United States District Court, E.D. Tennessee, Greeneville
Jordan United States District Judge.
inmate Tomas Estrada Sarabia (“Petitioner”)
brings this pro se motion to vacate, set aside or correct
sentence under 28 U.S.C. § 2255, challenging his
convictions for cocaine conspiracy and firearms offenses,
entered pursuant to guilty pleas [Doc. 1]. The United States
has responded in opposition to the § 2255 motion [Doc. 3
], and Petitioner has replied [Doc. 9].
Court finds the materials thus submitted, together with the
record of the underlying criminal case, conclusively show
that Petitioner is not entitled to relief under § 2255.
Accordingly, the Court will decide the motion to vacate
without an evidentiary hearing. Ewing v. United
States, 651 Fed.Appx. 405, 409 (6th Cir. 2016)
(explaining that an evidentiary hearing is unnecessary where
allegations are “contradicted by the record, inherently
incredible, or conclusions rather than statements of
fact” (quoting Arredondo v. United States, 178
F.3d 778, 782 (6th Cir. 1999)); see also United
States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993).
For the reasons which follow, the Court finds that
Petitioner's § 2255 motion is without merit and it
will be DENIED and
DISMISSED with prejudice.
PROCEDURAL AND FACTUAL BACKGROUND
October 14, 2010, a federal grand jury filed a 107-count
indictment charging Petitioner and 35 co-defendants with
various offenses [Doc. 3, No. 2:10-CR-110]. A superseding
indictment was returned on January 11, 2011, adding 36
additional counts [Doc. 214, No. 2:10-CR-110]. Petitioner was
charged in 35 of those counts with firearms-related offenses
(5 counts) and drug-trafficking offenses (30 counts)
[Id., No. 2:10-CR-110]. At his arraignment,
Petitioner established that he needed a Spanish interpreter
[Doc. 4, No. 2:10-CR-110].
August 3, 2011, Petitioner agreed to plead guilty to one
count of conspiring to distribute and possess with the intent
to distribute 5 kilograms or more of cocaine, in violation of
21 U.S.C. §§ 841(b)(1)(A) and 846 (Count 1), and
two counts of possession of a firearm in furtherance of drug
trafficking crimes, in violation of 18 U.S.C.§
924(c)(1)(A) (Counts 67 and 93) [Doc. 460 ¶ 1, No.
2:10-CR-110]. The remaining counts were to be dismissed [Doc.
460 ¶2, No. 2:10-CR-110].
Petitioner's guilty plea hearing, a presentence
investigation report (“PSR”) was ordered and
sentencing was set for January 10, 2012 [Doc. 473, No.
2:10-CR-110]. Sentencing was continued four times and,
ultimately, was scheduled for November 27, 2012 [Docs. 683,
834, 994, 1057, Case 2:10-CR-110.].
PSR, the probation officer found that, for the cocaine
conspiracy, Petitioner's base offense level was 34,
pursuant to U.S.S.G. § 2D1.1(c)(3) [PSR ¶ 58],
based on a stipulated quantity for which Petitioner's was
held accountable of at least 160 kilograms of marijuana and
45 kilograms of cocaine [PSR ¶ 58]. Those drug
quantities converted to a marijuana equivalent of 9, 160
kilograms [PSR ¶ 58]. Three levels were added, pursuant
to U.S.S.G. § 3B1.1, for Petitioner's managerial or
supervisory role in the conspiracy [PSR ¶ 61]. An
additional two levels for Petitioner's use of a minor to
participate in the conspiracy, U.S.S.G. § 3B1.4, led to
an adjusted offense level of 39 (34 3 2 = 39) [PSR
¶¶ 62, 64]. Subtracting three levels for acceptance
of responsibility resulted in a total offense level of 36,
which, combined with Petitioner's criminal history
category of III, resulted in an advisory guideline range on
the conspiracy count of 235 to 293 months [PSR ¶¶
56, 65, 80, 94-95].
statutory mandatory consecutive 60-month sentence on the
Petitioner's first conviction for possession of a firearm
in furtherance of a drug trafficking crime (Count 67), added
to the statutory mandatory consecutive 300-month sentence for
the second such offense (Count 93), resulted in a net
guideline sentence of 595 to 653 months (235 months 60
months 300 months = 595 months; 293 months 60 months �
months = 653 months) [PSR ¶¶ 94-95].
objected to the two-level enhancement under U.S.S.G. §
3B1.4 (using a minor to participate in acts of conspiracy),
but the objection was denied as moot [Doc. 1062 at 5 n.2 and
1064, No. 2:10-CR-110]. The Court varied downward on Count
One and imposed the statutory mandatory minimum 480-month
sentence (120 months on Count One, 60 months on Count 67, and
300 months on Count 93, all terms to be served
consecutively), which was significantly below the effective
guidelines range of 595-653 months [Doc. 1064, No.
10-CR-110]. The 480-month total sentence was the exact
sentence requested by Petitioner in his Sentencing Memorandum
[Doc. 1062, No. 2:10-CR-110] and was also the lowest possible
sentence he could have received, absent a government motion
for a downward departure. Kimbrough v. United
States, 552 U.S. 85, 108 (2007) (holding that district
courts are constrained by mandatory minimums in the
imposition of sentences). The remaining counts were dismissed
on the government's motion [Doc. 1062, No. 2:10-CR-110].
notices of appeal were filed-the first one by counsel and the
second by Petitioner acting pro se [Docs. 1067 and 1068, No.
