United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
matter is before me on Defendant's Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody. Doc. 1. The United States has
filed a response, Doc. 13, and Defendant has filed a reply.
Doc. 16. Having reviewed the briefing and being fully
advised, I recommend the Motion be denied because each of its
claims falls squarely within the collateral attack waiver in
the plea agreement that Defendant knowingly and voluntarily
entered into in this case.
Factual and Procedural Background
The Crimes and the Charges
3, 2013, an Albuquerque Police Department (APD) officer
stopped a vehicle driven by Defendant for an expired
temporary license tag. PSR ¶ 13. The officer arrested
Defendant after learning that he was driving on a revoked
license. Id. An inventory search of the vehicle
yielded a loaded .38 caliber handgun, additional ammunition,
and four small baggies containing a substance that
field-tested positive for methamphetamine. Id. At
the time, Defendant had already been convicted of the felony
crimes of aggravated battery, attempted kidnaping, false
imprisonment, and failure to register as a sex offender.
See Indictment, Cr. Doc. 2. Consequently,
Defendant was charged on September 25, 2013 by a federal
grand jury for possessing the firearm and ammunition as a
previously-convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Id.
the pending indictment and arrest warrant, Defendant was not
arrested for another ten months. On August 7, 2014, APD
detectives encountered Defendant at an Albuquerque motel and
arrested him. PSR ¶ 17. During a search incident to
arrest, detectives discovered that Defendant was carrying a
loaded .40 caliber pistol on his hip. Id. On October
7, 2014, a superseding indictment charged Defendant with
possessing the firearms and ammunition seized on both
occasions. Cr. Doc. 18. Count 1 involved the firearm and
ammunition seized in June 2013, and Count 2 did the same for
those recovered in August 2014. Id.
The Form 13 Presentence Report
the Court permitted Defendant's first counsel to withdraw
based on a breakdown in attorney-client communication, a
magistrate judge appointed Marc Grano, Esq., to represent
Defendant. Cr. Doc. 31. A Form 13 PSR was disclosed to the
parties on December 4, 2014 to assist them in understanding
Defendant's sentencing exposure for plea negotiation
purposes. The pre-plea PSR recommended that Defendant's
adjusted offense level should be 30 before taking into
account any credit for acceptance of responsibility.
See Form 13 PSR ¶ 25. This computation began
with a base offense level of 24 under U.S.S.G. §
2K2.1(a)(2), in view of Defendant having committed the
felon-in-possession offenses after sustaining at least two
convictions for felony crimes of violence. Id.
¶ 19. The PSR recommended that an additional two levels
be added under § 2K2.1(b)(4)(A), by virtue of the
firearm in Defendant's possession in August 2014 having
been stolen. Id. ¶ 20. The PSR further
recommended that an additional four levels be added under
§ 2K2.1(b)(6)(B) because the Defendant possessed the
firearm in June 2013 in connection with the felony
methamphetamine evidence found in the same console of the
vehicle. Id. ¶ 21. The PSR also calculated
Defendant to be in Criminal History Category VI. Id.
¶ 41. Ultimately, the PSR computed Defendant's
guideline sentencing exposure (without contemplating any
credit for acceptance of responsibility) as 168-210 months.
Id. ¶ 51. 
The Plea Agreement
with the guidance of the Form 13 PSR, the parties then
entered into a written plea agreement. Cr. Doc. 47. In
relevant part, the plea agreement required Defendant to plead
guilty to Count 1 in exchange for the dismissal of Count 2.
In addition, the parties stipulated that Defendant should
receive a reduction under U.S.S.G. § 3E1.1 for
acceptance of responsibility. Cr. Doc. 47 ¶ 8a. The
United States further agreed “to recommend a sentence
no greater than ninety-six months (96) months [sic] or eight
years imprisonment.” Id., ¶ 8c. The
parties otherwise reserved their rights to litigate any other
aspect of the Defendant's sentence including the
applicability of any other sentencing guideline provision.
