United States District Court, E.D. North Carolina, Eastern Division
C. DEVER III Chief United States District Judge.
16, 2016, Jamie Lopez Contreras ("Contreras") moved
pursuant to 18 U.S.C. § 3582(c)(2), U.S.S.G.
§1B1.10, and Amendment 782 for a sentence reduction p.E.
152]. On October 24, 2016, Contreras moved pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his
210-month sentence [D.E. 157]. On February 23, 2017, the
government moved to dismiss Contreras's section 2255
motion [D.E. 162] and filed a memorandum in support [D.E.
163]. On March 17, 2017, Contreras responded in opposition
[D.E. 165]. As explained below, the court grants the
government's motion to dismiss, dismisses Contreras's
section 2255 motion, and denies his section 3582 motion.
2, 2014, pursuant to a plea agreement, Contreras pleaded
guilty to conspiracy to distribute and possess with intent to
distribute 500 grams or more of a mixture or substance
containing a detectable amount of memamphetamine in violation
of 21 U.S.C.§ 846. See [D.E. 63, 67, 136]. On March 11,
2015, at Contreras's sentencing hearing, the court
calculated Contreras's total offense level to be 37, his
criminal history category to be I, and his advisory guideline
range to be 210 to 262 months' imprisonment. See [D.E.
118, 123, 124]; Sentencing Tr. [D.E. 137] 28-31. After
thoroughly considering all relevant factors under 18 U.S.C.
§ 3553(a), the court sentenced Contreras to 210
months' imprisonment. See [D.E. 123]; Sentencing Tr. at
appealed. On December 1, 2015, the United States Court of
Appeals for the Fourth Circuit enforced the appellate waiver
in Contreras's plea agreement and dismissed the appeal.
See [D.E. 145].
16, 2016, Contreras filed his motion under 18 U.S.C. §
3582(c), U.S.S.G. § 1B1.10, and Amendment 782 to the
Sentencing Guidelines to reduce his sentence [D.E. 152]. On
October 24, 2016, Contreras filed a section 2255 motion [D.E.
157]. In his section 2255 motion, Contreras claims
ineffective assistance of counsel for failing to argue for a
downward departure based on Contreras's "minimal
role as a drug mule" and to object to a sentencing
enhancement "for maintaining a premise for the purpose
of manufacturing or distributing a controlled
substance." [D.E. 157] 4-5; [D.E. 157-1] 2-7. Contreras
asks the court to grant the section 2255 motion and
resentence him to 120 months' imprisonment. See [D.E.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a claim's legal and
factual sufficiency. See Ashcroftv.Iqbal. 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twomblv. 550
U.S. 544, 555-63, 570 (2007); Coleman v. Md. Court of
Appeals. 626 F.3d 187, 190 (4th Cir. 2010), affd, 566
U.S. 320 (2012); Giarratano v. Johnson. 521 F.3d
298, 302 (4th Cir. 2008); accord Erickson v. Pardus.
551 U.S. 89, 93-94 (2007) (per curiam). The government may
challenge the legal sufficiency of a section 2255 petition
through a motion to dismiss under Rule 12(b)(6). See Rule 12,
Rules Governing Section 2255 Proceedings; United States
v. Frady. 456 U.S. 152, 166-68 n.15 (1982); United
States v. Reckmeyer 900 F.2d 257, at *4 (4th Cir. 1990)
(unpublished table decision). In considering a motion to
dismiss, a court need not accept a complaint's legal
conclusions. See, e.g., Iqbal. 556 U.S. at
678. Similarly, a court "need not accept as true
unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano. 521 F.3d at 302
(quotation omitted): see Iqbal. 556U.S. at 677-79.
Moreover, a court may take judicial notice of public records
without converting a motion to dismiss into a motion for
summary judgment. See, e.g.. Fed.R.Evid.
201; Tellabs. Inc. v. Makor Issues & Rights.
Ltd.. 551 U.S. 308, 322 (2007); Philips v. Pitt Cty.
Mem'l Hosp.. 572 F.3d 176, 180 (4th Cir. 2009). In
reviewing a section 2255 motion, the court is not limited to
the motion itself. The court also may consider "the
files and records of the case." 28 U.S.C. §
2255(b); see United States v. McGill. 11 F.3d 223,
225 (1st Cir. 1993).
