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Herrera v. U.S.

Counsel Not Ineffective for Not Challenging Base Offense Level Increase for Possessing Gun

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MEMORANDUM & ORDER Lenin Herrera petitions this Court to vacate his sentence pursuant to 28 U.S.C. §2255 for ineffective assistance of counsel based on his attorney’s decision not to contest during sentencing a sentencing enhancement to which Herrera had agreed in his plea agreement. The Court denies Herrera’s petition for the reasons stated herein. BACKGROUND On November 6, 2017, law enforcement officers detained Herrera after a police canine alerted them to the smell of drugs in Herrera’s car during a traffic stop. Compl. (ECF No. 1) 4(e)-(g).¹ After Herrera was brought to the police station, he told the officers that he wanted to cooperate, and apprised them of a “trap” in the rear middle console of the car that he used to conceal drugs. Id. 4(h). As the car had also been seized and brought to the station, law enforcement opened the trap and found several kilograms of cocaine. Id.

4(j), 5. Herrera was arrested and charged by complaint that day. Id. 5. Herrera’s car was later transferred to the United States Marshals Service for forfeiture. On December 19, 2017, while preparing Herrera’s car for auction, United States Marshals discovered a.380 Smith & Wesson handgun hidden inside the trap. PSR (ECF No. 23) 19. On January 8, 2018, a federal grand jury returned a three-count indictment against Herrera. See Indictment (ECF No. 9). Count One of the indictment charged Herrera with knowingly and intentionally distributing and possessing with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(B). Id.

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