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United States v. Valenzuela

United States District Court, D. New Mexico

January 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
VERONICA VALENZUELA, Defendant.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         This matter is before the Court on Defendant Veronica Valenzuela's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody [CR Doc. 85], filed on August 18, 2017. Defendant is incarcerated and proceeding pro se.[1] Defendant contends that she improperly was sentenced as a career offender under the United States Sentencing Guidelines (U.S.S.G.) because she “was never convicted” in “case # D-619-CR-200500092” and the “case was over 10 years old prior to being dropped.” [CR Doc. 85 at 4] For the following reasons, the Court determines that Defendant plainly is not entitled to relief under § 2255 and, therefore, her § 2255 motion will be dismissed with prejudice, a certificate of appealability will be denied, and judgment will be entered.

         I. BACKGROUND

         On April 24, 2015, Defendant was charged by Information with two counts of conspiracy to possess with intent to distribute 50 grams and more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 21 U.S.C. § 846. [CR Doc. 45] Defendant entered into a plea agreement, in which she agreed to plead guilty to both counts of the Information and to waive her right to directly appeal and collaterally attack her convictions and sentences under “28 U.S.C. §§ 2241, 2255, or any other extraordinary writ, except on the issue of defense counsel's ineffective assistance.” [CR Doc. 48 at 6-7]

         The United States Probation Office prepared a Presentence Investigation Report (PSR), which determined that Defendant was a career offender under U.S.S.G. § 4B1.1. [PSR at 5, 8] The career offender enhancement was based on Defendant's two prior felony controlled substance convictions for: (1) “Distribution of Methamphetamine on September 12, 2005, in the Sixth Judicial District Court of Luna County in Deming, New Mexico, under Case No. CR2005-00092;” and (2) “Possession with Intent to Distribute 50 Kilograms and More of Marijuana on September 15, 2009, in United States District Court for the District of New Mexico, Las Cruces Division, under Case o. 2:09CR02716-001 RB.” [PSR at 5] As a result of the career offender enhancement, Defendant's total offense level was 31 and her criminal history category was VI, [2] resulting in a guideline imprisonment range of 188 to 235 months. [PSR at 24]

         On March 30, 2017, the Court accepted Defendant's guilty plea and the plea agreement, adopted the findings in the PSR, and varied downward from the recommended guidelines sentence of 188 to 235 months. [CR Doc. 80] The Court sentenced Defendant to 156 months of imprisonment as to each count of the Information, said terms to run concurrently, for a total term of 156 months of imprisonment. [CR Docs. 80, 81] Additionally, the Court imposed a term of 5 years of supervised release as to each count of the Information, said terms to run concurrently, for a total term of 5 years of supervised release. [CR Doc. 81 at 4] The Court rendered judgment on Defendant's convictions and sentences on March 31, 2017. [CR Doc. 81]

         On June 29, 2017, Defendant filed a Motion For Reconsideration of Sentence, asking the Court to “reconsider” her sentence because she was never convicted in “Cause No. D-619-CR-200500092 on charges of possession with intent to distribute.” [CR Doc. 83] In a July 19, 2017 Order, the Court informed Defendant that she “may only challenge her sentence by a motion under 28 U.S.C. § 2255” and, therefore, “the Court intends to recharacterize Valenzuela's Motion for Reconsideration as a first § 2255 motion to vacate, set aside, or correct sentence.” [CR Doc. 84 at 1-2] Consistent with Castro v. United States, 540 U.S. 375 (2003), the Court afforded Defendant “an opportunity to withdraw the motion or to amend it to add additional claims she may have.” [CR Doc. 84 at 2]

         In response, Defendant filed the present § 2255 motion, which supersedes her Motion For Reconsideration of Sentence. [CR Doc. 85] See Davis v. TXO Production Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (“[I]t is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”) (internal quotation marks and citations omitted); see also Fed. R. Civ. P. 15(a); Rule 12 of the Rules Governing Section 2255 Proceedings For the United States District Courts. In her § 2255 motion, Defendant contends that:

Sentencing was based on a conviction on case # D-619-CR-200500092 which I was never convicted for and resulting in a severe punishment when I was not convicted due to lack of evidence. Charges were dropped. Case was over 10 years old prior to being dropped. Case should not have reflected sentencing.

[CR Doc. 85 at 4]

         II. DISCUSSION

         Title 28 of the United States Code, section 2255 provides that the District Court shall hold an evidentiary hearing on a defendant's § 2255 motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Under § 2255(b), an evidentiary hearing is not “required where the district court finds the case record conclusively shows the prisoner is entitled to no relief.” United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988). For the reasons explained in this Memorandum Opinion and Order, the Court finds, in light of the case record and the official state court docket in State of New Mexico v. Veronica Valenzuela, No. D-619-CR-2005-00092, [3] that Defendant is not entitled to relief under § 2255. See Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (holding that “no hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact”) (internal quotation marks and citations omitted). Therefore, an evidentiary hearing is not required in this case.

         The official state court docket in case no. D-619-CR-2005-00092 reflects that on April 11, 2005, Defendant was charged with: (1) possession with intent to distribute a controlled substance, in violation of N.M. Stat. Ann. § 30-31-22(A)(2)(a); and (2) possession of marijuana (more than one ounce), in violation of N.M. Stat. Ann. § 30-31-23(B)(2). [OPN: Criminal Information/Complaint, filed on April 11, 2005]. Possession with intent to distribute a controlled substance under N.M. Stat. § 30-31-22(A)(2)(a) is “a third degree felony.” Defendant entered into a Plea & Disposition Agreement on September 12, 2005, which is described in the state court docket as follows:

DEF AGREES TO PLEA GUILTY TO COUNT 1 & 2 DEF BE COMMITTED TO THE NMDCCR FOR A PERIOD OF 3 YEARS ON COUNT 1 AND 364 DAYS ON COUNT 2 W/EA COUNT RUNNING CONSECUTIVE TO EA OTHER FOR A TOTAL SENTENCE OF 3 YRS, 364 DAYS, WHICH SHALL BE SUSPENDED EXCEPT FOR 364 DAYS TO BE SERVED IN LCDC. PLACE ON SUPERVISED PROBATION FOR A PERIOD OF 3 YRS, DEF FURLOUGHED TO A 1 OR 2 YR LONG TERM IN-PATIENT SUBSTANCE ABUSE TREATMENT

[Plea & Disposition Agreement, filed on September 12, 2005] The state court accepted Defendant's guilty plea and imposed a “4 YR 5 MONTH AND 29 DAY SENTENCE SUSPENDED EXCEPT FOR 364 DAYS TO BE SERVED IN LCDC; UPON RELEASE DEF SHALL BE PLACED ON SUPERVISED PROBATION FOR 3 YRS 6 MONTHS.” [CLS: GUILTY PLEA/JUDGMENT, filed on March 2, 2006] Defendant's Judgment and ...


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