2:10-CR-110]. The sole issue presented on direct appeal was
whether this Court committed plain error in failing to
establish a factual basis for Petitioner's pleas to the
firearms counts, given his dispute with the factual basis as
articulated by the prosecutor at the guilty plea hearing
[Doc. 1153, No. 2:10-CR-110]. The Sixth Circuit found no
merit to the claim and affirmed the judgment on January 13,
2015 [Doc. 1153, No. 2:10-CR-110]. Petitioner filed this
timely § 2255 motion on April 13, 2016 [Doc. 1].
factual basis for his guilty pleas, Petitioner stipulated to
the following facts:
May of 2008 to the end of October 2010, Petitioner was the
primary source and supplier of cocaine and marijuana involved
in the conspiracy to distribute those drugs [Doc. 460
¶4(b), Case. No. 2:10-CR-110]. Petitioner obtained
kilograms of drugs (acquiring a kilogram of cocaine every two
weeks), he personally sold cocaine, and he distributed the
remaining cocaine to up to 50 other co-conspirators who then
redistributed it [Doc. 460 ¶ 4(b) and (c), No.
2:10-CR-110]. The total drugs distributed during the
conspiracy was at least fifteen but less than fifty kilograms
of cocaine [Doc. 460 ¶ 4(a), No. 2:10-CR-110].
November 2009 to July 2010, law enforcement officials
arranged for confidential informants to participate in more
than fifty controlled drug transactions, with eleven
transactions occurring between the informant and Petitioner
himself. The informants purchased over 500 grams of cocaine
from Petitioner or individuals under his direction. During
two recorded transactions, the first on June 9, 2010, and the
second on August 13, 2010, Petitioner displayed firearms to
the informant. During the first transaction, Petitioner
displayed five firearms-one of which was a 9-millimeter
pistol, a weapon Petitioner routinely carried. The firearms
displayed during the second recorded transaction were a
loaded, semi-automatic pistol and a loaded revolver, and the
transaction was also captured on video. Authorized wiretapped
telephone conversations between Petitioner and others
confirmed that Petitioner was conspiring to distribute
cocaine and marijuana.
October 22, 2010, law enforcement officials executed thirteen
search warrants on Petitioner's residence and other
locations associated with the conspiracy, seizing a total of
3.5 kilograms of cocaine and 200 pounds of marijuana. The
search of Petitioner's residence uncovered fifteen
baggies of cocaine (fourteen located in a cooler and one in
Petitioner's bedroom) that together yielded .5 kilogram
of cocaine; a .25 caliber pistol and over $7, 500 in cash in
Petitioner's bedroom; and a 9-millimeter pistol,
ammunition, digital scales, and drug ledgers in a
STANDARD OF REVIEW
Court must vacate and set aside Petitioner's sentence if
it finds that “the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized
by law or otherwise open to collateral attack, or 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.
Under Rule 4 of the Rules Governing Section 2255 Proceedings,
the Court is to consider initially whether the face of the
motion itself, together with the annexed exhibits and prior
proceedings in the case, reveal the movant is not entitled to
relief. If it plainly appears the movant is not entitled to
relief, the Court may summarily dismiss the §2255 motion
under Rule 4.
defendant files a § 2255 motion, he must set forth facts
which entitle him to relief. Green v. Wingo, 454
F.2d 52, 53 (6th Cir. 1972); O'Malley v. United
States, 285 F.2d 733, 735 (6th Cir. 1961).
“Conclusions, not substantiated by allegations of fact
with some probability of verity, are not sufficient to
warrant a hearing.” O'Malley, 285 F.2d at
735 (citations omitted). A motion that merely states general
conclusions of law without substantiating allegations with
facts is without legal merit. Loum v. Underwood, 262
F.2d 866, 867 (6th Cir. 1959); United States v.
Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996). In
order to obtain relief under § 2255, a petitioner must
clear a considerably higher hurdle than he would have to
surmount on direct appeal. United States v. Frady,
456 U.S. 152 (1982).
warrant relief under 28 U.S.C. § 2255 because of
constitutional error, the error must be one of constitutional
magnitude which had a substantial and injurious effect or
influence on the proceedings. Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (citation omitted) (§ 2254
case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th
Cir. 1994); see also United States v. Cappas, 29
F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to
a § 2255 motion). If the sentencing court lacked
jurisdiction, then the conviction is void and must be set
aside. Williams v. United States, 582 F.2d 1039,
1041(6th Cir. 1978).
asserts three grounds for relief in his motion, all premised
on claims of ineffective assistance of counsel. Petitioner
claims that counsel coerced him to plead guilty [Doc. 1 at
4]. Petitioner next claims counsel “fail[ed] to advise
[him of] the consequences of [his] plea agreement with an
uncertified interpreter” [Id. at 5].
Petitioner maintains third that counsel failed to raise a
claim under the authority of Alleyne v. United
States, 570 U.S. 95 (2013).