USA v. Perez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v. 	Case No. 22-CR-40054-EFM
Case No. 25-CV-04100-EFM
ADALBERTO SANTOS PEREZ,
Defendant-Petitioner.
MEMORANDUM AND ORDER
Before the Court is pro se Defendant-Petitioner Adalberto Santos Perez’s Motion to
Vacate, Set Aside, or Correct the Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 114). Perez argues
his counsel provided constitutionally ineffective assistance throughout the course of his sentencing
proceedings. The Government opposes Perez’s Motion. For the reasons stated below, the Court
denies Perez’s Motion in part without an evidentiary hearing. But the Court determines an
evidentiary hearing is necessary before the Court can rule fully on Perez’s ineffective assistance
claim regarding the two-level importation enhancement the Court assessed against him under
U.S.S.G. § 2D1.1(b)(5).
I. 	Factual and Procedural Background
Perez’s case began when he was charged by complaint for drug conspiracy alongside his
co-defendant, Oscar David Ibarra Tapia (“CD3”), on August 23, 2022. Counsel Adam Hall
represented Perez throughout the course of his case.
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On May 31, 2023, Perez pled guilty to Count 1 of the Superseding Information against
him—possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).
As part of his plea agreement, Perez agreed to the following set of facts:
On August 21, 2022, Deputy Andrew Toolin, Dickinson County, Kansas Sheriff’s
Office, conducted a lawful traffic stop in Dickinson County, Kanas. CD3 was
ultimately arrested. A lawful search incident to this lawful arrest yielded three
pounds of methamphetamine.
CD3 	identified 	Perez 	as 	the 	intended 	recipient 	of 	the 	three 	pounds 	of
methamphetamine. He/she said that Perez had asked him/her if he/she wanted to
make $4,000 by driving to Denver, Colorado to pick up three pounds of
methamphetamine and transporting it back to Kansas City, Kansas. CD3 had agreed
and stated that he/she was on his/her way to deliver the methamphetamine to Perez
when he was stopped by law enforcement.
Between August 21 and August 22, law enforcement worked with CD3 to set a
controlled delivery of sham methamphetamine to Perez. Law enforcement directed
CD3 to contact Perez to set the delivery by informing Perez that his/her car was
having trouble. Law enforcement staged CD3’s car in the parking lot of the
Hollywood Casino in Wyandotte County, Kansas. CD3 contacted Perez to let him
know where the car was located. Perez responded by confirming that he would
come, possibly to tow the car.
At around 5:00 p.m. on August 22, Perez arrived at the Hollywood Casino in his
tow truck. Unbeknownst to him, law enforcement was in position waiting for him.
As Perez approached the passenger side of the car, law enforcement swarmed Perez
and detained him. A search of Perez’s person by law enforcement yielded a cell
phone. Law enforcement approached Perez and asked him the number of the cell
phone that was found on his person. Perez told them the number. This was the same
number that CD3 had been calling and texting while working with law enforcement
to set up the controlled delivery.
Post-arrest and post-Miranda, Perez admitted that he sold methamphetamine to one
person 	(CD1) 	and 	he 	also 	admitted 	to 	dealing 	to 	another 	person 	(CD2).
Unbeknownst to Perez, CD1 had previously informed the Drug Enforcement
Administration (DEA) that he/she would purchase one (1) pound quantities of
methamphetamine from Perez for $5,000, and that he/she was able to meet with
Perez at Perez's residence. CD1 informed DEA that he/she observed pound package
quantities of methamphetamine filling an area described by CD1 as 3’ x 6’ and
packages of fentanyl equal to 400 kilograms of heroin. CD1 further stated that each
kilogram of fentanyl had a 400 stamp, which would have the same potency of 400
kilograms of heroin, and that CD1 would then break the fentanyl down at a 1/400
ratio. CD1 stated that she/he purchased a conservative amount of 300 - 500 pounds
of methamphetamine from Perez from July 2021 through December 2021.
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Further unbeknownst to Perez, CD2 had informed DEA that prior to her/his arrest
Perez brought CD2 two (2) pounds of methamphetamine. CD2 purchased one (1)
pound of methamphetamine from Perez for $6000 and Perez fronted CD2 the other
pound of methamphetamine. CD2 also told DEA that she/he then began to purchase
methamphetamine from Perez on a weekly basis, in amounts of between seven (7)
and eight (8) kilograms or seven (7) to eight (8) pounds of methamphetamine. CD2
stated that the weights varied between kilograms and pounds, based upon how
Perez would have the methamphetamine packaged. CD2 stated that after he/she
purchased methamphetamine from Perez for a month, Perez began to bring fentanyl
pills for CD2 to purchase. CD2 stated that on the first occasion, Perez brought 1,000
pills. Thereafter, CD2 purchased 5,000 pill quantities. CD2 stated that he/she would
purchase the fentanyl pills every other week. CD2 stated that he/she could not sell
the fentanyl pills as fast as the methamphetamine.
