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Bustamonte-Conchas v. United States

United States District Court, D. New Mexico

December 14, 2018

MIGUEL BUSTAMANTE-CONCHAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM ORDER AND OPINION

         On August 27, 2018, Miguel Bustamante-Conchas filed a motion under 28 U.S.C. § 2255, asking the Court to vacate his sentence because his federal conviction violated his constitutional right to effective assistance of counsel.[1] On September 27, 2018, Bustamante-Conchas filed a memorandum in support of his Motion.[2] Respondent the United States responded.[3] The Court has reviewed the Motion, Memorandum, Response and applicable law. For the reasons explained below, the Court will deny Bustamante-Conchas's Motion without an evidentiary hearing.

         I. BACKGROUND AND PROCEDURAL HISTORY

         Three Tenth Circuit Court of Appeals opinions as well as rulings by this Court have thoroughly documented the facts of this case. See, e.g., United States v. Bustamante-Conchas, 832 F.3d 1179 (10th Cir. 2016) (Bustamante-Conchas I), rev'd on reh'g en banc, 850 F.3d 1130 (10th Cir. 2017) (Bustamante-Conchas II); United States v. Bustamante-Conchas, 735 Fed.Appx. 515 (10th Cir. May 24, 2018) (Bustamante-Conchas III). Here, the Court states only those facts necessary for resolving the issues before it.

         Bustamante-Conchas and Baltazar Granados (Granados) trafficked heroin in the Albuquerque, New Mexico area. The pair both distributed and cooked heroin at Granados' home. Bustamante-Conchas and Granados kept heroin and cash in various homes controlled or owned in the Albuquerque area by Bustamante-Conchas, Granados, and Granados's wife, Olga Fabiola Rosales-Acosta (wife).

         In 2013, Drug Enforcement Administration agents (agents) arrested Bustamante-Conchas and Granados. Contemporaneous with the arrest, agents executed a search warrant at Bustamante-Conchas's homes and at other properties owned or rented by Bustamante-Conchas, Granados, and Granados's wife. The police found over two hundred grams of heroin in Bustamante-Conchas's homes and almost ten kilograms of heroin in the properties owned or rented by Granados and his wife. During the search, agents also seized all cellular telephones found in the homes.

         The Government charged Bustamante-Conchas, Granados, and three other co-defendants, Angel Miramontes-Cruz, Ramon Cabrales-Guerra, and Ruben Garcia-Miranda with various federal crimes associated with heroin trafficking.[4] At some time during the ensuing criminal proceedings, Bustamante-Conchas's co-defendants signed plea agreements. The Government then obtained a superseding indictment against Bustamante-Conchas. Prior to trial, Bustamante-Conchas's trial counsel filed a motion to suppress evidence obtained from the telephones, arguing that the warrant was not particular.[5] The Court denied the motion to suppress.[6]

         After trial, the jury found Bustamante-Conchas guilty of conspiracy and intent to distribute one kilogram or more of heroin under 21 U.S.C. § 841(a)(2). Before the charge under § 841(a)(2) went to the jury, Bustamante-Conchas's trial counsel did not request a special jury verdict form asking the jury to find beyond a reasonable doubt an explicit quantity of narcotics attributed to Bustamante-Conchas.

         Before sentencing, Bustamante-Conchas gave evidence about his difficult childhood. At the sentencing hearing, Bustamante-Conchas disputed certain facts in the presentencing report (PSR), including its calculation of drug quantity. The PSR calculated a drug quantity of 12.84 kilograms of heroin, which included all drugs and cash found at the homes of Bustamante-Conchas, Granados, and Granados' wife. Based on that quantity, and enhancements for firearm possession and keeping a place for distributing drugs, Bustamante-Conchas's offense level was 40 and his criminal history category was 1, resulting in a Sentencing Guideline range of 292 to 365 months. At the sentencing hearing, the Court heard testimony and argument. Without giving Bustamante-Conchas an opportunity to allocute, the Court found that Sentencing Guideline range was 292 to 365 months. After finding that Bustamante-Conchas had a difficult childhood, the Court varied downward and sentenced Bustamante-Conchas to 240 months imprisonment.

         Bustamante-Conchas timely appealed the drug quantity attributed to him, the dangerous weapon enhancement, and the absence of a chance to allocute before sentencing. Bustamante-Conchas did not appeal the Court's denial of his motion to suppress. In Bustamante-Conchas I, a Tenth Circuit panel affirmed the Court on the first two issues but divided on the allocution issue. Bustamante Conchas I, 832 F.3d at 1186-87. After en banc review on the allocution issue only, in Bustamante-Conchas II, the Tenth Circuit vacated Bustamante-Conchas's sentence and remanded for resentencing. Bustamante-Conchas II, 850 F.3d at 1144.

         At resentencing, the Court orally said that while sentencing all four of Bustamante-Conchas's co-defendants and the two separately charged co-conspirators in this case, it had reviewed each defendants' PSR. The Court heard Bustamante-Conchas's allocution, then adopted its earlier findings about the enhancements and the drug quantity and once again found a Guidelines range of 292 to 365 months. After the Court found Bustamante-Conchas's allocution “sincere and contrite, ” and after the Court reiterated that it had considered the PSRs of the co-defendants and separately charged defendants, the Court sentenced Bustamante-Conchas to 216 months imprisonment. During resentencing, Bustamante-Conchas did not object to the Court's consideration of the third-party PSRs.

         Bustamante-Conchas appealed after resentencing, arguing that the district court erred by relying on the PSRs without giving him prior notice and an opportunity to respond in violation of Federal Rule of Criminal Procedure 32(i)(1)(B) and Rule 32(i)(1)(C).

         On June 15, 2018, the Tenth Circuit entered Bustamante Conchas III, affirming the district court. Bustamante-Conchas III, 735 Fed.Appx. at 517.

         Now, Bustamante-Conchas seeks a writ from this Court under 28 U.S.C. § 2255 arguing that he received ineffective assistance of counsel during his first trial, his first appeal, and his resentencing.

         II. L ...


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