Contreras's ineffective-assistance claims, "[t]he
Sixth Amendment entitles criminal defendants to the effective
assistance of counsel-that is, representation that does not
fall below an objective standard of reasonableness in light
of prevailing professional norms." Bobby v. Van
Hook. 558 U.S. 4, 7 (2009) (per curiam) (quotations
omitted). The Sixth Amendment right to counsel extends to all
critical stages of a criminal proceeding, including plea
negotiations, trial, sentencing, and appeal. See,
e.g.. Missouri v. Frye. 566 U.S. 133, 140
(2012); Lafler v. Cooper. 566 U.S. 156, 164-65
(2012); Glover v. United States. 531 U.S. 198,
203-04 (2001). "[Sentencing is a critical stage of trial
at which a defendant is entitled to effective assistance of
counsel, and a sentence imposed without effective assistance
must be vacated and reimposed to permit facts in mitigation
of punishment to be fully and freely developed."
United States v. Breckenridge. 93 F.3d 132, 135 (4th
Cir. 1996); see Glover. 531 U.S. at 203-04. To state
a claim of ineffective assistance of counsel in violation of
the Sixth Amendment, Contreras must show that his
attorney's performance fell below an objective standard
of reasonableness and that he suffered prejudice as a result.
See Strickland v. Washington. 466 U.S. 668, 687-91
determining whether counsel's representation was
objectively unreasonable, a court must be "highly
deferential" to counsel's performance and must
attempt to "eliminate the distorting effects of
hindsight." Id. at 689. Therefore, the
"court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance." Id. A
party also must show that counsel's deficient performance
prejudiced the party. See Id. at 691-96. A party
does so by showing that there is a "reasonable
probability" that, but for the deficiency, "the
result of the proceeding would have been different."
Id. at 694.
court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury."
Id. at 695. When analyzing an ineffectiveness claim,
a court may rule based on its own familiarity with the case.
See Blackledge v. Allison. 431 U.S. 63, 74 n.4
(1977); United States v. Dvess. 730 F.3d 354, 359-60
(4th Cir. 2013).
Contreras's ineffective-assistance claims concerning
section 3B1.2 and section 2D 1.1 (b)(2), Contreras cannot use
section 2255 to attack retroactively his advisory guideline
range. See. e.g.. United States v. Foote. 784 F.3d
931, 935-36 (4th Cir. 2015); United States v.
Present 190 F.3d 279, 283-84 (4th Cir. 1999); see also
Whiteside v. United States. 775 F.3d 180, 183-87
(4th Cir. 2014) (en banc); United States v.
Mikalaiunas. 186 F.3d 490, 495-96 (4th Cir. 1999). Thus,
the claims fail.
the claims fail because the court properly applied the
enhancement under section 2D1.1(b)(l2), properly declined to
give Contreras a minimal role adjustment under section i
3B1.2, and properly calculated the advisory guideline range.
See PSR [D.E. 95] ¶¶ 1-12, 34-43. To the extent
that Contreras contends that counsel was deficient under
Amendment 794 concerning section 3B1.2, the Sentencing
Commission issued Amendment 794 on November 1, 2015.
Amendment 794 amended the commentary to section 3B1.2.
Section 1B1.10(d) lists the amendments that receive
retroactive application. See U.S.S.G. § 1B1.10(d). That
list "does not include Amendment 794." United
States v. Welch. No. 16-7670, 2017 WL1241970, at* 1 (4th
Cir. Apr. 4, 2017) (per curiam) (unpublished); United
States v. Brewton. No. 16-7709, 2017 WL 1242007, at *1
(4th Cir. Apr. 4, 2017) (per curiam) (unpublished).
Accordingly, there was ho deficient performance or prejudice.
See, e.g., Bobby. 558 U.S. at 11-12;
Strickland. 466 U.S. At 689-700.
reviewing the claims presented in Contreras's section
2255 motion, the court finds that i
reasonable jurists would not find the court's treatment
of Contreras's claims debatable or wrong and that the
claims deserve no encouragement to proceed any further.
Accordingly, the court denies;a certificate of appealability.
See 28 U.S.C. § 2253(c); Miller-El v. Cockrell.
537 U.S. 322, 336-3;8 (2003); Slack v. McDaniel. 529
U.S. 473, 484 (2000).
Contreras's motion under 18 U.S.C. § 3582(c),
U.S.S.G. § 1B1.10, and Amendment 782, the court
sentenced Contreras under the provisions of Amendment 782.