United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on Respondent's Motion to Dismiss Petitioner's Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255 [Doc. 1], as supplemented [Doc. 12]; Respondent's Motion to Dismiss [Doc. 6]; Petitioner's Motions for Judgment on the Pleadings [Docs. 8, 10, 11]; and Petitioner's Motion for an Order requiring the Government file a response to his Motion for Judgment on the Pleadings [Doc. 9]. For the reasons that follow, Respondent's motion to dismiss will be granted and Petitioner's motions will be denied and dismissed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was named as the sole defendant in a one-count bill of indictment returned by the grand jury for this District. The Indictment alleged that on or about March 7, 2010, Petitioner illegally attempted and in fact had reentered the United States after having been deported in violation of 8 U.S.C. § 1326(a) (2006). [Criminal Case No. 1:10-cr-00023, Doc. 1: Indictment]. Petitioner was appointed counsel and entered into a written plea agreement with the Government. The plea agreement informed Petitioner that he faced a statutory maximum of no more than twenty years in prison based on the fact that Petitioner had illegally reentered the United States after having been convicted of an aggravated felony. [ Id., Doc. 15: Plea Agreement].
Petitioner appeared with counsel for his Plea and Rule 11 hearing before U.S. Magistrate Judge Dennis L. Howell. Before beginning the hearing, Judge Howell noted that the plea agreement provided that Petitioner could potentially face a twenty-year term of imprisonment based on reentry after having been convicted of an aggravated felony. As the Magistrate Judge noted, however, the Indictment did not allege that Petitioner had been convicted of an aggravated felony and the violation of 8 U.S.C. § 1326(a) that was alleged in the Indictment carried a sentence of no more than two years in prison. The hearing was continued to allow the parties to address this issue.
When the hearing resumed, Petitioner had decided to forego a plea agreement and enter a plea of guilty as charged. Petitioner was placed under oath and confessed that he was in fact guilty of violating § 1326(a) and that he would waive his right to contest the charge at trial. Petitioner admitted that he and his counsel had discussed the Sentencing Guidelines and how those guidelines might apply to his case. Petitioner's plea of guilty was accepted after the Court found that it was knowingly and voluntarily entered. [ Id., Doc. 46: Transcript of Plea and Rule 11 Hearing].
The U.S. Probation Office prepared a presentence report (PSR) in advance of Petitioner's sentencing hearing. The PSR provided that in August 2006, Petitioner was arrested in Mecklenburg County within the Western District and charged with felony possession with intent to sell or deliver cocaine, carrying a concealed weapon, and underage possession of alcohol. The State voluntarily dismissed the charges and Petitioner was taken into custody by the Bureau of Immigration and Customs Enforcement (ICE). Petitioner was later released pending a removal hearing in the United States Immigration Court in Atlanta, Georgia. Petitioner failed to appear for the hearing and he was subsequently ordered to be removed from the United States. In September 30, 2008, Petitioner was deported at Brownsville, Texas. [ Id., Doc. 26: PSR ¶ 2]. Less than a year later, in March 2009, a United States Border Agent in the United States encountered Petitioner and he was again removed from the United States based on the prior order of removal.
On May 31, 2009, Petitioner was again arrested in Mecklenburg County, this time on charges of driving while impaired, driving while license revoked, underage possession of alcohol, and providing fictitious information to a law enforcement officer. Officials with ICE were notified and a detainer was filed. Petitioner was later removed from the United States. On September 1, 2009, Petitioner was arrested in Spartanburg, South Carolina on a charge of felony trafficking in methamphetamine and he subsequently entered a guilty plea to felony possession with intent to distribute methamphetamine in November 2009, for which he was sentenced to a term of fifteen years in the South Carolina Department of Corrections. The judgment provided that Petitioner would be sentenced to time served and the balance of the fifteen-year term would be suspended. On December 8, 2009, Petitioner was deported with probation to begin upon Petitioner's return to the United States.
On March 6, 2010, Petitioner was stopped by an officer in Asheville, North Carolina. Petitioner provided a revoked driver's license and informed the officer that his name was Efrain Carrillo Majarro. Petitioner was arrested and officers determined that Petitioner had provided a false name and that he had been deported on five prior occasions. Petitioner's federal indictment in the present case followed.
The probation officer calculated a base offense level of 8 and increased Petitioner's offense level by twelve levels based on his prior felony drug trafficking offense in South Carolina. [Id. ¶ 10]. See U.S. Sentencing Guidelines Manual (USSG) § 2L1.1(b)(1)(B). Petitioner's adjusted offense level of 20 was reduced by three levels pursuant to USSG § 3E1.1(a) based upon his acceptance of responsibility, yielding a total offense level of 17.
Based on his criminal history and because the present offense was committed at the time he was on probation for the South Carolina drug trafficking offense, the probation officer calculated a criminal history category of IV. See USSG § 4A1.1(d). Based on Petitioner's offense level and criminal history category, the probation officer recommended a Guidelines range of 51-63 months' imprisonment.
Petitioner's counsel objected to the calculation of Petitioner's criminal history as identified in paragraphs 19-36 of the first revised PSR, contending that those offenses were committed by an individual named Efrain Carrillo Mojarro and not Petitioner. The probation officer responded that Petitioner's fingerprints were obtained following each of the arrests along with a booking photo and the fingerprints and photos belonged to Petitioner. [Id. at 13]. Petitioner's counsel also objected to the finding that Petitioner faced a statutory maximum of twenty years under § 1326(b)(2) because he pled guilty to a violation § 1326(a) which carried a maximum term of only two years. The probation officer noted that Petitioner's Acceptance and Entry of Unwritten Plea form that was signed and filed following his Plea and Rule 11 hearing specifically provided that Petitioner could face a maximum of twenty years under the criminal penalties provided for in § 1326(b)(2). [ Id., Doc. 16 at 4].
On January 21, 2011, Petitioner appeared with counsel for his sentencing hearing. At the hearing, counsel objected to the use of the convictions identified in paragraphs 24 (felony obstruction of justice) and 27 (felony possession with intent to distribute methamphetamine), arguing that these convictions were sustained by an individual named Efrain Carrillo Majorro and were therefore not attributable to the Petitioner. In response, the Government presented evidence from ICE agent Christian Lawrence Reusch. Agent Reusch identified Petitioner and testified that she interviewed him in Spartanburg County in September 2009, and obtained a copy of his fingerprints and a sworn statement in which Petitioner identified himself as Efrain Carrillo. Agent Reusch further testified that immigration documents which were admitted into evidence during the sentencing hearing demonstrated that Petitioner's name was in fact Benito Hernandez Hernandez. In particular, the evidence demonstrated that the fingerprints of Petitioner were linked to numerous aliases, including Efrain Carrillo Majoro.
The Government also presented testimony from Officer Michael Turner of the Spartanburg County Sheriff's Office. Officer Turner testified that he initiated a traffic stop of the Petitioner in September 2009, and after obtaining consent to search the vehicle, discovered several pounds of marijuana and a quantity of crystal methamphetamine. Petitioner was arrested and provided the name of Efrain Carrillo while being booked into the Spartanburg County detention center. Officer Turner testified that he booked Petitioner and he provided an in-court identification naming Petitioner as the individual he arrested in September 2009.
Finally, the Government presented testimony from ICE officer Christine Dablewski. Officer Dablewski testified that during an interview in the Buncombe County Jail in March 2010, Petitioner identified himself as Efrain Carrillo Majarro. Officer Dablewski, however, identified him as Benito Hernandez Hernandez based on his fingerprints and immigration documents, including photographs. Of note, Agent Dablewski matched ...