`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`TREVOR BOUTTE
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`v.
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`UNITED STATES OF AMERICA
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`§
`§
`§
`§
`§
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`CIVIL ACTION NO. 4:15CV575
`CRIMINAL NO. 4:12CR249(1)
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`ORDER OF DISMISSAL
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`The above-entitled and numbered civil action was referred to United States Magistrate
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`Judge Kimberly Priest Johnson. The Report and Recommendation of the Magistrate Judge (the
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`“Report”) (Civ. Dkt. 7),1 which contains proposed findings of fact and recommendations for the
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`disposition of such action, has been presented for consideration. The Report recommends that the
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`court deny Boutte’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
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`§ 2255 (Dkt. 1), dismiss the case with prejudice, and deny a certificate of appealability. Boutte has
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`filed written Objections (Civ. Dkt. 8). Having made a de novo review of the Objections, the court
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`concludes that the findings and conclusions of the Magistrate Judge are correct and adopts the
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`same as the findings and conclusions of the court.
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`I.
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`BACKGROUND
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`On October 12, 2012, the Drug Enforcement Agency (“DEA”) was investigating a
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`suspected drug conspiracy involving Boutte and a cooperating defendant (“CD”). See Crim. Dkt.
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`33 at 4. Working with DEA agents, the CD had arranged to meet Boutte at a restaurant in Plano,
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`Texas, where Boutte and the CD would complete a transaction involving five (5) kilograms of
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`1 When referencing the docket, the court will designate any reference to Civil Action No. 4:15CV575
`as “Civ.” and Criminal No. 4:12CR249(1) as “Crim.”
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`1
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`Case 4:15-cv-00575-RAS-KPJ Document 9 Filed 04/06/17 Page 2 of 11 PageID #: 274
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`cocaine. See id. At the restaurant, Boutte placed a bag containing $147,520.00 into the CD’s
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`vehicle. See id. After receiving the bag of money from Boutte, the CD told Boutte he would deliver
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`the cocaine to Boutte’s residence at a later time. See id. Shortly thereafter, the CD received a
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`telephone call from Boutte asking about the status of the cocaine delivery. See id. Following this
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`incident, DEA agents went to Boutte’s residence and placed him under arrest. See id. DEA agents
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`also executed a search warrant on the residence; agents seized $30,628.00 in cash, multiple
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`firearms, and approximately 3.4 grams of cocaine from the home. See id.
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`On November 7, 2012, Boutte was charged by indictment with two counts. See Crim.
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`Dkt. 15. Count One charged Boutte with participating in a conspiracy to possess with the intent
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`to distribute five (5) kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.
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`See id. at 1. The conspiracy was allegedly active for over six years, between January of 2006 and
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`November of 2012. See id. Count Two charged Boutte with possession of firearms on or about
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`October 11, 2012, in furtherance of the drug conspiracy described in Count One, in
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`violation of 18 U.S.C. § 924(c). See id. at 2.
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`On January 24, 2013, Boutte entered guilty pleas as to both counts without a written plea
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`agreement. See Crim. Dkt. 24. At the change of plea hearing, the Government informed Boutte of
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`the charges against him, the elements of the charges, and the Government’s burden to prove the
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`elements beyond a reasonable doubt should he proceed to trial. See Crim. Dkt. 36 at 6-7. The court
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`advised Boutte that the conspiracy charge carried a statutory penalty of not less than ten (10)
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`years’ and not more than life imprisonment and the firearm charge carried a statutory penalty of
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`not less than five (5) years’ and not more than life imprisonment. See id. at 7-8. The court further
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`advised Boutte that any sentence imposed on the firearm charge would run consecutive to a
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`sentence on the drug trafficking charge. See Civ. Dkt. 1-3 at 4; Crim. Dkt. 36 at 7-8. The court
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`2
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`engaged in a colloquy with Boutte to ensure he understood the meaning of “consecutive” in the
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`context of his sentence:
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`THE COURT: Now, do you understand that that particular count, I believe, is
`served consecutively? That means you’ll be sentenced first on count one and then
`whatever sentence you receive on count one, you’ll get a sentence on count two,
`and you’ll have to serve count two after you serve count one?
