United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY, UNITED STATES DISTRICT JUDGE.
Munoz-Guzman timely moves (Doc. 1) under 28 U.S.C. §
2255 to vacate his sentence. The United States responds (Doc.
5), and Munoz-Guzman replies (Doc. 6).
written plea agreement, Munoz-Guzman admits that he and three
conspirators purchased stolen credit card and debit card
information, used counterfeit cards to purchase fuel, and
re-sold the fuel at a discounted rate. (Crim. Doc. 97 at
17–18) Munoz-Guzman pleaded guilty to conspiracy to
commit bank fraud, in violation of 18 U.S.C. § 1349, and
conspiracy to commit money laundering, in violation of 18
U.S.C. § 1956(h). Munoz-Guzman received a
below-guidelines sentence of 78 months’ imprisonment
and was ordered to pay $174, 003.74 in restitution.
claims ineffective assistance, a difficult claim to sustain.
To demonstrate that counsel was constitutionally ineffective,
a movant must show (1) that counsel’s representation
fell below an objective standard of reasonableness and (2)
that counsel’s deficient performance prejudiced the
movant. Strickland v. Washington, 466 U.S. 668, 687
(1984). “[T]here is no reason for a court deciding an
ineffective assistance claim . . . to address both components
of the inquiry if the defendant makes an insufficient showing
on one.” Strickland, 466 U.S. at 697.
Ineffective assistance at sentencing
an “intended loss” of more than $400, 000.00, the
PSR applied a fourteen-level increase to the base offense
level under United States Sentencing Guidelines, Section
2B1.1(b)(1). Munoz-Guzman claims that counsel rendered
deficient performance both by failing to discuss with him
“actual loss” and by failing to object to the
reasonably declined to discuss the actual loss. Application
Note 3A to Section 2B1.1 explains that “loss”
means “the greater of actual loss or intended
loss.” In Munoz-Guzman’s case, the intended loss
of more than $400, 000.00 exceeds the actual loss of $170,
571.49. (Crim. Doc. 97 at 17–18) The intended loss
counsel reasonably declined to challenge the intended loss.
Chandler v. Moore, 240 F.3d 907, 917 (11th Cir.
2001). Munoz-Guzman admits (Crim. Doc. 97 at 17) using
information from 639 credit or debit cards. The PSR
multiplied 639 by a $1, 000 per-device loss amount, which was
established during the sentencings of Munoz-Guzman’s
conspirators. (Doc. 131 at ¶ 40) Munoz-Guzman identifies
no plausible basis on which counsel could have objected to
the intended loss calculation.
Munoz-Guzman’s experienced defense counsel reasonably
declined to raise an objection that could jeopardize a
downward adjustment for acceptance of responsibility. Counsel
instead advanced a number of other arguments in favor of a
lower sentence and ultimately secured Munoz-Guzman a
below-guidelines term of imprisonment. See
Harrington v. Richter, 562 U.S. 86, 109 (2011)
(“There is a strong presumption that counsel’s
attention to certain issues to the exclusion of others
reflects trial tactics rather than sheer neglect.”);
Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th
Cir. 1998) (“Our strong reluctance to second guess
strategic decisions is even greater where those decisions
were made by experienced criminal defense counsel.”)
Ineffective assistance for failing to request a restitution
next claims that counsel failed to request a restitution
hearing and failed to contest the restitution amount. Binding
authority prohibits Munoz-Guzman challenging restitution
through an ineffective-assistance ...