Carrasco v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
GILBERT JOSEPH CARRASCO,
Petitioner,
v. Civil Case 2:25-CV-067-Z
(Criminal Case 2:21-CR-046-Z-BR-1)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER DENYING
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Petitioner Gilbert Joseph Carrasco (“Carrasco”) filed a motion to vacate, set aside, or
correct sentence under 28 U.S.C. Section 2255 by a person in federal custody. ECF Nos. 2,
10. Having considered Carrasco’s amended motion and the response thereto, the record, and
applicable authorities, the Court hereby DENIES the amended motion for the reasons stated
below.
BACKGROUND
The record in Carrasco’s underlying criminal case, No. 2:21-CR-046-Z-BR-1 (the “CR”),
shows the following:
On June 24, 2021, Carrasco was named in a three-count indictment charging him in
Count One with conspiracy to distribute and possession with intent to distribute
methamphetamine in violation of 21 U.S.C. Section 846; in Count Two with possession with
intent to distribute methamphetamine in violation of 21 U.S.C. Sections 841(a)(1) and
841(b)(1)(C); and in Count Three with being a convicted felon in possession of a firearm, in
violation of 18 U.S.C. Sections 922(g)(1) and 924(a)(2). CR ECF No. 3. On August 31, 2022,
after a two-day jury trial, Carrasco was found guilty on all counts. CR ECF No. 57.
The probation officer then prepared a presentence report (“PSR”), showing that
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Carrasco’s criminal history was Category VI and his total offense level was 38. CR ECF No.
61-1 { 37, 63. Carrasco’s sentencing guideline range was 360 to 600 months. Id. J 90-91.
On December 21, 2022, the Court sentenced Carrasco to a term of imprisonment of 600
months (240 months on Count I, 240 on Count 2, and 120 months on Count 3, all to run
consecutively). CR ECF No. 70. Carrasco filed a direct appeal. The Fifth Circuit Court of
Appeals affirmed the judgment on January 23, 2024. CR ECF No. 88.
On March 13, 2025, Carrasco timely filed his motion to vacate. CR ECF No. 92 at 9;
ECF No. 2 at 9. Carrasco subsequently obtained counsel, who filed an amended motion on
April 25, 2025. ECF No. 10. The government responded, alleging that Carrasco’s request for
relief is meritless and should be denied. ECF No. 11.!
STANDARD OF REVIEW
After conviction and exhaustion or waiver of a defendant’s right to appeal, courts are
entitled to presume that the defendant stands fairly and finally convicted. United States v.
Frady, 456 U.S. 152, 164-165 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir.
1991) (same). A defendant can challenge his conviction or sentence after it is presumed final
only on issues of constitutional or jurisdictional magnitude, and may not raise an issue for
the first time on collateral review without showing both cause for his procedural default and
actual prejudice resulting from the errors. Id. at 232.
Section 2255 does not offer recourse to all who suffer trial errors. “[A]n error that may
justify reversal on direct appeal will not necessarily support a collateral attack on a final
judgment.” United States v. Addonizio, 442 U.S. 178, 184 (1979). Section 2255 is reserved for
10n November 24, 2025, Carrasco filed a pro se motion for leave to file a reply brief, which the Court
denied because Carrasco is represented by counsel. ECF Nos. 16, 19. Nevertheless, on January 6, 2026,
Carrasco filed his pro se reply brief, which the Court disregards and orders stricken herein because
Carrasco did not obtain leave of court to file an untimely brief, nor did he obtain leave to file the brief
pro se while represented by counsel.
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transgressions of constitutional rights and other narrow injuries that could not have been
raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.
United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other words, a
writ of habeas corpus will not be allowed to do service for an appeal. Davis v. United States,
417 US. 333, 345 (1974); United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Further,
if issues are raised and considered on direct appeal, a defendant is thereafter precluded from
urging the same issues in a later collateral attack. Moore v. United States, 598 F.2d 439, 441
(5th Cir. 1979) (citing Buckelew v. United States, 575 F.2d 515, 517-18 (5th Cir. 1978)).