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`DEFENDANT BOUTTE: Yes, Sir.
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`THE COURT: Okay. Very well. That’s what consecutive means. All right.
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`See Crim. Dkt. 36 at 8. Boutte verbally acknowledged that he understood the elements of the
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`charges and the applicable penalties. See id. at 8. He further represented to the court that he had
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`thought about entering a guilty plea and decided of his own free will to enter a guilty plea, without
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`regard to force, threats, or promises from anyone else. See id. at 9.
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`Notwithstanding his attestations at the change of plea hearing, on April 4, 2013, Boutte
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`filed a Motion to Withdraw Guilty Plea as to the firearm charge on the grounds that the plea was
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`unknowing and involuntary. See Crim. Dkt 32. At the hearing on the motion, Boutte asserted that,
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`after reading the Presentence Investigation Report (“PSR”), he had come to believe the
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`Government lacked a factual basis to prove the weapons recovered from his home had been used
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`“in furtherance of” the drug trafficking crime, as required for conviction under 18 U.S.C. § 924(c).
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`See Crim. Dkt. at 23-29. Boutte also stated he plead guilty on the firearm charge because he thought
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`he “couldn’t plead guilty just to one count, but . . . had to plead guilty to both of the counts.” See
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`id. 50 at 23. Boutte stated he came to this conclusion based on the advice of counsel. See id.
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`However, Boutte’s defense counsel testified that he never gave Boutte any such advice. See id. at
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`32-33. Ultimately, the court denied Boutte’s Motion to Withdraw Guilty Plea. See id. at 35.
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`3
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`Thereafter, the court sentenced Boutte to the mandatory minimum sentence on both counts,
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`to be served consecutively. See Crim. Dkt. 47. The court entered formal judgment on September
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`24, 2013. Id.
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`Boutte appealed and, on May 29, 2014, the United States Court of Appeals for the Fifth
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`Circuit affirmed his conviction. See United States v. Boutte, 569 F. App’x 311, 312 (5th Cir. 2014).
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`Among other things, the Fifth Circuit held Boutte’s guilty plea on the firearm charge was knowing
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`and voluntary, and the trial court’s denial of Boutte’s motion to withdraw his guilty plea was not
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`error. See id. at 312-13.
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`On August 21, 2015, Boutte filed the instant § 2255 motion, challenging his guilty plea on
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`the firearm charge and his sentence. See Civ. Dkt. 1. Boutte argued: (1) his guilty plea on the
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`firearm charge was not knowing and voluntary because he entered the plea without understanding
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`a sentence imposed on the firearm charge would run consecutive to a sentence imposed for the
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`drug conspiracy charge; (2) his trial counsel rendered ineffective assistance when advising him of
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`the sentencing consequences of a guilty plea on the firearm charge; and (3) he was entitled to a
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`safety-valve reduction to his sentence pursuant to Amendment 782 of the Sentencing Guidelines.
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`The Magistrate Judge concluded each of Boutte’s claims lacked merit and recommended that his
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`§ 2255 motion be denied. See Civ. Dkt. 7 at 8. Boutte now objects to the findings and conclusions
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`of the Magistrate Judge. See Civ. Dkt. 8.
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`II.
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`ANALYSIS
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`A. THE COURT ADOPTS THE MAGISTRATE JUDGE’S CONCLUSION THAT
`BOUTTE’S GUILTY PLEA WAS KNOWING AND VOLUNTARY
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`Boutte objects to the Magistrate Judge’s conclusion that he failed to establish his claim that
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`his guilty plea on the firearm charge was unknowing and involuntary. See Civ. Dkt. 8 at 1. Boutte
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`argues the Magistrate Judge should have accorded greater weight to evidence that his defense
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`4
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`counsel did not properly explain that a sentence on the firearm charge would run consecutive to a
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`sentence on the conspiracy until April 3, 2013, well after the change of plea hearing, when counsel
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`met with Boutte to review the PSR. See id. at 5. Boutte cites evidence that counsel brought a
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`printed copy of the text of 18 U.S.C. § 924 to the April 3, 2013, meeting; the printout had a date-
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`stamp of April 2, 2013. See id. Based on this evidence, Boutte asserts, “[i]t is reasonable to
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`conclude that had trial counsel done his job and explained the consequences of pleading guilty to
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`the 924(c)(1) weapons count to Movant before January 24, 2013 (when Movant pleaded guilty to
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`both counts), trial counsel would not have had [to] print out 18 U.S.C. § 924 from the Cornell Law
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`School Legal Information Institute on April 2, 2013 to show Movant on April 3, 2013.” See id.