A 	forensic 	chemist 	with 	the 	DEA 	North 	Central 	Laboratory 	subsequently
determined that the suspected narcotics seized from CD3 on August 21, 2022,
consisted of a net weight of 1,351.4 grams of methamphetamine actual.
Prior to Perez’s sentencing hearing, the United States Probation Office prepared a
Presentence Investigation Report (“PSR”). Perez’s counsel and the Government made objections
to the PSR, and Perez’s counsel filed a Sentencing Memorandum with the Court. The Court held
a sentencing hearing on January 18, 2024. After hearing counsels’ arguments and evidence, the
Court assessed a two-level enhancement against Perez under U.S.S.G. § 3B1.1(c) and a two-level
enhancement under § 2D1.1(b)(5). The Court sentenced Perez to 225 months’ imprisonment
followed by a five-year term of supervised release.
Perez timely filed the instant Motion to Vacate on October 14, 2025. The Government filed
a Response, to which Perez did not reply.
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II. 	Legal Standards
Under 28 U.S.C. § 2255(a),
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
According to Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States District
Courts,
The judge who receives the motion must promptly examine it. If it plainly appears
from the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must dismiss the motion . . . . If the
motion is not dismissed, the judge must order the United States attorney to file an
answer, motion, or other response within a fixed time, or to take other action the
judge may order.
The court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief.”1 The petitioner
must allege facts that, if proven, would warrant relief from his conviction or sentence.2 An
evidentiary hearing is not necessary where a § 2255 motion contains factual allegations that are
contradicted by the record, inherently incredible, or when they are conclusions rather than
statements of fact.3
1 28 U.S.C. § 2255(b).
2 See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995), overruled in part on other grounds by Daniels
v. United States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001).
3 See id. (stating that “the allegations must be specific and particularized, not general or conclusory”); see
also United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (rejecting ineffective assistance of counsel claims
that were merely conclusory in nature and without supporting factual averments).
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Because Perez proceeds pro se, the Court holds his pleadings to “less stringent standards
than formal pleadings drafted by lawyers.”4 A pro se litigant is entitled to a liberal construction of
his pleadings.5 But it is not the proper role of a district court to “assume the role of advocate for
the pro se litigant.”6
III. 	Analysis
Perez asserts that he is entitled to relief based on his counsel’s ineffectiveness. “The Sixth
Amendment guarantees criminal defendants the right to effective assistance of counsel at all
critical stages of the criminal proceedings,” including sentencing.7 To succeed on an ineffective
assistance of counsel claim, Perez must meet the two-prong test set forth in Strickland v.
Washington.8 Under Strickland, a defendant must show (1) his counsel’s representation was
constitutionally deficient because it fell below an objective standard of reasonableness, and (2) the
deficiency prejudiced him because it deprived him of the right to a fair trial.9
To prevail on the first prong, a defendant must demonstrate his counsel’s omissions fell
“outside the wide range of professionally competent assistance.”10 This standard is “highly
demanding.” 11 Counsel’s strategic or tactical decisions are presumed correct, unless they were
4 Haines v. Kerner, 404 U.S. 519, 520 (1972).
5 See Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (“Because Mr. Trackwell appears pro
se, we review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by
attorneys.”).
6 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
7 United States v. Orduno-Ramirez, 61 F.4th 1263, 1267 (10th Cir. 2023) (citations and quotation marks
omitted).
8 466 U.S. 668 (1984)
9 Id. at 687.
10 Id. at 690.
11 Kimmelman v. Morrison, 477 U.S. 365. 382 (1986).
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“completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible
defense strategy.”12 The reasonableness of the challenged conduct must be evaluated from
counsel’s perspective at the time of the alleged error.13 “[E]very effort should be made to
‘eliminate the distorting effects of hindsight.’”14
To prevail on the second prong, a defendant must “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.”15 The court must determine “whether counsel’s deficient performance render[ed]
the result of the trial unreliable or the proceeding fundamentally unfair.”16 Courts reviewing an
attorney’s performance must exercise deference, as “counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable professional
judgment.”17 A failure to prove one of the Strickland prongs is dispositive, and a court may dispose
of either the first or second prong, whichever is easier to resolve.18
Perez argues his counsel rendered ineffective service on four grounds throughout the
course of his sentencing proceedings. The Court has reviewed Perez’s grounds for § 2255 relief
and the record in this case. As the Court first explains, most of Perez’s arguments are foreclosed
by the record and are accordingly denied without an evidentiary hearing. The Court then explains
which ground requires an evidentiary hearing and instructs the parties on future proceedings.
