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Moya v. United States

United States District Court, M.D. North Carolina

March 27, 2017



          Thomas D. Schroeder United States District Judge

         Petitioner, Oscar Salinas Moya, a federal prisoner, has filed a motion seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 87.)[1] Petitioner, in pertinent part, was indicted for, and pled guilty to, conspiracy to distribute 500 grams or more of cocaine hydrochloride, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B), and for the possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. (Docs. 3, 28, and 42; 12/8/2009 Minute Entry.) He was sentenced to 120 months of imprisonment. (Doc. 73.) Petitioner did not appeal. (Doc. 87, ¶ 8.) He then filed the instant motion and a supporting memorandum. (Docs. 87, 88.) The Government filed a response (Doc. 100), and Petitioner filed a reply (Doc. 104) and a motion for an evidentiary hearing (Doc. 105). The parties also filed supplemental briefing pursuant to this court's order. (Docs. 119, 121, 124, and 125.) Petitioner's § 2255 motion is now ready for consideration.


         A. Petitioner's Claim

         Petitioner raises a single claim that he is entitled to relief because he is actually innocent of aiding and abetting the possession of a firearm in furtherance of a drug trafficking crime as set forth in 18 U.S.C. §§ 924(c) and 2. (Doc. 88 at 12.) As explained below, this claim is without merit.

         B. Facts

         1. Rule 11 Hearing

         At his Rule 11 hearing, Petitioner was informed of the relevant elements of the charge of possession of a firearm in furtherance of a drug trafficking crime and of aiding and abetting that offense. Specifically, the court informed Petitioner:

In Count Three, you are charged with a violation of Title 18 of the U.S. Code, Section 924(c)(1)(A)(i) and aiding and abetting. The Government would be required to prove that on or about August 21, 2009, in furtherance of a drug trafficking crime for which you may be prosecuted in a court of the United States, that is, the crime charged in Count One, conspiracy to distribute cocaine hydrochloride in violation of Title 21 of the U.S. Code, Section 846 and in violation of Title 21 of the U.S. Code, Section 841(a)(1), you knowingly possessed firearms, that is, an Astra .45-caliber pistol, Model A-100, Serial Number W1650, and a Smith & Wesson .40-caliber pistol, Model SW40VE, Serial Number PBM6644.
You are also charged with aiding and abetting. The Government must show that you aided, abetted, counseled, commanded, induced, or procured the commission of this offense or willfully caused an act to be done which, if directly performed by you, would constitute this offense.

(Doc. 79 at 20-21.)

         During that hearing, defense counsel reviewed the plea agreement and stated that Petitioner was “admitting that it was foreseeable to him as an aider and abettor that the two other participants in the conspiracy would have firearms with them during the drug trafficking offense.” (Id. at 9.) The court later asked Petitioner if “that [was his] understanding of the terms of [his] plea agreement?” and Petitioner stated “Yes.” (Id. at 10.)

         During this same plea hearing, defense counsel also stated that Petitioner was pleading guilty to the 18 U.S.C. § 924(c) count based on aiding and abetting, and added:

Yes, sir, Your Honor, and the factual basis supports the plea to Count One and the conspiracy. I would simply add with regard to Count Three that [Petitioner] admits that he aided and abetted the possession of the firearms by the other two individuals knowing that it was foreseeable they would be there. Although he did not actually possess them, he is certainly admitting to aiding and abetting and the reasonable foreseeability that they would be found there prior to the drug transaction.

(Id. at 21-22.)

         Petitioner told the court, under oath, that he understood all of the elements of these offenses; that he was pleading guilty to these offenses; that he was pleading guilty because he was in fact guilty; and that he understood that by pleading guilty, he was admitting each of the elements of the offenses. (Id. at 21.) The court then found that Petitioner was competent and capable of entering an informed plea; that he was aware of the nature of the charges and the consequences of the plea; and that his plea of guilty was knowing and voluntary. (Id.)

