Вы находитесь на странице: 1из 98

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

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 3 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 4 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 5 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 6 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 7 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 8 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 9 of 46

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

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 12 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 13 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 14 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 15 of 46

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 17 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 18 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 19 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 20 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 21 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 22 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 23 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 24 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 25 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 26 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 27 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 28 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 29 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 30 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 31 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 32 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 33 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 34 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 35 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 36 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 37 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 38 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 39 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 40 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 41 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 42 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 43 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 44 of 46

USDC IN/ND case 2:10-cr-00109-RL-APR document 230-2 filed 11/16/11 page 45 of 46

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

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

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA
v.
ALEX GUERRERO

)
)
)
)
)

2:10 CR 00109

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 2 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

USDC IN/ND case 2:10-cr-00109-RL-APR document 734 filed 01/10/13 page 3 of 5

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:

USDC IN/ND case 2:10-cr-00109-RL-APR document 734 filed 01/10/13 page 4 of 5

(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 .
4

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

(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

USDC IN/ND case 2:10-cr-00109-RL-APR document 743 filed 01/15/13 page 1 of 7


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA
Plaintiff
v.

Case Number 2:10cr109-022


USM Number 11905-027

ALEX GUERRERO
Defendant
KEVIN E MILNER
Defendants Attorney
___________________________________
JUDGMENT IN A CRIMINAL CASE
THE DEFENDANT pleaded guilty to counts 1, 2, 14 and 15 of the Third Superseding Indictment
on 8/2/2012.
ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offenses:
Date Offense
Ended

Count
Number

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

November 2011

21:846 - Conspiracy to Possess with Intent to Distribute and Distribute


5 Kilograms or More of Cocaine and 1000 Kilograms or More of a
Mixture and Substance Containing a Detectable Amount of Marijuana

November 2011

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 in


Relation to Crimes of Violence and Drug Trafficking.

November 2011

15

Title, Section & Nature of Offense

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is
imposed pursuant to the Sentencing Reform Act of 1984.
IT IS ORDERED that the defendant must notify the United States Attorney for this district within 30
days of any change of name, residence, or mailing address until all fines, restitution, costs and
special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the
defendant must notify the court and United States Attorney of any material change in economic
circumstances.

January 11, 2013


Date of Imposition of Judgment

/s/ Rudy Lozano


Signature of Judge

Rudy Lozano, United States District Judge


Name and Title of Judge

January 15, 2013


Date

USDC IN/ND case 2:10-cr-00109-RL-APR document 743 filed 01/15/13 page 2 of 7


Defendant: ALEX GUERRERO
Case Number: 2:10cr109-022

Page 2 of 7

IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons
to 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 be
served 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 drug
treatment 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 training
programs as available.

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

RETURN
I have executed this judgment as follows:
Defendant delivered
, with a certified copy of this judgment.

to

at

UNITED STATES MARSHAL

By:
DEPUTY UNITED STATES MARSHAL

USDC IN/ND case 2:10-cr-00109-RL-APR document 743 filed 01/15/13 page 3 of 7


Defendant: ALEX GUERRERO
Case Number: 2:10cr109-022

Page 3 of 7

SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of 5
years.
This period of supervision consists of 3 years for each of Counts 1, 14 and 15, and 5
years for Count 2, all to be served concurrently.
The defendant shall report in person to the probation office in the district to which the defendant
is 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 refrain
from any unlawful use of a controlled substance.
The defendant shall submit to one drug test within 15 days of release from imprisonment and
two (2) periodic drug tests thereafter, as determined by the Court.
The defendant shall not possess a firearm, ammunition, destructive device, or any other
dangerous 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 the
defendant pay in accordance with the Schedule of Payments sheet of this judgment.

USDC IN/ND case 2:10-cr-00109-RL-APR document 743 filed 01/15/13 page 4 of 7


Defendant: ALEX GUERRERO
Case Number: 2:10cr109-022

Page 4 of 7

STANDARD CONDITIONS OF SUPERVISION


1.

The defendant shall not leave the judicial district without the permission of the Court or
probation officer.

2.

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

3.

The defendant shall answer truthfully all inquiries by the probation officer and follow the
instructions 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 any
paraphernalia 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, and
shall not associate with any person convicted of a felony unless granted permission to
do so by the probation officer.

10.

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

11.

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

12.

