United States of America v. Rivera-Orta

Filing 23

MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 9/8/2021.(rbf, )

Case: 1:18-cv-01659 Document #: 23 Filed: 09/08/21 Page 1 of 12 PageID #:180

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NEMESIO RIVERA-ORTA,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 18 C 1659
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Nemesio Rivera-Orta pleaded guilty to conspiracy to possess with intent to distribute at
least 50 grams of methamphetamine. This court imposed a below-guidelines sentence of 140
months in prison. Rivera-Orta appealed, but appointed counsel filed an Anders brief, and the
Court of Appeals affirmed the sentence.

United States v. Rivera-Orta, 681 F. App’x 509, 512

(7th Cir. 2017). Rivera-Orta now moves to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255 [1]. He argues that he is actually innocent and that his Sixth Amendment rights
were violated due to ineffective assistance of counsel. For the reasons stated below, the court
denies Rivera-Orta’s motion.
BACKGROUND
On February 12, 2015, Defendant Rivera-Orta pleaded guilty to a conspiracy to knowingly
and intentionally possess with the intent to distribute a controlled substance, namely, 50 grams
or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Indictment [*29]
at 1; Guilty Plea [*123] at 1.) 1 On May 10, 2016, this court sentenced Rivera-Orta to a belowguideline term of 140 months. (Sentencing Order [*173] at 2.) In his timely § 2255 petition and
memorandum in support, Rivera-Orta argues for relief from his conviction and sentence on two
Mr. Rivera-Orta’s § 2255 motion, memorandum in support, and reply, and the
Government’s response, all come from the civil docket in Case No. 1:18-cv-01659. All other
references to docket filings are to Rivera-Orta’s criminal docket in Case No. 1:12-cr-00614-1.
Items from the criminal docket are denoted with an asterisk.
1

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grounds. In Ground One, he claims actual innocence, stating that he was never involved in
criminal activity and that he acted under duress from individuals in Mexico. (Mot. [1] at 4.) In
Ground Two, he claims ineffective assistance of counsel. (Id. at 5.) Counsel was ineffective,
Rivera-Orta asserts, in nine ways. Specifically, he claims that counsel
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failed to argue that Rivera-Ora was subject to a sentence no longer than the statutory
mandatory minimum of five years given the weight of methamphetamine attributable to
him (Mem. [3] at 3-4);

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failed to raise an objection to the government’s assessment of the purity or weight of
methamphetamine attributed to him (id. at 4-5);

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failed to argue the court misapplied the sentencing guidelines by relying on an excessive
weight or purity of methamphetamine (id. at 5-6);

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failed to request a mitigating role adjustment to his guideline sentence (id. at 7);

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failed to request the application of the “safety valve” under 18 U.S.C. § 3553(f) and
U.S.S.G §§ 2D1.1(b)(17), 5C1.2 (id. at 8);

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failed to request a sentencing variance based on a policy disagreement with
methamphetamine guidelines (id. at 8-9);

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failed to request a variance for aberrant behavior under U.S.S.G. § 5K2.20 (id. at 9);

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failed to argue his sentence was procedurally or substantially unreasonable (id. at 10);

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failed to request that Rivera-Orta be permitted to plead guilty and be sentenced under the
“Fast-Track” program. (Id. at 11.)
The Government contends that all of Rivera-Orta’s claims are either meritless or

