Angelica Cervantes

Full title: JUAN CERVANTES, Defendant-Petitioner, v. UNITED STATES OF AMERICA…

Court: United States District Court, Northern District of Illinois

Date published: Jan 23, 2023


Petitioner Juan Cervantes pleaded guilty to one count of conspiracy to possess with the intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846. (Dkt. 7 at 2). Cervantes moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Dkt. 1). He argues that his appointed pretrial counsel’s ineffective performance resulted in an unfair sentence, (id. at 5-6; see also dkt. 10 at 3-7), and that the Government unconstitutionally penalized him for exercising his Fifth Amendment right to remain silent.



The only factual basis Cervantes alleges that the prosecution “punished” him was the prosecutor’s statement at sentencing that Cervantes did not “come and help himself” or cooperate with the government after being charged. (Dkt. 10 at 8). This is not improper prosecutorial conduct; rather, the Government presented a relevant and permissible sentencing consideration to the court. See Gamble969 F.3d at 723 (“[A] defendant’s decision not to cooperate with the authorities in a criminal investigation may be a relevant and permissible consideration for a judge deciding on an appropriate sentence.” (citing Roberts v. United States445 U.S. 552, 559 (1980))). “A defendant who cooperates may be rewarded with a lower sentence, just as a defendant who pleads guilty may  be rewarded with a lower sentence.” Id. (citing United States v. Turner864 F.2d 1394, 1398 (7th Cir. 1989)). Cervantes has failed to explain in any specific way how he was “penalized” for remaining silent rather than denied the benefit of a potentially lower sentence. (See dkt. 1 at 8; dkt. 10 at 9 (“The prejudice of the violation of my 5th Amendment right not to be punished for remaining silent is obvious, as during plea negotiations and at sentencing the government refused to consider a minor role adjustment due to Petitioner invoking 5th Amendment right to remain silent.”)). Cervantes cannot show that his sentence should be vacated for violating his constitutional rights, because the prosecutor’s remark at sentencing was proper.

For these reasons, the Court denies Cervantes’s § 2255 motion to vacate, set aside, or correct his sentence.

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