Id. ¶ 8d.
the agreement featured a section entitled “WAIVER OF
APPEAL RIGHTS[, ]” which because of its centrality to
the outcome of this Motion is worth quoting in full:
The Defendant is aware that 28 U.S.C. § 1291 and 18
U.S.C. § 3742 afford a Defendant the right to appeal a
conviction and the sentence imposed. Acknowledging that, the
Defendant knowingly waives the right to appeal the
Defendant's conviction and any sentence and fine within
or below the applicable advisory guideline range as
determined by the Court. The Defendant specifically agrees
not to appeal the Court's resolution of any contested
sentencing factor in determining the advisory sentencing
guideline range. In other words, the Defendant waives the
right to appeal both the Defendant's conviction and the
right to appeal any sentence imposed in this case except to
the extent, if any, that the Court may depart or vary upward
from the advisory sentencing guideline range as determined by
the Court. In addition, the Defendant agrees to waive any
collateral attack to the Defendant's conviction and any
sentence, including any fine, pursuant to 28 U.S.C.
§§ 2241 or 2255, or any other extraordinary writ,
except on the issue of counsel's ineffective assistance
in negotiating or entering this plea or this waiver.
Id., ¶ 13 (emphasis added).
of the plea agreement, Defendant also acknowledged that he
had “carefully discussed every part of it with [his]
attorney.” Id. 10. He further attested:
I understand the terms of this agreement, and I voluntarily
agree to those terms. My attorney has advised me of my
rights, of possible defenses, of the sentencing factors set
forth in 18 U.S.C. § 3553(a), of the relevant Sentencing
Guideline provisions, and of the consequences of entering
into this agreement. No promises or inducements have been
given to me other than those contained in this agreement. No
one has threatened or forced me in any way to enter into this
agreement. Finally, I am satisfied with the representation of
my attorney in this matter.
The Change of Plea Hearing
pleaded guilty pursuant to this agreement on May 20, 2015.
See Clerk's Mins., Cr. Doc. 48, and Plea
Hr'g Tr., Cr. Doc. 66. During the plea colloquy, during
which Defendant answered the Court's questions under oath
and subject to the penalty of perjury, he admitted that he
was 38 years old and had two years of college credits. Plea
Hr'g Tr. 3. He denied being under the influence of any
drugs or alcohol, or having any condition that interfered
with his understanding of the proceedings. Id. 3-4.
He affirmed that he understood the maximum penalties,
id. 4, and that the sentencing judge would consult
the advisory sentencing guidelines in determining sentence.
Id. 5. He further acknowledged that
“[u]sually, a judge will sentence within that
applicable range but there are times a judge will go above or
below that range and that will be upheld so long as it is a
reasonable sentence.” Id. Defendant admitted
that his attorney had shared with him an estimate of the
applicable range, but that the estimate could be wrong.
Id. Defendant understood the parties'
stipulation concerning acceptance of responsibility and the
Government's agreement to recommend a prison term of 96
months, although neither provision was binding on the
sentencing judge. Id. 6. He acknowledged that, apart
from the parties' single stipulation and the
Government's 96-month recommendation, the parties
reserved their rights to assert any other position or
argument with respect to what the sentence should be.
the appeal waiver, Defendant affirmed that he understood he
was waiving his right to appeal his conviction and sentence,
that he had discussed it with his attorney, and that he knew
the waiver would be enforced. Id. 7-8. Government
counsel reiterated his recommendation of a 96-month sentence
and specifically alluded to the Form 13 PSR's assessment
that the adjusted guideline range exceeded the statutory
maximum sentence for a single count of violating 18 U.S.C.
§ 922(g)(1). Id. 9. Ultimately, Defendant
acknowledged that he understood every term of his agreement
and affirmed that no one had made any different or additional
promise besides those contained in the written agreement.
Id. 9-10. He professed satisfaction with his
counsel's advice and representation. Id. 12.
full advisement of his trial rights, id. 11-12, and
Defendant's confirmation of a factual basis, id.
13-14, the court accepted his guilty plea, finding that:
[Defendant] is fully competent and capable of entering an
informed plea. He's aware of the nature of the charge and
the consequences of the plea, and this plea of guilty is
knowing, it's voluntary and it is supported by an
independent basis in fact that contains all of the elements
of the offense.