         The court also had defense counsel review the factual basis with Petitioner along with the interpreter, Dr. Ernest Lunsford. (Id. at 23.) That factual basis can be adequately summarized as follows. On August 20, 2009, Petitioner agreed to sell one kilogram of cocaine hydrochloride to an undercover detective in Greensboro. (Doc. 28 at 1.) Petitioner served as a middle man for the transaction, and when the source of the cocaine arrived, the source aborted the transaction after observing police undercover cars in the area. (Id. at 1-2.) That night, Petitioner contacted the undercover detective to ask if he was still interested in purchasing cocaine. (Id. at 2.) Petitioner explained that another source from Raleigh was willing to bring a kilogram of cocaine to Greensboro the next morning. (Id.)

         On August 21, 2009, Petitioner met the detective at a McDonald's restaurant. (Id. at 3.) After Petitioner saw and counted the buy money, he called the source who arrived in a Mercury Marquis. (Id. at 3-4.) The passenger of the Marquis - the source and one of Petitioner's co-conspirators - got out of the car and removed a package from the trunk to the back seat. (Id.) Petitioner then went to the back seat of the Marquis with a back pack, filled it with one kilogram of cocaine, and returned to the detective. (Id.) At this time, nearby officers moved in and made the arrests. (Id. at 4.)

         The investigation revealed that the source was Herminio Alcantar-Ramirez. (Id. at 4-5.) Alcantar-Ramirez had provided a gun to the driver of the Marquis, Javier Sanchez-Garcia. (Id.) At the time of arrest, officers witnessed Sanchez-Garcia bending over as if to retrieve something from under the seat in front of him, initially refusing to obey the officers' commands to show his hands. (Id. at 4.) After Sanchez-Garcia complied with the officers' commands, the officers found a loaded Astra .45 caliber pistol under the driver's seat. (Id. at 4.) The officers also found a loaded Smith & Wesson .40 caliber pistol in the glove box in front of Alcantar-Ramirez. (Id.) After the arrest, Petitioner admitted that he was going to receive $500 from Alcantar-Ramirez for arranging the sale. (Id. at 5.)

         When talking to the police after his arrest, Sanchez-Garcia waived his Miranda rights in writing. (Id.) He explained that, on August 20 (i.e., the day before the foregoing transaction occurred), Alcantar-Ramirez put a bag containing cocaine in the trunk of the car and gave Sanchez-Garcia a loaded gun. (Id.) Alcantar-Ramirez put another gun in the glove box and said that “black people like to rob.” (Id.) Sanchez-Garcia noted that he put the gun in his waistband originally, but when he saw the police, placed the gun under the seat, fearing that the police would shoot him if the police found the gun on his person. (Id.)

         After Petitioner reviewed the factual basis with counsel, defense counsel said that Petitioner had no objections to the factual basis. (Doc. 79 at 23.) The court consequently found that Petitioner's guilty plea was supported by an independent factual basis, satisfying each of the essential elements of the indictment. (Id.) The court also explained to Petitioner that a written presentence report (“PSR”) would be prepared prior to sentencing; that Petitioner would be asked to provide information for it; that his attorney could be present for that interview if Petitioner so desired; and that Petitioner would have the opportunity to read the PSR and file any objections prior to sentencing. (Id. at 23-24.)

         2. Sentencing Hearing

         Subsequently, a PSR was prepared. Defense counsel furnished a signed statement to the U.S. Probation Office from Petitioner regarding his acceptance of responsibility, as follows:

On August 21, 2009, I conspired with my two co-defendants named in this case to sell cocaine. The transaction was to begin at the McDonald's restaurant located on the corner of High Point and Holden roads in Greensboro. My two co-defendants were bringing the cocaine for the deal that day. Further, I had personal knowledge that, as a part of this drug transaction, my co-defendants would be bringing a firearm or firearms with them to protect the cocaine. I am truly sorry for what I did. I accept responsibility for my role in the ...

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