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Sarabia v. United States

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

June 10, 2019

TOMAS ESTRADA SARABIA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leon Jordan United States District Judge.

         Federal 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].[1] The United States has responded in opposition to the § 2255 motion [Doc. 3 ], and Petitioner has replied [Doc. 9].

         The 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.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         On 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].

         On 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].

         At 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.].

         In the 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].

         The 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].

         Petitioner 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].

         Two 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].

         As a factual basis for his guilty pleas, Petitioner stipulated to the following facts:

         From 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].

         From 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.

         On 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 co-defendant's bedroom.

         II. STANDARD OF REVIEW

         This 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.

         When a 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).

         To 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).

         III. DISCUSSION

         Petitioner 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).

         A. ...


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