United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES, District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, (Doc. No. 1), and on the Government's Response to Petitioner's Motion to Vacate, (Doc. No. 5).
1. Offense Conduct
On April 8, 2010, numerous law enforcement agencies, including the Department of Homeland Security, Immigration and Customs Enforcement, and the North Carolina State Bureau of Investigation, began an investigation into the drug trafficking activities of Petitioner. The investigation led to observations of 12 controlled purchases of cocaine, totaling more than two kilograms, and two controlled purchases of methamphetamine, totaling 72 grams, from Petitioner and his associates, including Norberto Rivera Aguilar. (Criminal Case No. 5:11-cr-53, Doc. No. 69 at 5: PSR). Throughout the investigation, law enforcement officials and confidential informants ("Cis") observed Petitioner receiving cocaine and methamphetamine from couriers and then providing it to customers or Aguilar for distribution. (Id.).
According to a CI, on July 18, 2011, Petitioner received one ounce of cocaine and one ounce of methamphetamine from a courier. (Id. at 7). The courier was observed at Petitioner's residence at the time the transaction took place. (Id.). On August 22, 2011, law enforcement officials executed a search warrant on Petitioner's residence. (Id.). During the search, officials found $5, 000 cash, a digital scale, a kilogram press, two handguns, and a rifle. (Id.). Following the search, Petitioner was arrested. (Id.). Ultimately, the investigation showed that Petitioner was Aguilar's cocaine supplier. (Id. at 8). Petitioner supplied at least 647 grams of cocaine and was involved in at least three undercover drug transactions totaling at least 112 grams of cocaine and 28 grams of methamphetamine. (Id. at 9). In addition, Petitioner was intercepted on wiretaps discussing drug transactions and discussing wiring money back to a drug source in Mexico. (Id.).
2. Procedural History
On September 20, 2011, a grand jury in the Western District of North Carolina charged Petitioner, along with four codefendants, with conspiracy to possess with intent to distribute five kilograms or more of cocaine, and 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). (Id., Doc. No. 30: Indictment). Petitioner was also solely charged with knowingly and unlawfully using and carrying one or more firearms during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). (Id.). Petitioner entered into a plea agreement in which he agreed to plead guilty to one count of conspiring to possess with intent to distribute between 500 grams and two kilograms of cocaine and one count of knowingly and unlawfully using and carrying one or more firearms during and in relation to a drug tracking crime. (Id., Doc. No. 60 at 1: Plea Agreement). As part of the agreement, Petitioner waived his right to appeal or attack his conviction and sentence in a post-conviction proceeding, with the exception of claims of ineffective assistance of counsel or prosecutorial misconduct. (Id. at 4-5).
On December 15, 2011, Petitioner pled guilty before U.S. Magistrate Judge David S. Cayer. (Id., Doc. No. 62 at 1: Acceptance and Entry of Guilty Plea). During his plea hearing, conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure, Petitioner was placed under oath, and Judge Cayer explained to him the charges to which he was pleading guilty. (Id.). In response, Petitioner agreed that he was in fact guilty of these charges. (Id.). Petitioner affirmed that he had discussed with his attorney the consequences that pleading guilty would have on his immigration status. (Id.). Petitioner also acknowledged that his guilty plea may "result in deportation or removal from the United States." (Id. at 2). Petitioner affirmed that he understood his rights to plead not guilty and stand trial. (Id. at 2-3). The Government summarized the key terms of Petitioner's plea agreement. (Id. at 3). Petitioner affirmed that he understood the terms of his agreement and that he agreed with those terms. (Id.). This Court asked if Petitioner had been "threatened, intimidated, or forced... to enter [a] guilty plea, " to which Petitioner responded, "no." (Id.). At the conclusion of the Rule 11 hearing, this Court found Petitioner's plea to be knowingly and voluntary made and accepted it. (Id. at 4).
In preparation for sentencing, a probation officer prepared a presentence investigation report ("PSR"), recommending an advisory guideline term of 60 months for the drug conspiracy count and a mandatory consecutive term of 60 months for the firearms count. (Id., Doc. No. 69 at 15). In calculating the offense level, the probation officer found that Petitioner was a base level 26 and applied a reduction of three levels due to the acceptance of responsibility, resulting in a total offense level of 23 which, when coupled with Petitioner's criminal history category of I, resulted in a guidelines range of 46 to 57 months. (Id.). Because the statutory mandatory-minimum term of imprisonment for Petitioner's drug conviction was five years, however, the guidelines range became 60 months. (Id.).
At his sentencing hearing on February 4, 2013, this Court again inquired whether Petitioner understood the guilty plea he had entered into before the magistrate judge. (Id., Doc. No. 127 at 2: Tr. of Sentencing). This Court asked Petitioner whether he was pleading guilty to both counts freely and voluntarily, to which Petitioner responded, "yes." (Id.). Petitioner answered affirmatively that he was pleased with the services of his attorney, and offered no objection to the stipulation that there was a factual basis to support the guilty plea for both counts. (Id. at 2-3). This Court then informed Petitioner that upon his release from prison he would be turned over to a duly authorized immigration official for possible deportation. (Id. at 9). This Court inquired whether Petitioner was aware of the potential consequences of his guilty plea and conviction in terms of deportation. (Id. at 9-10). Petitioner agreed that he was aware of the consequences his guilty plea had on his immigration status. (Id.).
Petitioner was ultimately sentenced to a total of 120 months in prison, followed by 48 months of supervised release. (Id., Doc. No. 95: Judgment). This Court entered judgment on February 14, 2013, and Petitioner did not appeal. (Id.). In his motion to vacate filed on February 3, 2014, Petitioner contends that his defense counsel was ineffective for: (1) advising and permitting the entry of an unknowing and involuntary plea to the second count, 18 U.S.C. § 924(c); (2) allowing a guilty plea to be entered to the second count and thus forfeiting Petitioner's ability to qualify for a "safety valve" reduction; and (3) failing to inform Petitioner of his rights under the Vienna Convention on Consular Relations ("VCCR") to speak to the Mexican Consulate and to adequately explain the immigration consequences of his guilty plea. On June 24, 2013, this Court entered an Order for the Government to respond and, after receiving an extension of time, the Government filed its Response on October 24, 2014.
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings..." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter and the Government's response, the Court finds that the argument presented by the Petitioner can be resolved without an ...