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Ortiz v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 1, 2015

RAUL ORTIZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 3:08-cr-00235-MR

MEMORANDUM OF DECISION AND ORDER

MARTIN REIDINGER, District Judge.

THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1].

I. BACKGROUND

A. Offense Conduct

In January 2008, detectives with the Waxhaw Police Department and the Monroe Police Department launched a joint investigation into the Petitioner's drug-trafficking activities. [Criminal Case No. 3:08-cr-00235-MR ("CR") Doc. 17: Gov't's Response to Motion to Suppress]. In February 2008, a confidential source arranged a controlled buy during which an undercover officer purchased fifteen grams of powder cocaine from the Petitioner. [CR Doc. 36: Presentence Report ("PSR") at 3]. During the controlled buy, the Petitioner informed the officer that he could access quantities of cocaine up to one kilogram for future purchases. [Id.]. In March 2008, a confidential informant met the Petitioner at his residence for another controlled purchase of cocaine. [Id. at 4]. During this transaction, the Petitioner retrieved 167.3 grams of cocaine from a storage location in his garage, weighed it on his scales, and accepted cash from the informant in exchange for the drugs. [Id.]. During the transaction, the Petitioner wore a handgun in the waistband of his pants. [Id.]. Following completion of the deal, the police arrived on scene to arrest the Petitioner. [Id.]. The Petitioner attempted to flee the residence and ditch his drug proceeds in the yard. [Id.]. Officers apprehended the Petitioner and placed him under arrest. [Id.]. A subsequent search of the Petitioner's home produced an additional 236.8 grams of cocaine, 49 grams of marijuana, $700 in cash, digital scales, and assorted drug paraphernalia. [Id.]. During the Petitioner's interview with law enforcement officers, he admitted to selling approximately 144 kilograms of powder cocaine at a cost of tens of thousands of dollars and also stated that he carried a gun for protection. [Id.].

B. Procedural History

On November 19, 2008, the grand jury in this District charged the Petitioner by way of a Bill of Indictment with one count of conspiracy to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) ("Count One"); two counts of distributing and possessing with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) ("Counts Two and Three"); one count of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) ("Count Four"); and one count of using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count Five"). [CR Doc. 1]. A Superseding Bill of Indictment was returned on February 18, 2009, which altered the dates of the conspiracy alleged in Count One but charged the Petitioner with the same substantive counts. [CR Doc. 18].

At the Petitioner's initial appearance on December 5, 2008, attorney Aaron E. Michel was appointed to represent him. On January 30, 2009, counsel for the Petitioner filed a motion to suppress statements that the Petitioner had made to law enforcement officers after his initial arrest in March 2008, arguing that such statements were coerced and involuntary in violation of the Fifth Amendment and therefore inadmissible at trial. [CR Doc. 13: Motion to Suppress]. On March 4, 2009, the Honorable David C. Keesler, United States Magistrate Judge, conducted a hearing on the Petitioner's motion to suppress. [CR Doc. 23: Transcript of Suppression Hearing]. At that hearing, Officer David McCallister of the Monroe Police Department testified that he was involved in the investigation of Petitioner's drug activities and was present during the March 2008 controlled buy. [Id. at 8]. Officer McCallister testified that he witnessed Sergeant Watinia Goforth advise the Petitioner that he was under arrest and read him his Miranda rights while still at the Petitioner's house. [Id. at 10-12]. Officer McCallister and Sergeant Goforth both testified that a waiver of Miranda rights was subsequently obtained from the Petitioner at the police station prior to Petitioner's providing statements concerning his drug trafficking activities. [Id. at 13-15, 37-43].

The Petitioner also testified at the suppression hearing concerning the voluntariness of his statements. [Id. at 55, 65]. During cross-examination, the Petitioner acknowledged that the statements he had made to the officers were "truthful" and that he had signed a written account of the statement after it was typed up by Sergeant Goforth. [Id. at 63-65]. Following the hearing, on March 9, 2009, the Magistrate Judge entered a Memorandum and Recommendation that the motion should be denied. [CR Doc. 20: Memorandum and Recommendation].

On March 13, 2009, attorney Matthew Pruden made an appearance on behalf of the Petitioner and moved to be substituted as counsel of record. [CR Doc. 21]. In his motion, Mr. Pruden stated that he had been retained by the Petitioner to take the place of court-appointed counsel, Aaron Michel. The Court granted the motion for substitution on March 24, 2009. [CR Doc. 22].

The Petitioner did not file any objections to the Magistrate Judge's recommendation regarding the suppression motion, and on March 30, 2009, this Court accepted that recommendation and denied Petitioner's motion to suppress. [CR Doc. 24: Order].

