United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION TO DENY PETITIONER'S MOTION UNDER
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Petitioner's Motion Under
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody [Doc. 1],  filed on September 18, 2018.
The United States responded on August 8, 2019. [Doc. 6].
Petitioner replied on September 10, 2019. [Doc. 10]. The
Honorable Kenneth J. Gonzales, United States District Judge,
referred this matter to me for analysis and a recommended
disposition. [Doc. 9]. I have considered the briefing, the
relevant portions of the record in this case and the criminal
case, and the relevant law. Being otherwise fully advised in
the premises, I recommend that Petitioner's Motion be
February of 2016, the Lea County Drug Task Force
(“LCDTF”) received information from a
confidential source indicating that Petitioner sold
“large quantities of” methamphetamine from his
recreational vehicle (“RV”) in Hobbs, New Mexico.
[Doc. 7] at 3 (Presentence Report). On February 19, 2016,
LCDTF agents executed a search warrant for the RV, finding
270.5 grams of a substance testing positive for
methamphetamine, in addition to two digital scales and two
direction of LCDTF agents, on or about December 19, 2016, the
confidential source called Petitioner to arrange for a sale
of methamphetamine valued at $600. [Doc. 6-3] at 5. During
this call, Petitioner told the confidential source that
“he was currently staying at the Black Gold Casino
[hotel] and had just gotten a room there.” [Doc. 6-3]
at 6. They agreed to meet at a Walmart parking lot to
complete the deal. Id. at 5.
drove to the hotel and observed Petitioner get into his car
in the hotel parking lot. Id. at 6. They followed
him to the Walmart parking lot and, as Petitioner attempted
to complete the sale of drugs to the confidential source,
detained him. Id. A search revealed that he had a
.22 caliber North American Arms pistol in his front left
pants pocket and 67 grams of methamphetamine. [Doc. 6-3] at
6; [Doc. 7] at 4. When searching him, they also found both
two keys for Room 522 at the hotel and breakfast vouchers for
the hotel. [Doc. 6-4] at 7; [Doc. 7] at 4. The agents then
obtained a search warrant for Room 522 at the Black Gold
Casino hotel, finding an additional 564 grams of a substance
testing positive for methamphetamine in the hotel room's
safe. [Doc. 7] at 4. Petitioner claims that the
methamphetamine in Room 522 belonged to a woman named Anita
or Annette, not him. Id.; [Doc. 1] at 17.
arrested Petitioner on January 5, 2017. [Doc. 7] at 1. The
government charged him with possession with an intent to
distribute 50 grams or more of a substance containing a
detectable amount of methamphetamine and aiding and abetting,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18
U.S.C. § 2. Id.
22, 2017, the Honorable Carmen Garza, Chief United States
Magistrate Judge, held a change-of-plea hearing. [Doc. 6-1].
Petitioner stated that he discussed the terms of the plea
agreement with his lawyer, Dennis Candelaria. Id. at
6. When Judge Garza asked him if he was “satisfied with
[Candelaria's] advice and his representation, ”
Petitioner replied, “Yes, ma'am.”
Id. Petitioner pleaded guilty to each of his
charges. [CR Doc. 27]. In the plea agreement, the United
States asserted that Petitioner was entitled to a one-level
base-offense-level reduction for acceptance of
responsibility. Id. at 4-5. The United States
requested that the Court increase his base offense level by
two levels for possessing a firearm. Id. at 5. By
pleading guilty, Petitioner waived his right to appeal the
conviction and sentence, including his right to bring any
collateral attack but for a claim of ineffective assistance
of counsel. Id. at 6. The United States agreed not
to bring additional criminal charges arising out of the
execution of the search warrants at Petitioner's RV and
the hotel room. See id.
the change-of-plea hearing, the United States Probation
Office (“USPO”) prepared the Presentence Report,
which calculated Petitioner's base offense level at 30.
[Doc. 7] at 5. The USPO arrived at this base offense level by
including all 901.5 grams of methamphetamine associated with
Petitioner as relevant conduct: the 270.5 grams found in his
RV, the 67 grams found on his person when detained, and the
564 grams found in the hotel room. See Id.
Petitioner received a two-level enhancement of his base
offense level for possessing a firearm and a two-level
enhancement of his base offense level for maintaining a
place-the RV-for the purpose of distributing a controlled
substance. Id. Petitioner also received a
three-level reduction of his base offense level for
acceptance of responsibility. Id. In total,
Petitioner received a base offense level of 31, which,
coupled with his criminal history, yielded a guideline range
of 135-168 months in prison. Id. at 5, 14.
response to the Presentence Report, Petitioner moved for an
additional two-level reduction of his base offense level on
the ground that he played only a minor role in the offense
because he acted as a “go-between” when moving
drugs from the woman named Anita or Annette at the hotel to
the buyer. [CR Doc. 31] at 2-3. The United States conceded
this reduction. [CR Doc. 34] at 2. This reduction decreased
Petitioner's base offense level to 29, yielding a
guideline range of 108-135 months in prison. [Doc. 6-2] at
3-4. Petitioner also moved for a variance based on family
circumstances. [CR Doc. 31] at 3-5. The Court rejected his
request for a variance and imposed a sentence of 108
months' incarceration (the low end of the guideline
range) and a supervised release period of four years. [CR
Docs. 35, 36].
appealed on November 3, 2017, but the Tenth Circuit enforced
the waiver of appeal in his plea agreement, dismissing his
appeal on December 27, 2017. United States v. Moises
Eufelio Martinez, Jr., No. 17-2191, [Doc. 01019921245].
He filed the instant Motion to Vacate on September 18, 2018.
[Doc. 1]. He requests that the Court vacate his sentence and
resentence him to a term of 70 months in prison. Id.
at 12, 19.
district court may grant relief under § 2255 if it
determines “that there has been such a denial or
infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral
attack.” 28 U.S.C. § 2255(b) (2018). Pro se
pleadings are interpreted liberally but must comply with the
basic requirements of the Federal Rules of Civil Procedure,
and a district court cannot rewrite a habeas ...