United States District Court, S.D. Indiana, New Albany Division
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
WALTON PRATT, JUDGE
matter is before the Court on a Motion to Vacate, Set Aside
or Correct a Sentence pursuant to 28 U.S.C. § 2255 filed
by Petitioner Orlis Machado-Cantillo (“Machado”).
For the reasons explained in this Order, the motion is
denied and dismissed with prejudice. In
addition, the Court finds that a certificate of appealability
should not issue.
SECTION 2255 MOTION STANDARDS
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974). A court may grant relief from a
federal conviction or sentence pursuant to § 2255
“upon the ground 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(a). The scope of relief
available under § 2255 is narrow, limited to “an
error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in
a complete miscarriage of justice.” Borre v. United
States, 940 F.2d 215, 217 (7th Cir. 1991) (internal
29, 2015, Machado was charged in a multi-count
multi-defendant Second Superseding Indictment, United
States v. Freire-Pifferrer et al., No.
4:14-cr-00031-TWP-VTW-6 (S.D. Ind.) (hereinafter “Crim.
Dkt.”), dkt. 120. Machado was charged in counts 9, 11,
13, 17, and 19 with possession of goods stolen from
interstate commerce, in violation of 18 U.S.C. § 659;
counts 10, 12, 14, 18, and 20 with interstate transportation
of stolen property, in violation of 18 U.S.C. § 2314;
and count 23 with conspiracy to possess goods stolen from
interstate commerce. Crim. Dkt. 32.
attorney was appointed to represent Machado in the criminal
case. Because Machado is not a native English language
speaker, an interpreter was used during court proceedings and
by counsel to consult with Machado. See Crim. Dkt.
763 (approving payment for interpreter services).
March 10, 2016, with the assistance of counsel, Machado filed
a petition to enter a guilty plea and plea agreement. Crim.
Dkt. 362. The plea agreement, entered pursuant to Fed. R.
Crim. P. 11(c)(1)(B), provided that Machado would plead
guilty to counts 10, 12, 14, 18, 20, and 23 of the
superseding indictment. Id. at 1. In exchange for
the plea, the United States agreed it would move to dismiss
counts 9, 11, 13, 17, and 19. Id. at 4.
parties did not stipulate as to the terms of his sentence.
Rather, Machado agreed and stated that he understood that the
Court would use its discretion to fashion a sentence within
the statutory ranges. Id. at 2-5. He also agreed and
understood that the Court would take into account the
Sentencing Guidelines in determining the appropriate sentence
within the statutory range, but that the Sentencing
Guidelines are only advisory in nature, and thus the final
determination of the sentence would be made by the Court.
Id. at 2-3. The parties agreed to reserve the right
to present evidence and arguments concerning what they
believed to be the appropriate sentence in the matter.
Id. at 4.
agreed to pay a mandatory special assessment fee of $600.
Id. at 5. He also agreed that he would be required
to pay restitution and that the total amount owed was at
least $7, 000, 000. Id. He agreed that the
restitution would be payable to the victims of the following
• the September 9, 2013, theft of Apple computer
products valued at approximately $1, 280, 000 from the Ingram
Micro facility in Harrisburg, Pennsylvania;
• the April 26, 2014, theft of Hewlett Packard computer
products valued at approximately $608, 482.48 from El Paso,
• the June 4, 2014, theft of LG Electronics cellular
telephone valued at approximately $1, 501, 500 from the Pilot
Travel Center in Troy, Illinois;
• the August 1, 2014, theft of COTY cosmetic products
valued at approximately $1, 224, 229.20 from the Flying J
truck stop in Wytheville, Virginia;
• the October 3, 2014, theft of Samsung appliances
valued at approximately $53, 000 from the Flying J truck stop
in Whiteland, Indiana;
• the October 16, 2014, theft of Panasonic electronics
valued at approximately $160, 000 from the Flying J truck
stop in Lebanon, Indiana;
• the December 9, 2014, theft of T-Mobile cellular
telephones valued at approximately $460, 000 from the Flying
J truck stop in Oklahoma City, Oklahoma;
• the January 14, 2015, theft of Limited Brands products
valued at approximately $807, 000 from the Flying J truck
stop in Jeffersonville, Ohio;
• the February 3, 2015, theft of Mead Johnson baby
formula valued at approximately $339, 000 from the Flying J
truck stop in Jeffersonville, Ohio;
• the February 25, 2015, theft of COTY products valued
at approximately $608, 482.48 from the Travel Centers of
America in Wytheville, Virginia;
Id. at 5-6.
plea agreement, Machado stipulated that, under the United
States Sentencing Guidelines (“U.S.S.G.”), his
base offense level was 6 based on § 2B1.1(a)(2).