12 Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (quoting Hatch, 58 F.3d at 1459) (alteration in original).
13 See Edens v. Hannigan, 87 F.3d 1109, 1114 (10th Cir. 1996) (citing Strickland, 466 U.S. at 689).
14 Id. (quoting Strickland, 466 U.S. at 689).
15 Strickland, 466 U.S. at 694.
16 Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citation omitted).
17 Strickland, 466 U.S. at 690.
18 United States v. Orange, 447 F.3d 792, 796–97 (10th Cir. 2006) (citations omitted).
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A. 	Grounds Not Requiring an Evidentiary Hearing
In three of Perez’s four grounds arguing his counsel rendered ineffective assistance, the
record conclusively shows that Perez is not entitled to relief such that an evidentiary hearing is
unnecessary.19 The Court addresses these grounds in turn.
1. 	Leadership Enhancement
First, Perez argues his counsel was ineffective by failing to challenge the Court’s
assessment of a two-level enhancement under U.S.S.G. § 3B1.1(c) on the basis that Perez was an
organizer, leader, manager, or supervisor of the criminal activity. The PSR recommended this two-
level enhancement based on statements made by CD1, CD2, and CD3 indicating Perez’s
managerial and leadership role within the drug trafficking operation.20 Perez maintains he was
merely a “middleman,” and faults his counsel for failing to argue as such.
While counsel may not have used the term “middleman” to describe Perez, counsel made
several arguments throughout Perez’s sentencing proceedings asserting he was not an organizer,
leader, manager, or supervisor. Counsel first did so in the PSR when responding to the
Government’s objection requesting a four-level enhancement instead of a two-level enhancement
based on Perez’s role.21 Perez notes his counsel’s response but seemingly argues counsel’s failure
to include this argument as its own objection in the PSR waived the dispute entirely.22
19 See 28 U.S.C. § 2255(b).
20 Doc. 88 at 22–23, ¶¶ 119–21.
21 Doc. 88 at 22, ¶¶ 116–18.
22 See Doc. 114 at 7 (arguing “[w]hen counsel finally contested the 2-level enhancement in the Sentencing
Memorandum, it was too little and too late”) (citing United States v. West, 550 F.3d 952, 957 n.3 (10th Cir. 2008) (“If
a defendant fails to make such an objection, we will deem him to have waived any dispute regarding the facts set forth
in the PSR.”)).
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The Court, however, did not consider the dispute waived. And counsel continued to argue
the issue throughout the sentencing proceedings. Counsel specifically objected to the two-level
enhancement in the Sentencing Memorandum arguing that Perez was “merely a supplier” to CD1
and CD2, and was only “reactive” to CD3’s texts concerning the Denver trip.23 At the sentencing
hearing, counsel summarized the texts he relied on to argue that Perez did not display the
leadership or control contemplated by the role enhancement.24 The Court considered all of
counsel’s 	arguments 	to 	determine 	whether 	a 	leadership 	enhancement 	was 	appropriate.
Accordingly, Perez cannot establish prejudice in his counsel’s failure to include this argument as
an objection in the PSR itself, and his contention that counsel ineffectively failed (in terms of the
Sixth Amendment) to argue he was a “middleman” is incorrect.
Perez also argues his counsel was ineffective for failing to argue that his relationship with
CD1 and CD2 was immaterial to assessing a role enhancement against him. Perez argues these
dealings are irrelevant because he did not plead guilty to a conspiracy, and neither CD1 nor CD2
were charged in connection with his case. A role enhancement, however, is not limited to the
offense of conviction, nor is it contingent on whether others are charged in connection with the
case.25 A role enhancement may also be assessed based on Perez’s relevant conduct, including
actions “that were part of the same course or conduct or plan as the offense of conviction.”26
Perez’s dealings with CD1 and CD2 were part of the same course or conduct of his conviction of
23 Doc. 90 at 9–10.
24 Doc. 108 at 8–9.
25 See U.S.S.G. § 3B1.1 intro. cmt. (“The determination of a defendant’s role in the offense is to be made on
the basis of all conduct within the scope of § 1B1.3 . . . and not solely on the basis of elements and acts cited in the
count of conviction.”).