The defendant shall not enter into any agreement to act as an informer or a special
agent 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 that
may be occasioned by the defendants criminal record or personal history or
characteristics, and shall permit the probation officer to make such notifications and to
confirm the defendants compliance with such notification requirement.

14.

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

15.

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 743 filed 01/15/13 page 5 of 7


Defendant: ALEX GUERRERO
Case Number: 2:10cr109-022

Page 5 of 7

SPECIAL CONDITIONS OF SUPERVISION


If not employed at a regularly lawful occupation, the defendant shall perform at least 30 hours of
community 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 and
directed 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, to
search at any time, with or without a warrant, by any law enforcement or probation officer with
reasonable suspicion concerning a violation of a condition of supervision or unlawful conduct by
the defendant.
The defendant shall not incur new credit charges or open additional lines of credit without the
approval of the probation officer unless the defendant is in compliance with the installment
payment schedule.
The defendant shall provide the probation officer with access to any requested financial
information.

USDC IN/ND case 2:10-cr-00109-RL-APR document 743 filed 01/15/13 page 6 of 7


Defendant: ALEX GUERRERO
Case Number: 2:10cr109-022

Page 6 of 7

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal monetary penalties in accordance
with 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 assessment
payment shall be due immediately.

FINE
No fine imposed.

RESTITUTION
No restitution was ordered.

USDC IN/ND case 2:10-cr-00109-RL-APR document 743 filed 01/15/13 page 7 of 7


Defendant: ALEX GUERRERO
Case Number: 2:10cr109-022

Page 7 of 7

Name:
Docket No.:

ALEX GUERRERO
2:10cr109-022

ACKNOWLEDGMENT OF SUPERVISION CONDITIONS

Upon a finding of a violation of probation or supervised release, I understand that the


Court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the
conditions of supervision.
I have reviewed the Judgment and Commitment Order in my case and the supervision
conditions therein. These conditions have been read to me. I fully understand the conditions
and have been provided a copy of them.

(Signed)
____________________________________
Defendant

__________________
Date

____________________________________

__________________

U.S. Probation Officer/Designated Witness

Date

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 1 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 2 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 3 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 4 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 5 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 6 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 7 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 8 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 9 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1108 filed 01/10/14 page 10 of 10

USDC IN/ND case 2:10-cr-00109-RL-APR document 1122 filed 03/31/14 page 1 of 8

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA
v.
ALEX GUERRERO

)
)
)
)
)

2:10 CR 109 RL
2:14 cv 11 RL

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.
1

USDC IN/ND case 2:10-cr-00109-RL-APR document 1122 filed 03/31/14 page 2 of 8

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
2

USDC IN/ND case 2:10-cr-00109-RL-APR document 1122 filed 03/31/14 page 3 of 8

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.
3

USDC IN/ND case 2:10-cr-00109-RL-APR document 1122 filed 03/31/14 page 4 of 8

[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
4

USDC IN/ND case 2:10-cr-00109-RL-APR document 1122 filed 03/31/14 page 5 of 8

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
5

USDC IN/ND case 2:10-cr-00109-RL-APR document 1122 filed 03/31/14 page 6 of 8

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.
6

USDC IN/ND case 2:10-cr-00109-RL-APR document 1122 filed 03/31/14 page 7 of 8

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 1122 filed 03/31/14 page 8 of 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

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 1 of 22

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ALEX GUERRERO
Defendant.

)
)
)
)
)
)
)
)
)

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

OPINION AND ORDER


This 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 WITH

PREJUDICE. The Clerk is ORDERED to distribute a 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.

Further, this Court declines to issue

Defendant a certificate of appealability.

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 2 of 22

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.
#501).

In it, Guerrero agreed to plead guilty to Count One, Two,

Fourteen, and Fifteen of the Third Superseding Indictment.


7).

(DE

(Id.,

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

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 3 of 22

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 4 of 22

read it previously, understood it, agreed with it, and was asking
the Court to approve it.
questions.

Guerrero answered yes to each of these

(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.
The

(Id. at 9-65).

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 the
government are in agreement pursuant to Title
18, United States Code, Section 3553, which
are factors that the Court has to consider,
and with regards to cooperation that youre
going to have in paragraphs 10 and 11, that a
proper sentence in this case would be 228
months; is that correct?
A:

Yes, Your Honor.