Two days later, on April 1, 2009, the Petitioner entered a straight-up guilty plea to Counts Two through Five of the Superseding Bill of Indictment, planning to proceed to trial on Count One. [CR Doc. 48: Transcript of Rule 11 Hearing at 3, 18]. At that time, Judge Keesler conducted a plea hearing and colloquy pursuant to Federal Rule of Criminal Procedure 11. [Id. at 2-23]. During the plea hearing, the Petitioner affirmed under oath: that he understood the charges to which he was pleading guilty, as well as the maximum penalties that he faced; that he was pleading guilty because he was in fact guilty of the offenses charged in Counts Two, Three, Four and Five of the Superseding Bill of Indictment; that no one had threatened, intimidated or forced him to plead guilty; that no one had made him any promises of leniency or a light sentence or otherwise induced him to plead guilty; that he had had sufficient time to discuss with his attorney possible defenses to the charges and was satisfied with the services of his attorney; and that he had heard and understood all parts of the proceeding and still desired to plead guilty. [Id. at 9-19]. Counsel for the Petitioner also acknowledged to the Court that he had reviewed the consequences of the guilty plea with the Petitioner and believed that the Petitioner knew what he was doing. [Id. at 19-21]. At the conclusion of the hearing, Judge Keesler accepted the Petitioner's guilty plea as having been knowingly and voluntary made. [Id. at 21; see also CR Doc. 26: Entry and Acceptance of Guilty Plea].

On April 8, 2009, one week after the Petitioner's guilty plea to Counts Two through Five, the Government moved to dismiss the drug conspiracy charge stated in Count One of the Superseding Bill of Indictment. [CR Doc. 28: Motion to Dismiss]. That same day, the Court granted the Government's motion. [CR Doc. 29: Order].

Following entry of the Petitioner's guilty plea, the probation office prepared a presentence report ("PSR"). [CR Doc 36: PSR]. With respect to the possession counts, the probation officer recommended a base offense level of 36, based on the Petitioner possessing a total amount of 144 kilograms of powder cocaine and 49 grams of marijuana. [Id. at 5]. After reducing Petitioner's offense level by three levels for acceptances of responsibility, the probation officer recommended a total offense level of 33, which, when combined with a criminal history category of III, yielded an advisory Sentencing Guidelines range of imprisonment of between 168 and 210 months, plus a mandatory consecutive sentence of five years for Count Five. [Id. at 6, 9, 16]. The Petitioner filed written objections to the PSR, specifically objecting to the drug-quantity determination of 144 kilograms of cocaine. [CR Doc. 35: Response to Gov't's Objections to PSR].

The Court conducted the Petitioner's sentencing hearing on February 3, 2010. [CR Doc. 49: Sentencing Transcript]. At the beginning of the hearing, the Petitioner affirmed that he was pleading guilty knowingly and voluntarily; that he was, in fact, guilty of the offenses charged in Counts Two, Three, Four and Five; and that his plea was not the result of any force, threat, or promise. [Id. at 3-5].

In response to the Petitioner's objection to the drug quantity attributed to him in the PSR, the Government called Officer McCallister to testify. Officer McCallister testified that during the post-arrest interview, the Petitioner provided details regarding his customers, as well as local cocaine suppliers, distributors, and dealers with whom he associated. [Id. at 12-15]. Officer McCallister testified that when the Petitioner was asked about his drug sales, he informed the officers that he had sold ten kilograms of cocaine per week for three months, and three kilograms of cocaine per week for two more months. [Id. at 14-15]. During the interview, Officer McCallister created a diagram of the Petitioner's drug sales, but mistakenly calculated the total amount of drugs sold as 148 kilograms. Nevertheless, Officer McCallister testified, the Petitioner agreed during his interview that the information contained in the diagram was "a fair representation [and] accurate." [Id. at 15].[1]

The Government also presented the notes taken by Sergeant Goforth during the March 20 interview. [Id. at 16-18]. Officer McCallister testified that Sergeant Goforth had printed the typed notes after the Petitioner finished making his statement and that the Petitioner had reviewed and signed the typed statement, confirming the information he had just provided. [Id.].

The Government also called Javier Villarreal, a Monroe police officer, to testify at the sentencing hearing. [Id. at 23-24]. Officer Villarreal testified that he was involved in the Petitioner's arrest at the time the Petitioner was taken into federal custody. [Id. at 22]. Officer Villarreal testified that another officer advised Petitioner at that time of his Miranda rights, and thereafter Petitioner indicated that he wanted to talk with Officer Villarreal. [Id.]. According to Officer Villarreal's testimony, during his conversation with the Petitioner, the Petitioner provided him the name of his supplier, an individual named "Juan, " and also gave him a list of people to whom he had provided drugs. [Id. at 23]. The Petitioner told Officer Villareal that he had ...


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