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`However, the court does not agree that this conclusion is reasonable. The mere fact that
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`counsel printed a copy of the statute before meeting with Boutte does not support Boutte’s
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`contention that counsel failed to review or discuss the elements of the statute with Boutte before
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`the change of plea hearing. Nor does it support an inference that counsel was unfamiliar with the
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`statute at earlier dates. Boutte’s argument to the contrary is pure speculation.
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`Boutte also contends the Magistrate Judge should have accorded more weight to Boutte’s
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`statements that he was confused about the meaning of the word “consecutive” at the change of
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`plea hearing; therefore, he did not understand the nature of the punishment associated with the
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`firearm charge when he pled guilty. See id. at 1-2. However, Boutte’s contention that he did not
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`appreciate the meaning of “consecutive” is unsupported by the record. The trial court conducted a
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`colloquy with Boutte at the change of plea hearing regarding the meaning of “consecutive” in the
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`context of his sentence. See Crim. Dkt. 36 at 8. The court explained “consecutive” in laymen’s
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`terms, and Boutte unequivocally indicated he understood the penalty he faced. See id. In light of
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`this record, the court agrees with the Magistrate Judge’s finding that “Movant’s own statements in
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`5
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`response to the Court’s questioning at the change of plea hearing indicate that he understood his
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`sentencing exposure on the firearm charge, including the requirement that the sentence be served
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`consecutively,” before he entered his guilty plea. Civ. Dkt. 7 at 5.
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`The court further observes that Boutte was not silent about other instances of confusion at
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`the change of plea hearing. For example, he personally explained to the court that the
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`Government’s factual statement was incorrect with respect to the quantity of drugs for which
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`Boutte was taking responsibility. See Crim. Dkt. 36 at 12. In light of Boutte’s apparent willingness
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`and ability to resolve confusion at the change of plea hearing by identifying the issue and
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`requesting clarification from the court, his silence regarding the consecutive term of his sentence
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`speaks volumes.
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`There is a heavy burden on a defendant who seeks to overcome an attestation of
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`voluntariness in open court at a hearing pursuant to Rule 11 of the Federal Rules of Criminal
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`Procedure. See United States v. McElhaney, 469 F.3d 382, 385 (5th Cir. 2006) (citing United States
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`v. Diaz, 733 F.2d 371, 375 (5th Cir. 1984)). To overcome that burden, the defendant must show
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`that his plea was “‘so much the product of misunderstanding, duress, or misrepresentation by
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`others as to make the plea a constitutionally inadequate basis for imprisonment.’” Diaz, 733 F.2d
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`371, 373-74 (5th Cir. 1984) (quoting Blackledge v. Allison, 431 U.S. 63, 75 (1977)). Boutte has
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`not carried this burden. His argument that he did not understand the meaning of “consecutive” is
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`simply not borne out by the record.
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`To the extent Boutte argues the Magistrate Judge should have convened a hearing to
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`develop facts related to Boutte’s subjective understanding (See Civ. Dkt. 8 at 6, 10), his objection
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`lacks merit. Boutte has presented no independent evidence indicating the likely merit of his
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`allegations, thus an evidentiary hearing is not warranted. See United States v. Cervantes, 132 F.3d
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`6
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`Case 4:15-cv-00575-RAS-KPJ Document 9 Filed 04/06/17 Page 7 of 11 PageID #: 279
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`1106, 1110 (5th Cir. 1998) (“If the defendant produces independent indicia of the likely merit of
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`her allegations, typically in the form of one or more affidavits from reliable third parties, she is
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`entitled to an evidentiary hearing on the issue. If, however, the defendant's showing is inconsistent
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`with the bulk of her conduct or otherwise fails to meet her burden of proof in the light of other
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`evidence in the record, an evidentiary hearing is unnecessary.” (citation omitted)); United States
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`v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981) (“When the files and records of a case make manifest
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`the lack of merit of a Section 2255 claim, the trial court is not required to hold an evidentiary
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`hearing.”); United States v. Auten, 632 F.2d 478, 480 (5th Cir. 1980) (denying an evidentiary
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`hearing because the defendant pointed to no evidence, and the court found none, to support the
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`defendant’s allegations).