Section 2255 motions do not automatically require a hearing. United States v. Hughes,
635 F.2d 449, 451 (5th Cir. Unit B Jan. 1981); see also Rule 8 of the Rules Governing Section
2255 Proceedings. “When the files and records of a case make manifest the lack of merit of a
Section 2255 claim, the trial court is not required to hold an evidentiary hearing.” Hughes,
635 F.2d at 451. A prisoner is not entitled to an evidentiary hearing unless he or she “presents
‘independent indicia of the likely merit of [his] allegations.” United States v. Reed, 719 F.3d
369, 373 (5th Cir. 2013). The Court has reviewed the record and coneluded that an
evidentiary hearing is not necessary because the record categorically ref\ites Carrasco’s
claims, as set forth below.
ANALYSIS
To prevail on an ineffective assistance of counsel claim, a movant must show that (1)
counsel’s performance fell below an objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“[A] court need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id.; see also
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United States v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000) (“Failure to meet either the
deficient performance prong or the prejudice prong will defeat a claim for ineffective
assistance of counsel.”). Simply making conclusory allegations of deficient performance and
prejudice is not sufficient to meet the Strickland test. Miller v. Johnson, 200 F.3d 274, 282
(5th Cir. 2000).
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371 (2010). The likelihood of a different result “must be substantial, not just
conceivable,” Harrington v. Richter, 562 U.S. 86, 112 (2011), and a movant must prove that
counsel’s errors “so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Cullen v. Pinholster, 563 U.S. 170,
189 (2011) (quoting Strickland, 466 U.S. at 686). Judicial scrutiny of this type of claim must
be highly deferential and the movant must overcome a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance. Strickland, 466
U.S. at 689. Carrasco alleges that counsel was ineffective on two grounds: (1) advising him
to go to trial rather than accepting a plea offer, and (2) failing to provide the Court with a
written memorandum or witnesses at sentencing as to Carrasco’s past trauma being a
possible mitigating factor.
I. Advice Regarding Plea Offer
Carrasco first alleges that counsel was deficient by encouraging him to go to trial
instead of accepting a plea offer. Specifically, he states that counsel advised him that his co-
defendant Catrina Palmer (“Palmer”) had died, so his chances of success at trial were high
because (1) the government would have no corroborating testimony; and (2) Carrasco would
not need to testify to rebut any testimony since there would be no co-defendant testimony to
rebut. ECF No. 10 at 3. This advice led Carrasco to reject two plea offers, one for 120 months
and one for 240 months. ECF No. 2 at 6. At the pretrial conference on August 25, 2022, the
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government put both plea offers—and Carrasco’s declination of both—on the record. CR ECF
No. 77 at 61-64. The first offer, made on July 12, 2022, was of a ten-year sentence cap in
exchange for a guilty plea as to Count Three. Jd. at 62. Carrasco declined the first offer. Id.
at 62-63. The government then offered to ask the Court for a 20-year sentence cap in exchange
for a guilty plea on either of Count One or Count Two. Id. at 64. Carrasco declined the second
offer as well. Id.
Carrasco alleges in his motion that counsel misled him about the government’s case
against him. He claims that, despite counsel’s representations to the contrary, Palmer
actually was not dead and, in fact, testified against him at trial. ECF No. 10 at 3. Carrasco
states that his attorney had not prepared him to testify in order to rebut Palmer’s testimony
and, as a result, Carrasco was convicted and sentenced to 600 months. Jd. Had Carrasco
known that Palmer was not dead and would be testifying, he contends, he would have taken
one of the plea deals offered. Id.
However, Carrasco provides no evidence of Palmer actually testifying at his trial, nor
does the court record show any testimony by Palmer. Palmer is not on the government's
witness list, nor is any testimony by Palmer included in the trial transcript. See CR ECF Nos.
34, 79, 80. Because Palmer did not testify at trial, Carrasco’s counsel was not deficient in
telling him that she would not testify, and Carrasco was not prejudiced by counsel's
statement. See Blackledge v. Allison, 431 U.S. 68, 74 (1977) (“The subsequent presentation
of conclusory allegations unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.”). Accordingly, Carrasco is
not entitled to relief on this claim.
