United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION
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. On September 27, 2018, Bustamante-Conchas
filed a memorandum in support of his Motion. Respondent the
United States responded. 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.
BACKGROUND AND PROCEDURAL HISTORY
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.
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
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.
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. 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. The Court denied the motion to
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.
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.
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.
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.
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).
15, 2018, the Tenth Circuit entered Bustamante Conchas
III, affirming the district court.
Bustamante-Conchas III, 735 Fed.Appx. at 517.
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.