26 U.S.S.G. § 1B1.3(a)(2). Because Perez’s base offense level guideline was contained in § 2D1.1, the
relevant conduct defined in § 1B1.3(a)(2) applies. Doc. 88 at 9, ¶ 31; U.S.S.G. § 3D1.2(d).
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possession with intent to distribute, and thus fall within the relevant conduct the Court could
consider in assessing the enhancement. Had counsel made arguments to the contrary, the Court
would have overruled them for lack of merit. Accordingly, counsel’s failure to raise this argument
was not prejudicial.27
Perez cannot show that his counsel’s omissions regarding the two-level leadership
enhancement prejudiced his defense. Accordingly, his claim of ineffective assistance on this
ground fails under Strickland.
2. 	Sentence Disparity
Perez also argues his counsel was ineffective because his sentence is disproportionate
compared to others involved in the facts underlying this case. Perez notes his co-defendant, CD3,
similarly pled guilty to possession with intent to distribute methamphetamine in violation of 21
U.S.C. § 841(a)(1), but was sentenced to 60 months’ imprisonment despite having more criminal
history than Perez. Additionally, Perez notes CD1 received a 100-month sentence despite
admitting to distributing significantly more drugs than him. Perez further argues that unless CD2’s
sentence is significantly more than his, there would also be unwarranted disparity between the two
because CD2 also admitted to distributing more drugs than him.
The resulting disparity between Perez’s sentences and others, however, is not a product of
ineffective assistance of counsel. First, counsel made a disparity argument between Perez’s and
CD3’s sentences. In the Sentencing Memorandum, counsel argued Perez’s good character and
specifically argued that the Court should impose a sentence “that avoids creating an unwarranted
27 Orange, 447 F.3d at 797 (“If [an] omitted issue is without merit, then counsel’s failure to raise it is not
prejudicial, and thus is not ineffective assistance.”).
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disparity between his sentence and others.’”28 Counsel then observed CD3 received a 60-month
sentence, despite having more significant criminal history than Perez.29 Because counsel argued
for a downward variance to avoid unwarranted sentence disparity between Perez and CD3, counsel
did not perform deficiently.
While counsel did not make a sentencing disparity argument between Perez, CD1, and
CD2, disparity between Perez, CD1, and CD2 is permissible under Tenth Circuit precedent.
“Disparate sentences are allowed where the disparity is explicable by the facts on the record.”30
Such facts warranting disparity include a “decision to accept responsibility and assist the
government.” 31 Here, the disparity between Perez and CD1 and possible disparity between Perez
and CD2 is warranted because CD1 and CD2 cooperated with and provided substantial assistance
to the Government, whereas Perez did not. Accordingly, any disparity argument counsel might
have made concerning CD1 and CD2 would have lacked merit, and Perez was not prejudiced by
counsel’s failure to make it.32
Perez cannot show that his counsel provided ineffective assistance concerning the disparity
between his sentence and others. Accordingly, his claim of ineffective assistance on this ground
fails under Strickland.
28 Doc. 90 at 12–15.
29 Id. at 15.
30 United States v. Zapata, 546 F.3d 1179, 1194 (10th Cir. 2008) (citation omitted).
31 Id. (citation omitted).
32 Orange, 447 F.3d at 797.
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3. 	Supervised Release
Perez further argues his counsel was ineffective by failing to object to the Court’s sentence
of a five-year term of supervised release. Perez points to the PSR, which states “[t]he guideline
range for a term of supervised release is 1 year to 3 years.”33 But the PSR also states that statute
required the Court to “impose a term of supervised release of at least three years.”34 Perez concedes
that the Court was within its discretion to impose a five-year term, but argues if his counsel raised
the PSR’s discrepancy, the Court might have imposed the minimum three-year term instead.