Q:

Mr. Guerrero, do you understand that this


is only a recommendation? Who makes the
final decision?
4

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 5 of 22

A:

You do, Your Honor.

Q:

And you understand that I may agree with


all of you. I may not. I may think your
sentence should be higher or lower. Do
you 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.


47).

(Id. at 46-

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.
guns.

(Id. at 50).

(Id.).

He admitted to robbing drugs, money and

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 6 of 22

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, if
the government proceeded to trial, we would
prove beyond a reasonable doubt that the Latin
Kings, including its associates, constituted
an enterprise as defined in the statute, a
group of individuals associated in fact. The
Latin
Kings
constituted
an
ongoing
organization whose members function as a
continuing unit for the common purpose of
achieving the objectives of the enterprise.
The enterprise was engaged in and its
activities affected interstate commerce.
From
roughly
2004
to
2006,
this
defendant, together with his Chicago Police
Department partner, Antonio Martinez, and
Sisto Bernal, who was one of the leaders of
the Latin Kings, and others knowingly and
intentionally
conspired
to
conduct
and
participate in the conduct of the affairs of
the Latin Kings through a pattern of
racketeering activity, here consisting of
multiple acts of Hobbs Act robberies and drug
trafficking.
More specifically, during the course of
the conspiracy, in the same time period, 20042006, this defendant, Mr. Guerrero, was
employed as a Chicago Police Department
officer on the south side of Chicago. He was
assigned to a tactical unit.
He would not
wear a police uniform. He would wear civilian
clothes or tactical gear and carry his
6

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 7 of 22

department issued gun, his badge and a


bulletproof vest and clothing that was marked
with the Chicago Police Department on it.
During this time period, his co-defendant,
Antonio Martinez, was his partner.
During the course of the conspiracy, this
defendant and his partner Martinez agreed to
commit and then did commit multiple Hobbs Act
robberies, sometimes referred to as drug rips,
on the street on behalf of Sisto Bernal, one
of the leaders of the Latin Kings.
They
committed these robberies while on the clock
while
working
for
the
Chicago
Police
Department during their duty shifts.
They
also did it off duty. They wore their badges
and vests and department-issued firearms,
drove their unmarked Chicago Police Department
cars.
Those robberies occurred both in
Chicago and the Northern District of Indiana.
In this district they were primarily in
Hammond and East Chicago.
During the course of these robberies,
this defendant and his partner pretended that
they were doing legitimate traffic stops on
duty and search warrants and searches on duty
and in their capacity as police officers, but
what they were really doing was looking for
drugs, guns and money to turn over to Sisto
Bernal and the Latin Kings back in Chicago.
These robberies include, but arent limited
to, an event between 2004 and 2006 where this
defendant and his partner and Sisto Bernal and
another individual drove from Chicago to a
warehouse around Rockford, Illinois, that was
being used to store marijuana.
There, this
defendant and his partner, they were in
tactical gear with their badges and firearms
marked as Chicago police officers. At Sisto
Bernals direction, they broke into the
warehouse and stole a large amount of
marijuana. They turned it over to Bernal and
were paid approximately $2,000 each for this.
There was another event between 2004 and
2006
where
Sisto
Bernal
directed
this
defendant and his partner to make a traffic
stop on a female driver who was transporting
marijuana from Mexico up to Chicago.
They
were in their Chicago Police Department car.
They had their badges on, their department7

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 8 of 22

issued firearms. They did this traffic stop


posing or pretending like they were doing a
legitimate police traffic stop. They released
the female driver.
They held on to her
minivan. They tore it up and located between
90 and 100 pounds of marijuana, which they
turned over to Sisto Bernal.
During the same time period, 2004 to
2006, Sisto Bernal directed this defendant and
his partner to the residence of a drug
trafficker in East Chicago, Indiana, in the
Northern District of Indiana, obviously
outside of their jurisdiction as Chicago
police officers. Again, under the guise of a
legitimate police investigation, they posed as
police officers. They had their badges, their
guns, marked as Chicago police officers. And
they took between $20,000 and $25,000 of drug
money and turned it over to Sisto Bernal, and
they were paid 3 to $4,000 each for this.
During
all
these
events
that
Im
discussing today, there were never any
arrests, no paperwork was ever turned in and
no evidence was ever turned in to the Chicago
Police Department.
There was another event between 2004 and
2006 in the City of Chicago where these two
defendants were sent by Sisto Bernal.
They
were sent by a man, Hiluterio Chaves, also
known as Zeus or Tails. He was a Latin King.
They did another Hobbs Act robbery, this time,
again, they were in Chicago uniforms - strike
that - - Chicago police tactical gear, wearing
their badges, their guns, marked as police
officers. Again, they were under the guise of
a legitimate police investigation. This time
they took a Latin King, Hiluterio Chavez, with
them who posed as a police officer between the
course of this. And they stole between 20 and
$40,000 in drug proceeds and turned it over to
Sisto Bernal. Each were paid 5 to $6,000 for
this.
In October of 2005, there was another
search they did, another drug rip they did
here in Hammond, Indiana, not far from this
courthouse, on Harrison Avenue. There, during
that search, they were sent by Sisto Bernal
again, driving a police car, wearing badges
and their department-issued guns and marked as
8