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`B. THE COURT ADOPTS THE MAGISTRATE JUDGE’S CONCLUSION THAT
`BOUTTE FAILED TO SHOW INEFFECTIVE ASSISTANCE OF COUNSEL
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`Next, Boutte objects to the Magistrate Judge’s conclusion that he failed to show his trial
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`counsel rendered ineffective assistance when advising Boutte of the consequences of pleading
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`guilty to the firearm charge. See Civ. Dkt. 8 at 5-7. The Supreme Court has held:
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`[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas
`based on ineffective assistance of counsel. In the context of guilty pleas, the first
`half of the Strickland v. Washington test is nothing more than a restatement of the
`standard of attorney competence already set forth in Tollett v. Henderson [citation]
`and McMann v. Richardson [citation]. The second, or “prejudice” requirement, on
`the other hand, focuses on whether counsel's constitutionally ineffective
`performance affected the outcome of the plea process. In other words, 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 insisted on going to trial.
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`Hill v. Lockhart, 474 U.S. 52, 58–59 (1985) (citations omitted). Boutte objects to the Magistrate
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`Judge’s conclusion that he failed to establish ineffective assistance under this standard on two
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`grounds.
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`7
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`First, Boutte renews his assertion that counsel rendered deficient performance because he
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`affirmatively misadvised Boutte that sentences on the drug trafficking and firearm charges would
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`“run together” and not “back to back.” See Civ. Dkt. 8 at 1; see also 1-3 at 5. Boutte suggests the
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`Magistrate Judge should have conducted an evidentiary hearing to determine the precise nature of
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`trial counsel’s advice. See Civ. Dkt. 8 at 6, 10. However, the Magistrate Judge properly concluded
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`that any deficiency in counsel’s advice was cured by the advice furnished by the court regarding
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`the consecutive nature of Boutte’s sentence. Accordingly, the Magistrate Judge reasoned that
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`Boutte could not demonstrate Strickland prejudice, even if counsel’s performance was deficient.
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`Because an evidentiary hearing on the nature of counsel’s advice would only have produced facts
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`related to the objective reasonableness of counsel’s performance under the deficient performance
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`prong of Strickland, the court is of the opinion that a hearing would have been unhelpful in this
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`case.
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`Boutte also argues counsel’s performance was deficient because counsel should have, but
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`failed to, advise Boutte that a guilty plea to the firearm charge would necessarily result in the loss
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`of the safety-valve reduction in his sentence pursuant to Amendment 782 of the Sentencing
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`Guidelines. See Civ. Dkt. 8 at 7. Boutte contends he was prejudiced by counsel’s omission because
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`“but-for the [§] 924(c)(1) weapons count, Movant would have qualified for the safety-valve
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`[reduction]” and received a shorter sentence. Id. This argument lacks merit.
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`When a person is convicted under 21 U.S.C. §§ 841, 844, 846, 960, or 963, he or she may
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`be eligible for the “safety-valve” for drug offenses pursuant to 18 U.S.C. § 3553(f), which requires
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`the court to impose a sentence under 28 U.S.C. § 994 “without regard to any statutory minimum
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`sentence,” if certain conditions are met. A defendant is eligible for the safety-valve reduction if
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`the sentencing court finds:
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`8
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`(1) the defendant does not have more than 1 criminal history point, as determined
`under the sentencing guidelines;
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`(2) the defendant did not use violence or credible threats of violence or possess a
`firearm or other dangerous weapon (or induce another participant to do
`so) in connection with the offense;
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`(3) the offense did not result in death or serious bodily injury to any person;
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`(4) the defendant was not an organizer, leader, manager, or supervisor of others in
`the offense, as determined under the sentencing guidelines and was not engaged
`in a continuing criminal enterprise, as defined in section 408 of the Controlled
`Substances Act; and
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`(5) not later than the time of the sentencing hearing, the defendant has truthfully
`provided to the Government all information and evidence the defendant has
`concerning the offense or offenses that were part of the same course of conduct
`or of a common scheme or plan, but the fact that the defendant has no relevant
`or useful other information to provide or that the Government is already aware
`of the information shall not preclude a determination by the court that the
`defendant has complied with this requirement.
