haro-Gutierrez
and his attorney informed the Court that they had read and
discussed the PSR prior to the hearing. See Doc. 178.
Supreme Court has long held that "[s]olemn declarations
in open court carry a strong presumption of verity."
Blackledge v. Allison, 431 U.S. 63, 74 (1977).
"The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as
are contentions that in the face of the record are wholly
incredible." Id. Mr. Haro offers nothing but
conclusory allegations to show his counsel was ineffective,
and these allegations are flatly contradicted by the sworn
testimony and signed pleadings submitted when he faced these
criminal charges in 2012.
IS THEREFORE ORDERED that the Report and
Recommendation (Doc. 230) is APPROVED AND ADOPTED IN
ITS ENTIRETY, and the Amended Motion to Vacate (Doc.
225) is DENIED. Judgment will enter
separately this day.
IS SO ORDERED.
 The Honorable Jimm Larry Hendren