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Rebollar v. United States

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

September 8, 2017




         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         From 2011 to the end of 2014, Petitioner was a member of a cocaine-trafficking conspiracy that distributed large quantities of cocaine in Gaston County, North Carolina, and elsewhere. (Crim. Case No. 3:15-cr-20-RJC-2, Doc. No. 99 at ¶ 7: PSR). Petitioner's brother, Jose, was a leader of the conspiracy. See (Id. at ¶¶ 8, 29). During the conspiracy, Jose directed Petitioner to speak with a source about future deliveries of multiple kilogram quantities of cocaine. (Id. at ¶ 18). As part of the conspiracy, Petitioner delivered large quantities of cocaine, drove a “cover car” to protect the drug deliveries from law enforcement or theft, collected drug proceeds, and met with the sources of supply. (Id. ¶¶ 19, 2123, 26-27, 31, 45, 49-53). Members of the conspiracy carried firearms for protection while working. (Id. at ¶ 59). When Petitioner was arrested, law enforcement officers found four firearms at his residence. (Id. at ¶ 25).

         A grand jury indicted Petitioner, charging him with conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (Count One); possession with intent to distribute 500 kilograms or more of cocaine, and aiding and abetting the same, in violation of 21 U.S.C. § 841(b)(1)(B) and 18 U.S.C. § 2 (Count Four); and aiding and abetting possession of a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. §§ 924(c), 2 (Count Six). (Id., Doc. No. 45: Indictment).

         Petitioner agreed to plead guilty to Count One of the Indictment. (Id., Doc. No. 65 at ¶ 1: Plea Agrmt.). As part of Petitioner's plea agreement, the Government agreed to dismiss the remaining counts against him, and the parties agreed to recommend that the Court find that the amount of cocaine reasonably foreseeable to Petitioner was more than 50 kilograms, but less than 150 kilograms; that Petitioner should receive a three-level reduction for acceptance of responsibility; and that the Government would not oppose a sentence at the bottom of the applicable guidelines range. (Id. at ¶ 7). The parties reserved their rights to advocate whether Petitioner should receive a two-level enhancement under U.S.S.G. § 2D1.1(b)(1), for possessing a dangerous weapon in connection with the offense, as well as to argue regarding other adjustments, departures, or variances. (Id.). Petitioner agreed to waive the right to challenge his conviction and sentence on direct appeal or in any post-conviction proceeding, except as to claims for ineffective assistance of counsel or prosecutorial misconduct. (Id. at ¶¶ 18-19). The plea agreement provided that there were no other “agreements, representations, or understandings between the parties in this case.” (Id. at ¶ 28).

         At the plea hearing, Petitioner affirmed that he understood the charges against him and the plea agreement, including the parties' reservation of their rights to argue whether he should receive a two-level weapon enhancement under U.S.S.G. § 2D1.1(b)(1), as well as the waiver of his right to challenge his conviction or sentence on direct appeal or in any post-conviction proceeding. (Id., Doc. No. 144 at 5, 8-14: Plea Tr.). He also stated that he understood that the Sentencing Guidelines range could not be determined until after the presentence report was prepared, that he could receive a sentence higher or lower than the guidelines range, and that he would still be bound by his guilty plea even if he received a higher sentence. (Id. at 6-7).

         Petitioner testified that he had had sufficient time to discuss any potential defenses with his attorney, that he was satisfied with his attorney's services, and that no promises outside of the plea agreement had been made to induce him to plead guilty. (Id. at 15). The magistrate judge found that Petitioner was pleading guilty knowingly and voluntarily and accepted his guilty plea. (Id. at 16).

         A probation officer prepared a presentence report in July 2015, recommending that, based on the amount of drugs involved in the offense, Petitioner be sentenced at a base offense level of 34, that he receive a two-level upward adjustment under U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon, and that he receive a three-level downward adjustment for acceptance of responsibility, for a total offense level of 33. (Id., Doc. No. 99 at ¶¶ 66-67, 73-75). The probation officer determined that Petitioner's criminal history category was III and that the advisory guidelines range was 168 to 210 months of imprisonment. (Id. at ¶¶ 93, 121).