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`18 U.S.C. § 3553(f) (emphasis added).
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` Boutte contends, “[t]here was never any evidence presented or even allegation that
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`Movant used a weapon during the transaction in the restaurant parking lot in Plano. . . . Nor was
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`there any evidence presented or even allegation that Movant possessed, showed, brandished, or
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`used a weapon at any time during a drug transaction. He collected guns legally because he had a
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`general interest in them and target shooting.” Civ. Dkt. 8 at 6. However, the plain language of
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`§ 3553(f)(2) precludes safety-valve relief in any case in which the defendant possesses a firearm
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`in connection with the offense, regardless of whether the firearm is showed, brandished,
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`or otherwise used. Furthermore, the “offense” at issue in this case is the six year conspiracy
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`charged in the Indictment. It is not temporally limited to the October 12, 2012, meeting between
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`Boutte and the CD, as Boutte suggests in his Objections.
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`9
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`Boutte undisputedly possessed several firearms during at least some portion of the six
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`year conspiracy charged in this case; indeed, five firearms were seized from Boutte’s residence
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`prior to the November 7, 2012, end date of the conspiracy. Furthermore, the weapons were
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`seized at the same time and place as a large quantity of currency and approximately 3.4
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`grams of cocaine—additional evidence of the drug conspiracy. See Crim. Dkt. 33 at 4.
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`Even without Boutte’s admission regarding
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`the firearm charge,
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`the evidence of his
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`possession of several firearms, significant amounts of currency, and cocaine, paired with
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`Boutte’s unchallenged admission that he participated in a six year conspiracy to possess and
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`distribute cocaine, would have precluded safety-valve relief in this case.
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`Counsel cannot be faulted for failing to advise Boutte that entry of a guilty plea would
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`forfeit a safety-valve reduction to which Boutte was never entitled. To the contrary, counsel would
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`have been ineffective had such erroneous advice become the basis for Boutte’s decision to forego
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`a guilty plea. See Lafler v. Cooper, 566 U.S. 156, 164 (2012).
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`C. THE COURT ADOPTS THE MAGISTRATE JUDGE’S CONCLUSION THAT
`BOUTTE’S CLAIM FOR SENTENCE REDUCTION PURSUANT TO
`AMENDMENT 782 IS PRECLUDED FROM COLLATERAL REVIEW
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`In his final objection, Boutte challenges the Magistrate Judge’s conclusion that he is not
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`entitled to relief pursuant to Amendment 782 of the Sentencing Guidelines. Boutte contends this
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`ground for relief does not state a claim that the court misapplied the Sentencing Guidelines, as the
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`Magistrate Judge indicated in her Report. See Civ. Dkt. 7 at 6; 8 at 9. Boutte clarifies that the relief
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`requested under Amendment 782 is “in addition to” or “independent” from his voluntariness and
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`ineffective assistance claims. See Civ. Dkt. 7 at 6; 8 at 9. However, the court finds it unreasonable
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`to construe Boutte’s Amendment 782 argument as anything other than a claim that the trial court
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`misapplied the Sentencing Guidelines. The Magistrate Judge properly concluded that such a claim
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`10
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`is not cognizable in a § 2255 motion. See United States v. Williamson, 183 F.3d 458, 462 (5th Cir.
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`1999).
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`In light of the foregoing, it is ORDERED that Boutte’s Motion to Vacate, Set Aside or
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`Correct Sentence (Dkt. 1) is DENIED, and this case is DISMISSED with prejudice. A
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`certificate of appealability is DENIED. All motions by either party not previously ruled on are
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`hereby DENIED.
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`11
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