Id. 14. The court and counsel then agreed that a
traditional PSR would need to be prepared. Id.
The Two Post-Plea Presentence Reports
10, 2015, the Probation Office disclosed the PSR. Although it
would soon be revised for reasons explained infra,
this PSR also recommended the same offense level calculations
as had the Form 13 PSR, except this time awarding Defendant a
three-level reduction for acceptance of responsibility.
See Original PSR ¶¶ 25-35. Importantly,
this PSR also recommended that the offense level be increased
a total of six levels for possessing a stolen firearm and
possessing a firearm in connection with another felony as had
the Form 13 PSR. Id. ¶¶ 26-27. An adjusted
offense level of 27 and a criminal history category of VI
yielded an advisory guideline range of 130-162 months.
Id. ¶ 83.
light of the United States Supreme Court's very recent
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), the Probation Office disclosed a revised PSR on
August 17, 2015. Recognizing that Defendant's false
imprisonment conviction no longer qualified as a crime of
violence under U.S.S.G. § 4B1.2(a), this PSR reduced
Defendant's base offense level to 20 pursuant to §
2K2.1(a)(4)(A). PSR ¶ 25. That was the only change in
the offense level computation, however, as this version of
the PSR continued to recommend the same upward adjustments
for possessing a stolen firearm and possessing a firearm in
connection with another felony as had the two earlier PSRs.
Id. ¶¶ 26-27. Giving Defendant credit for
acceptance of responsibility, this PSR recommended an
adjusted offense level of 23, a criminal history category of
VI, and an advisory guideline range of 92-115 months.
Id. ¶ 83.
Court originally scheduled the sentencing hearing for August
25, 2015. Cr. Doc. 49. The Court reset the hearing to
September 17, 2015, after granting defense counsel's
motion for additional time to review the late-disclosed PSR
and otherwise prepare for sentencing. See Cr. Docs.
50 (motion to continue sentencing) and 51 (order granting
The Sentencing Filings and Hearing
party filed objections to the PSR, but both parties filed
sentencing memoranda prior to the hearing. The Government
informed the Court that, although it had pledged in the plea
agreement to recommend a sentence of 96 months, it had no
objection to a sentence of 92 months, given that 92 months
was the bottom end of the recalculated guideline range.
See Cr. Doc. 52. For his part, defense counsel filed
a 10-page sentencing memorandum in which he requested a
downward variance from the advisory guideline range.
See Cr. Doc. 53. He contended that the combination
of Defendant's extraordinary family circumstances,
highlighted by his wife's physical and mental conditions,
Defendant's own medical condition, and Defendant's
employment history should persuade the Court to arrive at a
sentence lower than the 92-115 months that the PSR otherwise
recommended. See id., passim.
sentencing hearing, defense counsel confirmed that he had no
objections to the PSR. Sntc'g Tr., Cr. Doc. 68,
4. In his oral argument, defense counsel
essentially repeated the themes of his sentencing memorandum,
offered a mitigating explanation of his client's criminal
history, and asked for a sentence beneath the recommended
range. See Id. 5-11, 12-13, 16-18, 21. Again, he
made no mention of either of the upward adjustments at issue
in the instant § 2255 motion. When it was his turn to
speak, Defendant told the Court that he was “well aware
of the consequences of the federal court systems and its
sentencing guidelines.” Id. 11 (emphasis
added). He went on to say: “And now that I'm aware
- clearly aware - of the sentencing guidelines, I
can say that in the future I will not possess a firearm or
ammunition.” Id. (emphasis added). He
concluded by asking the Court to sentence him to “the
lowest term of imprisonment possible.” Id. 12.
Court sentenced Defendant to 92 months in prison, the lowest
end of the adjusted advisory range. Id. 23. The
Court also reminded Defendant that he had waived his right to
appeal. Id. 27. The Court filed its judgment on
September 24, 2015. See Cr. Doc. 55.
waived his right to do so, Defendant did not file a direct
appeal. On August 26, 2016, however, he did file the instant
§ 2255 motion.