This argument presents nothing more than sheer possibility without proof. In imposing the
five-year term against Perez, the Court stated the period of supervision was “necessary to make
sure when he’s finished his term in prison, that he does not fall back into those old ways.” 35 Perez
offers no proof that an objection by counsel based on the PSR’s discrepancy would have changed
the Court’s reasoning. Accordingly, Plaintiff cannot establish prejudice by his counsel’s omission
such that his claim of ineffective assistance on this ground fails under Strickland.36
B. 	Gound Requiring an Evidentiary Hearing: Importation Enhancement
Finally, 	Perez 	argues 	his 	counsel 	was 	ineffective 	by 	conceding 	to 	the 	two-level
enhancement for importation of methamphetamine under U.S.S.G. § 2D1.1(b)(5). The PSR
recommended this two-level enhancement because Perez was involved in the importation of
methamphetamine from Mexico without specifying which methamphetamine it was referring to.37
33 Doc. 88 at 16, ¶ 79.
34 Id. at ¶ 78 (citing 21 U.S.C. § 841(b)(1)(C)).
35 Doc. 108 at 88.
36 See United States v. Rushin, 642 F.3d 1299, 1307 (10th Cir. 2011) (“Because possibilities without proof
are endless, they are no measure of counsel’s performance.”).
37 Doc. 88 at 10, ¶ 32.
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Counsel initially objected to this enhancement in the PSR but withdrew the objection in the
Sentencing Memorandum. Perez argues this concession constitutes ineffective assistance, and
counsel should have raised various arguments at the sentencing hearing.
As the Government points out, Perez’s arguments concerning the importation enhancement
largely dispute the facts underlying his offense conduct, that is, his dealings with CD3. In assessing
the importation enhancement, however, the Court could have considered the facts surrounding
Perez’s relevant conduct, that is, his dealings with CD1 and CD2. The Government argues that
had counsel raised Perez’s arguments concerning his dealings with CD3, it would have made no
difference because his dealings with CD1 and CD2 satisfy the importation enhancement’s
requirements. But the record does not conclusively establish which conduct underlies the
importation enhancement because counsel withdrew the objection to it and, as such, it was not
discussed at the sentencing hearing. Accordingly, the Court will consider all of Perez’s conduct
here, including his arguments concerning his dealings with CD3.
Perez’s arguments fall into three categories: (1) lack of importation; (2) lack of knowledge
of importation; and (3) lack of involvement in the importation. Perez’s lack of involvement
argument does not require an evidentiary hearing to resolve. In this argument, Perez argues he was
not involved in the importation of the methamphetamine associated with CD3, and counsel was
ineffective for failing to object on this basis. This “involvement” issue was the center of his
counsel’s initial objection to the importation enhancement, albeit concerning Perez’s dealings with
CD1 and CD2. There, the parties disputed whether the Government had enough evidence to prove
by preponderance of the evidence that Perez himself was involved in the importation of
methamphetamine from Mexico based on his dealings with CD1 and CD2.38 But, after reviewing
38 See id. at 29–31, ¶¶ 142–49.
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the relevant law, counsel withdrew his objection in the Sentencing Memorandum, citing United
States v. Redifer.39
In Redifer, a defendant argued the district court erred in assessing an importation
enhancement against him because he was not charged with any importation offense.40 The Tenth
Circuit concluded the defendant’s objection was meritless, citing opinions from the Fifth and Ninth
Circuits concluding that a defendant does not need to be personally involved in the importation of
drugs to receive a § 2D1.1(b)(5) assessment.41 The Tenth Circuit stated: “[w]e will follow our
sister circuits and conclude that is was sufficient for the government to show that the drugs were
imported.”42 Counsel quoted this statement in the Sentencing Memorandum to concede the
objection, thus, conceding that the Government was not required to show Perez himself was
involved in the importation.
In light of Redifer, the Court would have overruled any argument that Perez must be
personally involved in the importation for the enhancement to apply regardless of whether it was
made about his dealings with CD1, CD2, or CD3. Thus, Perez cannot show prejudice in counsel’s
concession and failure to raise this objection at the sentencing hearing.
But Perez’s lack of importation and lack of knowledge arguments cannot be conclusively
resolved on the record. In his lack of importation argument, Perez argues his counsel was
ineffective by failing to argue that the Government did not prove the methamphetamine CD3
acquired was imported from Mexico. The Government attempts to avoid this issue by arguing
39 631 F. App’x 548 (10th Cir. 2015).
40 Id. at 565.
41 Id.
42 Id.
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Perez’s dealings with CD3 were irrelevant to the Court’s assessment of the importation
enhancement given his dealings with CD1 and CD2. And the Government argues it presented
sufficient evidence that the methamphetamine concerning CD2 was imported from Mexico. Perez
did not file a reply challenging this argument. As previously explained, however, the record is not
clear on which conduct underlies the importation enhancement. Thus, the Court will hear evidence
concerning whether counsel was ineffective for failing to object on this basis.
