United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH United States Magistrate Judge
matter comes before me on Petitioner's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. Doc.
1. Upon review of the Motion and the United
States' Response (doc. 4), I conclude that there
is no need for an evidentiary hearing and recommend denial of
22, 2014, law enforcement officers executed a search warrant
upon the Petitioner's truck. Doc. 4 at 1. The
officers located approximately 30.3 grams of methamphetamine
and several small plastic baggies concealed in a fake Arizona
Iced Tea can behind the driver's seat. Id.
Officers found two portable scales, one in a satchel inside
the truck and one in the driver's side door. Officers
also found a Glock, Model 30, .45 caliber pistol, concealed
between the driver's seat and the center seat; a
Romarm/Cugir, Model SAR-1, 7.62x39 mm caliber rifle, wrapped
in a sheet behind the driver's seat; approximately ten
(10) rounds of Federal brand .45 caliber cartridges; and 4)
thirty-seven rounds of Wolf brand 7.62x39 mm caliber
cartridges. Id. at 1-2.
October 7, 2014 an Indictment was filed against Petitioner,
charging the following crimes: Count 1 - Felon in Possession
of a Firearm and Ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924 (a)(2); Count 2 - Possession
with Intent to Distribute a Mixture and Substance Containing
Methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C); and Count 3 - Using, Carrying and
Possessing a Firearm During and in Relation to and in
Furtherance of a Drug Trafficking Crime, in violation of 18
U.S.C. § 924(c). Cr. Doc. 2. Approximately two
months later, a Superseding Indictment was filed against the
Petitioner including Counts 4 and 5 for the additional crimes
of illegally possessing firearms at the time of his arrest on
or about October 28, 2014, in violation of 18 U.S.C.
§§ 922(g)(1) and 924 (a)(2). Cr. Doc. 16.
October 29, 2014, the Court appointed Chief Federal Public
Defender, Stephen P. McCue as Petitioner's counsel.
Cr. Doc. 7. On November 20, 2014, Petitioner's
counsel filed a Motion to Suppress. Cr. Doc. 12. On
February 3, 2015, Petitioner's counsel filed a Motion to
Withdraw as Attorney. Cr. Doc. 22. The Motion to
Withdraw was based on a breakdown in communication due to
Petitioner's dissatisfaction with and refusal to speak to
defense counsel. Id. On February 4, 2015, the United
States filed a response in opposition to the Motion to
Withdraw. Cr. Doc. 23. The Court heard the Motion to
Withdraw on February 4, 2015 and denied it on February 12,
2015. Cr. Docs. 25, 26. On February 23, 2015,
Petitioner's counsel filed a second Motion to Suppress.
Cr. Doc. 27. On March 26, 2015, the United States
responded to both motions to suppress. Cr. Docs. 34,
17, 2015, Petitioner entered into a plea agreement pursuant
to Fed. R. Crim. P. 11(c)(1)(C). Cr. Doc. 47. In the
Agreement, Counts 1, 4, and 5 were dropped, and Petitioner
pleaded guilty to Counts 2 and 3. Id. at 2.
Petitioner acknowledged his understanding in the Agreement
that he faced a potential term of imprisonment of no more
than 20 years under Count 2. Id. With respect to
Count 3, he acknowledged he faced a minimum term of
imprisonment of five years. Id. at 3. The Agreement
further acknowledged that it was an 11(c)(1)(C) agreement
stipulating a specific term of imprisonment of 120 months,
and that if the Court rejected the terms of the Agreement,
the Petitioner had the right to withdraw his plea.
Id. at 3, 5-6.
agreed to certain additional terms in the Agreement. First,
he agreed not to seek “a downward departure or variance
from the specific sentence of 10 years or 120 months of
imprisonment.” Cr. Doc. 47 at 6-7. Second, he
acknowledged that any violation of this term gave the United
States the right to treat the Agreement as null and void and
to proceed to trial on all charges in the Superseding
Indictment. Id. at 7. Petitioner further agreed to
waive his appellate and collateral attack rights.
waiver states in relevant part:
Defendant knowingly waives the right to appeal the
Defendant's conviction(s) and any sentence, including any
fine, imposed in conformity with this Fed. R. Crim. P.
11(c)(1)(C) plea agreement. In addition, the Defendant agrees
to waive any collateral attack to the Defendant's
conviction(s) and any sentence, including any fine, pursuant
to 28 U.S.C. §§ 2241, 2255, or any other
extraordinary writ, except on the issue of defense
counsel's ineffective assistance.
September 25, 2015, the United States Probation Office
disclosed its Presentence Report (PSR). See doc.
4-1. The PSR concluded that, after adjustments for
acceptance of responsibility, the Petitioner's base
offense level was 29. PSR ¶ 34. Petitioner was
classified as a career offender under U.S.S.G. § 4B1.1,
making his criminal history category a VI. PSR ¶ 48. The
PSR noted that ordinarily, under the Guidelines,
Petitioner's offense level of 29 and criminal history
category of VI would result in a sentencing range of 151
months to 188 months. PSR ¶ 90. However, based on his
career offender status and his corresponding conviction under
18 U.S.C.A. § 924(c), the guideline range became 262
months to 327 months. Id. The PSR concluded that if
the Petitioner were convicted at trial of all counts in the
Superseding Indictment, he would face penalties of 360 months
to life imprisonment. PSR ¶ 91.
October 1, 2015, the Court accepted the 11(c)(1)(C) plea
agreement and sentenced Petitioner pursuant to its terms.
See Cr. Doc. 52. He received sixty months (60)
imprisonment for Count 2 and a consecutive term of sixty
months (60) imprisonment for Count 3. Id. The Court
entered its Judgment on October 6, 2015. Cr. Doc.
55. On September 30, 2016, Petitioner filed the Motion
at issue here. Doc. 1.