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 9 of 22

police officers.
They took two Glock brand
pistols that the resident legally owned and
turned those over to Sisto Bernal.
One of
those guns turned up during a traffic stop in
Nebraska a time later.
Then, in December 2006, there was another
Hobbs Act robbery they conducted. That was at
the residence of James Walsh, also known as
Jim Bob.
He was a leader of the Latin
Dragons. He was one of the individuals killed
at the Sopranos Restaurant in Griffith.
Thats also part of the indictment.
There,
again, they are driving a tactical car. They
have badges.
They have their vests.
They
have their department-issued guns. They went
inside. They tied people up, and they stole
firearms and some currency and some narcotics
and turned it over to Sisto Bernal.
During all these events, he and his
partner are armed. During all these events,
they abused a position of power. During some
of these events, people were physically
restrained and tied up, and they wore their
tactical ballistic vests during all these.
Turning
to
Count
Two,
the
drug
conspiracy, it is basically the same set of
facts.
They
were
stealing
drugs,
predominately cocaine, and turning it over to
Sisto Bernal, the leader - - or one of the
leaders of the Latin Kings. Through Pinkerton
liability, they are liable for over 150 kilos
or more of cocaine and a thousand kilos or
more of marijuana, and these amounts were
foreseeable to this defendant.
Turning to Count 14 and 15, its the same
set of facts that I mentioned earlier,
discussing
the
robbery,
the
Hobbs
Act
robberies in December of 2006. There was a
residence 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 this
residence and took the things that I mentioned
before.
In Count 15 well, strike that.
Moving backwards, as far as interstate
commerce, they took narcotics that would have
traveled in interstate commerce.
They took
drugs which would have traveled and affected
9

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 10 of 22

interstate commerce.
Further than that, as I mentioned, Mr.
Walsh was a leader of the Latin Dragons. That
is an organization that operates both in
Indiana and in Illinois, and they are an
organization
that
affected
interstate
commerce.
As far as the 924(c) count in Count 15,
thats the same set of facts.
He had a
firearm, his department-issued firearm while
doing 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:

A:
Q:
A:
Q:
A:

Mr. Guerrero, did you listen and pay


close attention to the governments
summary of facts constituting the crime
charged?
Yes, Your Honor.
Do you agree with the governments
summary of facts?
Yes, Your Honor.
Any part of it you disagree with?
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

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 11 of 22

that the defendant, Alex Guerrero, is fully


competent and capable of entering an informed
plea and that his plea of guilty to the
charges contained in Counts 1, 2, 14, and 15
of the third superseding indictment is a
knowing and voluntary plea supported by an
independent basis in fact containing each of
the 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 of
effective 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).

11

The Government filed a

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 12 of 22

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."
812, 816 (7th Cir. 1996).

Prewitt v. United States, 83 F.3d

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.
A

section

2255

Id.
motion

is

recapitulation of a direct appeal.

neither

substitute

for

nor

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).
result:
[T]here are three types of issues that a
section 2255 motion cannot raise: (1) issues
that were raised on direct appeal, absent a
showing
of
changed
circumstances;
(2)
nonconstitutional issues that could have been
but were not raised on direct appeal; and (3)
constitutional issues that were not raised on
direct appeal, unless the section 2255
petitioner
demonstrates
cause
for
the
procedural default as well as actual prejudice
from the failure to appeal.
12

As a

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 13 of 22

Belford, 975 F.2d at 313.