         Petitioner's attorney objected to the PSR, arguing that Petitioner did not possess a firearm in connection with his drug-trafficking offense, that the residence where the firearms were found belonged to his mother, that none of the firearms were found in the bedroom where he had been residing, that the firearms were registered to another person, and that it was his brothers who had kept the firearms at the house. (Id., Doc. No. 94: Objection to PSR). Defense counsel also argued that Petitioner had a minor role in the offense compared to his codefendants and that, although he understood the scope of the enterprise, his activities “were limited to being a courier.” (Id. at 1). The Government filed a sentencing memorandum supporting the recommendations in the PSR. (Id., Doc. No. 130: Sent. Memo.). The Government attached debriefing reports showing that, during the conspiracy, Petitioner had delivered one to five kilograms of cocaine an average of two to three times per week and that in 2012 Petitioner had obtained a new source of supply for the conspiracy. (Id. at 1-2: Sent. Memo.; Doc. Nos. 130-31; 130-2). One of the reports noted that Petitioner mostly stayed at his mother's home, that he had received a firearm as a gift from one of the coconspirators in 2014, and that he had a shotgun that he kept at his mother's house. (Id., Doc. No. 130-1 at 4). A coconspirator stated that he always carried a firearm, but that he had had to persuade Petitioner not to take a firearm during one of his drug deliveries. (Id.). A codefendant also noted that the coconspirators all carried a weapon while operating the cover car. (Id. at 5).

         At sentencing in May 2016, defense counsel again argued that Petitioner should not receive an enhancement for possession of a firearm in connection with his drug-trafficking offense and that he was a courier and thus played only a minor role in the offense. (Id., Doc. No. 145 at 3-5: Sent. Tr.). The Government argued that Petitioner was not entitled to a minor role adjustment because he was involved in numerous aspects of the conspiracy, including delivering kilogram quantities of cocaine; picking up money; and acting as a cover car for deliveries. (Id. at 6). The Government also argued that a firearm was used in the cover car and that a coconspirator had given Petitioner a handgun and also had discussed the fact that Petitioner had a shotgun. (Id.). Both of these firearms were found in Petitioner's room at his mother's house. (Id.). Defense counsel countered that Petitioner's mother told him that the shotgun was found in his attic, but the other firearms were found in his brother's room. (Id. at 7). This Court overruled Petitioner's objections, finding that the firearms were found at his residence and it was clearly probable that the firearms were connected to his offense. (Id. at 8). Based on the information from the PSR, as well as the co-conspirator debriefings, the Court found that Petitioner played more than a minor role in the offense and, therefore, should not receive a reduction based on his role in the offense. (Id. at 9).

         This Court sentenced Petitioner to 168 months of imprisonment. (Id. at 12). Petitioner appealed. His counsel filed a brief, pursuant to Anders v. California, 386 U.S. 738 (1967), but questioned whether this Court erred in accepting Petitioner's guilty plea, whether the Court abused its discretion in imposing his sentence, and whether Petitioner had received ineffective assistance of counsel. United States v. Rebollar, 665 F. App'x 255 (4th Cir. 2016). The Fourth Circuit affirmed, holding that the guilty plea was properly accepted, that there was no procedural or substantive error in the sentence imposed, and that Petitioner's claim of ineffective assistance of counsel was not appropriately addressed on direct appeal. Petitioner timely filed the present motion to vacate in May 2017, arguing that both his trial counsel and his appellate counsel provided ineffective assistance. (Civ. Doc. No. 1). The Government filed its response in opposition on August 21, 2017. (Civ. Doc. No. 3).


         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, the Court finds that the arguments presented by Petitioner can be resolved without an ...

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