Id. at 8. The parties further stipulated that the
total loss amount was more than $3, 500, 000 but not more
than $9, 500, 000.00, and therefore 18 levels were added
pursuant to U.S.S.G. § 2B1.1(b)(1)(J). Two levels were
added because the offense involved 10 or more victims, §
2B1.1(b)(2)(A)(i), two levels were added because the offense
involved receiving stolen property, § 2B1.1(b)(4), and
two levels were added because the offense involved an
organized scheme to steal good or chattels from cargo
shipments, § 2B1.1(b)(14)(B). Id. at 8. The
parties also stipulated that, because Machado had
demonstrated recognition and affirmative acceptance of
personal responsibility, he was entitled to a three-level
reduction pursuant to U.S.S.G. § 3E1.1. Id. at
waived his right to appeal or otherwise challenge his
conviction or sentence, except that the appellate waiver did
not encompass claims that he received ineffective assistance
of counsel. Id. at 9-10. Machado also agreed that he
recognized that pleading guilty might have consequences with
respect to his immigration status. Id. at 10.
preparation for sentencing, the United States Probation
Office prepared a presentence report (PSR). See
Crim. Dkt. 466. The probation officer calculated
Machado's total offense level at 27. Id. ¶
32. Machado's total criminal history score was 4, which
established a criminal history category of III. Id.
¶ 42. An offense level 27 combined with a criminal
history category III would result in an advisory Guideline
range of 87-108 months' imprisonment. Id. ¶
change of plea and sentencing hearing was held on July 25,
2016, with the use of an interpreter. Crim. Dkt. 761. During
the hearing, the Court and parties went over the stipulated
factual basis, which Machado signed and agreed to.
Id.; Crim. Dkt. 486 (Stipulated factual basis).
Machado's counsel made two objections to the PSR. The
first objection was to ¶ 23 of the PSR, that being a
two-level enhancement because the offense involved receiving
stolen property and the defendant was a person in the
business of receiving and selling stolen property. Crim. Dkt.
486 at 22. The Court overruled objection number 1. Counsel
also objected to how the amount of loss was calculated,
arguing that paragraph 2 lists stolen goods totaling only $2,
463, 000.00. Crim. Dkt. 486 at 23. Discussion was held
explaining the loss is the value of the stolen goods at the
time the merchandise was stolen and includes intended loss.
The Court overruled objection number 2. The Court accepted
Machado's guilty plea and sentenced him to 96 months'
imprisonment, to be followed by three years of supervised
release. Crim. Dkt. 488. An amended Judgment that included
restitution amounts was entered on October 11, 2016. Crim.
Dkt. 609. Machado did not appeal his conviction or sentence.
February 16, 2017, Machado filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. Dkt. 1; see also Dkt. 5 (amended § 2255
motion). On May 10, 2017, counsel was appointed to represent
Machado in this action pursuant to 18 U.S.C. § 3006A. On
October 9, 2017, through appointed counsel, Machado filed a
second amended motion. Dkt. 24. The United States filed a
response. Dkt. 26. Machado did not file a reply, and the time
to do so has passed.
seeks relief pursuant to § 2255 arguing that his trial
counsel provided ineffective assistance of counsel for: (1)
failing to submit a sentencing memorandum outlining
mitigating factors; (2) failing to establish that Machado did
in fact want to plead guilty, when his primary language was
Spanish; (3) failing to present any witnesses or evidence on
Machado's behalf during sentencing; (4) failing to
provide a more compelling sentencing argument; and (5)
failing to adequately explain the consequences of pleading
guilty - Machado thought he was pleading to 70 months yet he
was sentenced to 96 months. Dkt. 24 at 3-5. Machado also
separately asserts that his plea of guilty as to Count 18 was
no knowingly made because his primary language is Spanish.
Id. at 6-7.
Ineffective Assistance of Counsel Standard
petitioner claiming ineffective assistance of counsel bears
the burden of showing (1) that trial counsel's
performance fell below objective standards for reasonably
effective representation and (2) that this deficiency
prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 688-94 (1984); United States v. Jones,
635 F .3d 909, 915 (7th Cir. 2011). If a petitioner cannot
establish one of the Strickland prongs, the court
need not consider the other. Groves v. United
States, 755 F.3d 588, 591 (7th Cir. 2014). To satisfy
the first prong of the Strickland test, a petitioner
must direct the court to specific acts or omissions of his
counsel. Wyatt v. United States, 574 F.3d 455, 458
(7th Cir. 2009). The court must then consider whether in
light of all of the circumstances whether counsel's
performance was outside the wide range of professionally
competent assistance. Id. In order to satisfy the
prejudice component, a petitioner must establish that
“there is 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. In addition, in
attacking trial counsel's performance, a defendant
“must ‘overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.'” Frentz v. Brown,
876 F.3d 285, 293 (7th Cir. 2017) (quoting
Strickland, 466 U.S. at 689).
context of guilty pleas, “in order to satisfy the
‘prejudice' requirement, the defendant must show
that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have ...