II. Mitigation Evidence
Carrasco next alleges that counsel was ineffective for failing to advise the court of his
relevant trauma and social history at sentencing. ECF No. 10 at 5. Carrasco acknowledges,
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however, that counsel “mentioned” his trauma history at the sentencing hearing, but
complains that counsel provided no witnesses, records or expert testimony to support his
position that Carrasco was entitled to a lower sentence due to such history. Jd.
At Carrasco’s sentencing hearing, counsel pointed out his trauma history as outlined
in detail in the PSR, arguing that that “at a very young age, [Carrasco] was sexually abused
by family,” including being molested by his uncle’s girlfriend until he was fifteen. See CR
ECF No. 81 at 13-14. Counsel also stated that Carrasco never told anyone about his abuse
and “carried this burden and never received proper treatment.” Jd. at 14. Finally, counsel
told the court that Carrasco was “in a bad place emotionally [and] psychologically,” which he
noted “certainly does not excuse [his] behavior, but it explains [his] behavior.” Id. Lastly, he
asked the Court “to consider the impacts the abuse and the addiction had on this man and
the fact that he was basically left to fend for himself after he got to adulthood.” Jd.
The fact that counsel made the argument orally rather than in writing does not render
counsel inefficient. Carrasco fails to cite authority in support of his argument that a written
sentencing memorandum is required. Indeed, at least two courts have recognized that no
such requirement exists. See Plata-Ybarra v. United States, No. 4:23-CR-004-O, 2025 WL
1170317, at *4 (N.D. Tex. Apr. 22, 2025) (O’Connor, C.J.) (“Counsel had no obligation to file
a sentencing memorandum.”); United States v. Brito, No. C-07-398, 2009 WL, 4058997 at *5
(S.D. Tex. Nov. 20, 2009) (“There is no requirement . . . that a defendant file a written
sentencing memorandum prior to sentencing.”). Similarly, counsel was under no obligation
to call witnesses to discuss Carrasco’s trauma history. The PSR sufficiently details Carrasco’s
history of sexual abuse and drug use. CR ECF No. 61-1 9{ 79-82. Reasonable strategic
choices, such as how to present an argument at sentencing, are an essential part of advocacy
and do not indicate deficient representation or ineffective assistance. See Strickland, 466 U.S.
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at 680-681. Carrasco has not shown that his counsel was deficient at sentencing.
Nor was Carrasco prejudiced by counsel’s decision to not call witnesses or provide a
written sentencing memorandum. As previously noted, the PSR recounted Carrasco’s
“trauma and social history” including his sexual abuse as a child and drug abuse beginning
in his twenties. CR ECF No. 61-1 4 79-82. In fact, the Court noted on the record that it “did
give... significant consideration and mitigating weight” to Carrasco’s mitigating factors
including that the fact that he “suffered [from abuse] at a young age” as reflected in the PSR.
CR ECF No. 81 at 23. Nevertheless, the Court stated that the 600-month sentence was
justified based on Carrasco’s extensive criminal history, the nature and circumstances of the
offense, the need to promote respect for the law, the need to afford adequate deterrence of
criminal conduct, and the need to protect the public from further crimes. Jd. at 21-23.
Carrasco was not prejudiced by counsel’s conduct at sentencing. In addition, Carrasco was
not prejudiced because the Court at sentencing made it clear that even if the guidelines were
incorrect, it would have still imposed the same sentence under the Section 8553(a) factors.
CR ECF No. 81 at 24. Carrasco’s ineffective assistance of counsel claim is meritless.
CONCLUSION
For the reasons stated above, Carrasco’s reply brief (ECF No. 20) is STRICKEN and
his motion to vacate (ECF Nos. 2, 10) is DENIED with prejudice.
SO ORDERED. Lp
January 27 2026
MATYHEW J. KACSMARYK
UNITED STATES DISTRICT JUDGE
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