UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-31301
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ARNOLDO OZUNA GALAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CV-1948
December 23, 1998
Before WISDOM, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:*
Arnoldo Ozuna Galan pleaded guilty to conspiracy to escape from a federal prison and was
sentenced to 37 months in prison. Galan’s conviction and sentence were affirmed on appeal.2 Galan
filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The district court
denied the motion. Galan now appeals, asserting three assignments of error.
First, Galan contends that he received ineffective assistance of counsel at sentencing. Galan
contends that the objections to the presentence investigative report (PSR) filed by his counsel resulted
in an increase his sentence. As part of a plea agreement, the United States agreed not to oppose
Galan’s contention that he had no aggravating role in the offense, and that he should be sentenced
at the low end of the applicable guideline range. The PSR recommended that Galan receive a two-
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
United States v. Galan, 82 F.3d 639 (5th Cir. 1996).
level reduction for acceptance of responsibility and a four-level increase for acting as an organizer
of the criminal activity. Galan’s counsel objected to the PSR, asserting that Galan was not an
organizer of the conspiracy.
The probation officer considered these objections equivalent to a denial of Galan’s
responsibility, and filed an amended PSR that did not include a two-level reduction for acceptance
of responsibility. As a result of the amended PSR, the guideline range changed from 24 to 30 months
in prison to 30 to 37 months. Galan was sentenced to 37 months. Galan now contends that the
objections could not possibly have proved beneficial to Galan, and that making the objections,
without calling witnesses who could have supported the objections, constituted ineffective assistance
of counsel.
To prevail on a claim of ineffective assistance of counsel, Galan must show that counsel’s
performance was deficient, and that this deficient performance prejudiced Galan at sentencing.3
Galan’s contention is that his counsel was ineffective for failing to call witnesses who would have
testified that Galan was not an organizer of the conspiracy. The failure to present mitigating evidence
at sentencing is not per se ineffective assistance of counsel.4 As Galan has made no other complaint
of deficient performance at sentencing, he has failed to meet the first prong of Strickland, and the
assignment is without merit.
Galan’s second contention is that his trial counsel had an actual conflict of interest. This
contention arises from counsel’s representation of both Galan and a codefendant, Fabian Ortiz. Galan
argues that he is entitiled to withdraw his guilty plea as a result of this conflict, and cites this Court
to Perillo v. Johnson.5 The defendant in Perillo did not enter a guilty plea. “Once a guilty plea has
been entered, all nonjurisdictional defects in the proceedings against a defendant are waived. This
3
Strickland v. Washington, 466 U.S. 668 (1984) and Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.
1993).
4
Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997) see also Alexander v. McCotter, 775 F.2d
595, 602 (5th Cir. 1985).
5
79 F.3d 441 (5th Cir. 1996).
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includes all claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness
relates to the voluntariness of the giving of the guilty plea.”6 As Galan has never contested the
voluntariness of his plea, the allegation of ineffective assistance through conflict of interest is without
merit.
Finally, Galan contends that he is entitled to discovery and an evidentiary hearing to prove the
facts supporting his claims. A district court’s decision not to conduct an evidentiary hearing in a
§2255 proceeding is reviewed for an abuse of discretion.7 As Galan is not entitled to relief on either
issue on appeal, there was no need for the district court to hold an evidentiary hearing.8
AFFIRMED.
6
Smith v. Estelle, 711 F.2d 677 (5th Cir. 1983)(cites omitted)(emphasis in original).
7
United States v. Bartholemew, 974 F.2d 39, 41 (5th Cir. 1992).
8
United States v. Boniface, 631 F.2d 1228, 1229 (5th Cir. 1980).
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