In his lack of knowledge argument, Perez argues his counsel was ineffective for failing to
argue § 2D1.1(b)(5)’s text 43 imposes a scienter requirement and that the Government failed to
prove that Perez knew the methamphetamine was imported. The Tenth Circuit has not interpreted
the scope of § 2D1.1(b)(5)’s scienter requirement, largely resolving such disputes on the ground
that the government proved such knowledge regardless of what its interpretation may be.44 Outside
of the Tenth Circuit, circuits are split on the correct interpretation of § 2D1.1(b)(5).45 Because of
the circuit split and the Tenth Circuit’s silence, the scienter argument was available for counsel to
make and would not have been automatically foreclosed by Tenth Circuit precedent.
43 “If (A) the offense involved the importation of amphetamine or methamphetamine or the manufacture of
amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully, and (B)
the defendant is not subject to an adjustment under § 3B1.2 (Mitigating Role), increase by 2 levels.”
44 Redifer, 631 F. App’x at 565 (“We need not resolve this issue, because regardless of the correct reading of
the Guideline provision, we determine that the government proved by preponderance of the evidence that [the
defendant] knew the methamphetamine was imported.”); United States v. Valdez, 723 F. App’x 624, 627 (10th Cir.
2018) (“This Court has not yet squarely addressed this scienter issue and we need not in this case.”); see also United
States v. Lara, 2024 WL 2931011, at *7 (10th Cir. June 11, 2024) (resolving a scienter challenge to the importation
assessment on alternative grounds).
45 Compare United States v. Serfass, 684 F.3d 548, 551 (5th Cir. 2012) (“Thus, the § 2D1.1(b)(5) sentencing
enhancement applies if ‘the offense involved the importation of amphetamine or methamphetamine’ regardless of
whether the defendant had knowledge of that importation.”); United States v. Werkmeister, 62 F.4th 465, 469 (8th Cir.
2023) (adopting Serfass’s rationale), with United States v. Job, 871 F.3d 852, 871–72 (9th Cir. 2017) (declining to
adopt Serfass’s rationale).
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In addition, because counsel withdrew his objection to the importation enhancement, there
was insufficient testimony presented demonstrating the Government could prove Perez’s
knowledge of such importation in his dealings with CD1, CD2, and CD3 regardless of whether
§ 2D1.1(b)(5) requires proof of such knowledge. And because counsel’s initial objection
concerned Perez’s involvement in the importation of the drugs associated with CD1 and CD2, not
his knowledge of such, the record does not establish that counsel’s withdrawal was a strategic
decision after determining no such scienter requirement exists, as the Government contends. Thus,
after reviewing the record, the Court concludes it does not conclusively establish other grounds
that foreclose Perez from relief based on his lack of knowledge argument.
Accordingly, the Court determines a limited hearing on Perez’s § 2255 Motion is necessary
to determine whether his counsel was ineffective by failing to argue (1) the Government did not
present evidence that the methamphetamine CD1, CD2 or CD3 acquired was imported from
Mexico; and (2) § 2D1.1(b)(5) imposes a scienter requirement as it relates to his dealings with
CD1, CD2, and CD3.
C. 	Instructions on Future Proceedings
The Court intends to provisionally appoint Perez new counsel for purposes of this matter.
That counsel shall provide Perez with the documents necessary to update his financial affidavit
demonstrating he remains entitled to appointed counsel under 18 U.S.C. § 3006A. 46 Once the
updated 	financial 	affidavit 	is 	filed 	and 	approved, 	appointed 	counsel 	will 	no 	longer 	be
“provisionally” appointed, and will assist Perez with preparing for and conducting the evidentiary
hearing ordered herein. The Court will initiate the process and timeline for returning Perez to this
46 See Swazo v. Wyo. Dep’t of Corr. State Penitentiary Warden, 23 F.3d 332, 334 (10th Cir. 1994) (“If the
district court determines a hearing is required, it must appoint counsel.”).
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judicial district for the evidentiary hearing and will set the hearing in conjunction with that timeline
and counsels’ availability.
IT IS THEREFORE ORDERED that Perez’s Motion to Vacate, Set Aside, or Correct
the Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 114) is DENIED in part. The Court will resolve
the remainder of Perez’s Motion after holding an evidentiary hearing to be set at a future date.
IT IS SO ORDERED.
Dated this 15th day of April, 2026.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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