Additionally, aside from demonstrating

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


errors

on

direct

appeal,

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

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 to


pro se pleadings "means that if the court can
reasonably read the pleadings to state a valid
claim on which the [petitioner] could prevail,
it should do so despite the [petitioner's]
failure to cite proper legal authority, his
confusion of various legal theories, his poor
syntax and sentence construction, or his
unfamiliarity with pleading requirements."

13

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 14 of 22

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.


14

Regarding the

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 15 of 22

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.


U.S. at 690.

If one prong is not satisfied, it is unnecessary to

reach the merits of the second prong.


The

Strickland, 466

Seventh

Circuit

has

held

Id. at 697.
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.
(7th Cir. 2005).

Canaan v. McBride, 395 F.3d 376, 385-86

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 my


case that I had committed no crime, my only
connection to this case was through my Chicago
Illinois
police
patrol
partner
Antonio
Martinez who had a connection with the Latin
King street gang.
At no time did Antonio
Martinez alert me to any illegal activities.
My attorney led me to believe that after
investigating this case I had nothing to worry
about that I would be cleared.

15

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 16 of 22

(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.

Furthermore, [w]hen a district court conducts a Rule 11 colloquy, it


is not putting on a show for the defendant, the public, or anybody else. The
purpose of a Rule 11 colloquy is to expose coercion or mistake, and the
district judge must be able to rely on the defendant's sworn testimony at that
hearing. Because the court takes a criminal defendant's rights at a
change-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 is
normally bound by the representations he makes to a court during the
colloquy. Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010)
(internal quotation marks and citations omitted).

16

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 17 of 22

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

consequences of the plea.

nature

of

the

charge

(DE #1108 at 4).

and

the

He explains as

follows:
I plead guilty because my attorney told me
that there was over whelming [sic] evidence
against me including, a gun, which was the
firearm that I carry as a part of my duty as a
Police Officer not to use as a part of any
illegal
activities,
alleged
phone
conversations that led to Mexico that the
government claimed were illegal activities.
These phone calls were my wifes relatives
whom she call [sic] periodically to check [on]
their welfare. I had no knowledge of these
phone 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.
unpersuasive.

His

current

statements

to

the

contrary

are

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

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 18 of 22

I was told by my attorney that the prosecution


delayed giving my attorney information that
would [have] proven my innocence and or was
favorable to my case. Please refer to my PCR.
Please see attachment.
(Id.).
It is not clear what portion of the PCR (presumably the Presentence 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.
evidence

Even now, Guerrero does not tell the Court what

was

allegedly

produced

late,

or

allegedly would have proven his innocence.


not enough.

how

that

evidence

Vague assertions are

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 in


the eye of the media who was bias and
judgmental against me for being a Chicago
Police Officer who are held to a higher
standard. At the time of my court appearance
I was already judged guilty, my name was
slandered,
my
association
with
Antonio
Martinez made me look guilty. My police union
they ask me to sign papers that I thought were
18

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 19 of 22

to help me receive representation they turned


out to be dismissal papers. I was told that I
was no longer a part of them. I have fellow
officers in the Chicago Police Department that
want to come forward but could not for fear of
losing 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.
proceeded to a jury trial.
include

any

facts

which

Indeed, this case never

As a result, this claim does not


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 upon


speculation and careless recommendations from
his trial counsel. Most significant was the
representation by counsel that Guerrero could
possibly face life in prison if he lost at
trial.
(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

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 20 of 22

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. I
was told by my attorney that if I filed an
appeal I would receive a life sentence. I was
told that there would be repercussions.
My
attorney would not turn over all of the
documents to my case so that I can properly
file 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.

20

Id.

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 21 of 22

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
applicant.

when

it

enters

final

order

adverse

to

the

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.
for

determination

that

reasonable

21

The Court finds no basis


jurists

would

find

this

USDC IN/ND case 2:10-cr-00109-RL-APR document 1214 filed 06/22/15 page 22 of 22

decision

debatable

or

incorrect

encouragement to proceed further.

or

that

the

issues

deserve

Therefore, a certificate of

appealability will not be issued.

CONCLUSION
For the aforementioned reasons, Defendants section 2255
motion is DENIED.
PREJUDICE.

The Clerk is ORDERED to DISMISS this case WITH

Further, this Court declines to issue Defendant a

certificate of appealability.

The Clerk is ORDERED to distribute

a 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, Judge


United States District Court

22