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Salgado v. United States

United States District Court, E.D. Tennessee, Greeneville

April 17, 2018

JESUS SALGADO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          RONNIE GREER UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Doc. 109].[1] The United States responded in opposition [Doc. 110]. Petitioner did not reply to the Government's response. For the reasons discussed below, the Court finds that Petitioner's § 2255 motion is without merit and will DENY and DISMISS the motion WITH PREJUDICE. Because the record conclusively establishes that Petitioner is not entitled to collateral relief on his claims, the Court finds it unnecessary to hold an evidentiary hearing. See Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.

         I. BACKGROUND

         A criminal complaint was filed against Petitioner and two codefendants on August 2, 2010, followed by an eight-count federal grand jury indictment on August 10, 2010 [Docs. 1, 20]. The indictment charged Petitioner in Count 1 with conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine base (“crack”) in violation of 21 U.S.C. §§ 846 and 841; in Count 2 with aiding and abetting possession of a firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2; in Count 3 with aiding and abetting the possession of 500 grams or more of cocaine base (crack) with intent to distribute in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(B), and 18 U.S.C. § 2; in Count 4, with aiding and abetting possession of a firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2; in Count 5 with being an alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A) and § 924(a)(2); and in Count 6 with being an alien in possession of ammunition in violation of 18 U.S.C. § 922(g)(5)(A) and § 924(a)(2) [Doc. 20].

         Some two months later, the parties negotiated-and Petitioner signed-a plea agreement under which he would plead guilty to the lesser included offense related to Count 1, to wit, conspiracy to distribute and to possess with the intent to distribute 500 grams or more of cocaine, and to Count 2, the possession of a firearm in furtherance of a drug trafficking crime, as charged in the indictment [Doc. 35, Plea Agreement, ¶1]. Under the plea-agreement provisions, Petitioner stipulated that a conservative estimate of the amount of drugs he conspired to distribute or possessed with the intent to distribute was 3.5 kilograms of cocaine and that the .32 caliber pistol discovered by law enforcement agents during a search was possessed in furtherance of drug trafficking [Id., Plea Agreement, ¶ 5(f)]. In another provision, Petitioner waived his right to file a § 2255 motion or a collateral attack on his conviction or sentence, excluding claims of ineffective assistance of counsel or prosecutorial misconduct unknown to him by the time of entry of the judgment [Id., Plea Agreement, ¶ 15(b)].

         Seven days later, on October 14, 2010, Petitioner pled guilty to those two offenses [Doc. 40]. The Court accepted his guilty pleas and referred the matter to the United States Probation Office for a Presentence Investigation Report (PSR) [Id.].

         Using the drug quantity stipulated in the plea agreement, the probation officer who prepared the PSR noted that Petitioner's base offense level was thirty [PSR ¶ 27]. The probation officer determined that Petitioner's offense level should be increased by two levels under § 3B1.1(b) of the 2010 version of the United States Sentencing Guidelines based on Petitioner's role as a manager or supervisor [Id. ¶ 30]. The probation officer found the increase warranted based on evidence showing that Petitioner paid a codefendant to operate the stash house and to act as a runner, that Petitioner earned a greater share of the profits from the conspiracy than his codefendants, and that he was paying the utilities for the stash house [Id.]. A three-level reduction for acceptance of responsibility yielded a total offense level of twenty-nine, which, along with a criminal history category of II, resulted in an advisory Guidelines range of 97 to 121 months [Id. ¶¶ 33, 44, 58]. However, because the firearms offense carried a 60-month consecutive term of imprisonment, Petitioner's effective Guidelines range increased to 157 to 181 months [Id. ¶ 58].

         The government moved for a two-level downward departure of Petitioner's base level offense pursuant to 18 U.S.C. §3553(e) and § 5K1.1 of the Guidelines, recommending a reduction in the Guidelines range to 108 to 135 months [Doc. 180 (sealed)]. The Court granted the government's motion; dismissed the remaining counts upon oral motion of the government; and imposed a net 108-month term of imprisonment, the lowest sentence in Petitioner's Guidelines range (as adjusted for the downward departure) [Docs. 85, 90 (Judgment)].

         Petitioner did not file a direct appeal. Instead, he moved for a sentence reduction based on Amendment 782 of the U.S. Sentencing Guidelines, which lowered the base offense level for many drug offenses [Doc. 95]. The Court granted Petitioner's motion and reduced his crack conspiracy sentence from 48 months to 38 months, for a new net sentence of 98 months [Doc. 113].

         After filing his sentence-reduction motion, Petitioner submitted this pro se § 2255 motion to vacate, claiming that, under Johnson v. United States, 135 S.Ct. 2551 (2015), he should not have received a five-year sentence for the offense of possession of a firearm in furtherance of a drug trafficking crime [Doc. 109].

         II. STANDARD OF REVIEW

         To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). A petitioner “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         III. DISCUSSION

         A. ...


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