foreclosed, and that the ineffective assistance claims also fail by falling short of Defendant’s
burden under the two-prong test in Strickland v. Washington, 466 U.S. 668 (1984). (Govt. Resp.
[7] at 3.) As explained here, the court agrees.
DISCUSSION
Under 28 U.S.C. § 2255, a prisoner in custody may move the court that imposed the
sentence to vacate, set aside, or correct his sentence if it was imposed in violation of the laws of
the United States or is otherwise subject to collateral attack. Relief under this section “is an
extraordinary remedy because it asks the district court essentially to reopen the criminal process
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to a person who already has had an opportunity for full process.” Almonacid v. United States,
476 F.3d 518, 521 (7th Cir. 2007). It is appropriate “only for ‘an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which inherently results in a complete
miscarriage of justice.’” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre
v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). While the statute entitles a defendant to an
evidentiary hearing if he “alleges facts that, if proven, would entitle him to relief,” Kafo v. United
States, 467 F.3d 1063, 1067 (2006) (citation omitted), an evidentiary hearing is not required if the
defendant's allegations are “vague, conclusory, or palpably incredible rather than detailed and
specific,” id. (quoting Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001)), or if “the motion
and the files and records of the case conclusively show that the prisoner is entitled to no
relief.” Almonacid, 476 F.3d at 521 (quoting Bruce, 256 F.3d at 597). In particular, a hearing is
unnecessary when the court has “sufficient information, based on its observations, the record,
and the law” to determine whether or not the defendant received effective assistance of
counsel. Rodriguez v. United States, 286 F.3d 972, 987 (7th Cir. 2002), as amended on denial
of reh'g and reh'g en banc (May 21, 2002). The judge who presided over the defendant's
sentencing is “uniquely suited to determine if a hearing [is] necessary.” Id.
Ground One of Rivera-Orta’s § 2255 motion is actual innocence. The Government argues
that this ground is foreclosed because Rivera-Orta could have—but did not—raise an actual
innocence argument on direct appeal. (Govt. Resp. at 5.) Even so, the Supreme Court held in
McQuiggin v. Perkins that “actual innocence, if proved, serves as a gateway through which a
petitioner may pass” when “the impediment is a procedural bar.” 569 U.S. 383, 386 (2013) (citing
Schlup v. Delo, 513 U.S. 298 (1995); House v. Bell, 547 U.S. 518 (2006)). While McQuiggin
involved a habeas petition under 28 U.S.C. § 2244, the Court noted it was extending its prior
determination that “in the context of § 2255 . . . actual innocence may overcome a prisoner’s
failure to raise a constitutional objection on direct review.” Id. (citing Bousley v. United States,
523 U.S. 614, 622 (1998) (remanding to permit petitioner to attempt to show actual innocence in
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order to obtain collateral review of his guilty plea)); see also Lund v. United States, 913 F.3d 665,
667-70 (7th Cir. 2019) (discussing McQuiggin’s actual-innocence gateway in the context of a
§ 2255 motion). Notably, though, “tenable actual-innocence gateway pleas are rare: ‘A petitioner
does not meet the threshold requirement unless he persuades the district court that, in light of the
new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.’” McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 332).
Rivera-Orta cannot meet that high bar given that he has not addressed any new evidence,
let alone new evidence that would cause no reasonable juror to find him guilty. Rivera-Orta’s
conclusory statement—that he acted “only to make sure nothing happens to his family and kids
in Mexico”—appears to assert an affirmative defense of duress. (Mem. at 2.) Rivera-Orta has
not explained how any defense of duress would involve new evidence; if Rivera-Orta acted under
duress, presumably he knew that when he pleaded guilty, meaning that a claim of duress is
waived because it was not raised on appeal, as the Government argues. And a claim of duress
would be directly contrary to his prior plea of guilty. Rivera-Orta claims that he can assert this
“inconsist[ent] defense,” and cites as authority United States v. Haischer, 780 F.3d 1277 (9th Cir.
2015). (Reply [13] at 2.) The Ninth Circuit Court of Appeals in Haischer stated that “under federal
law . . . a defendant is not obligated to admit her guilt to a crime as a precondition for raising an
affirmative defense such as duress.” Haischer, 780 F.3d at 1283. But that principle is not relevant
here: the present issue is not whether Rivera-Orta’s duress claim requires that he admit guilt. It
is that his prior admission of guilt undermines his new claim of innocence.
Relevant to this and other grounds raised by Rivera-Orta, then, is the validity of his guilty
plea. Rivera-Orta claims that the plea hearing transcript shows that he “clearly did not agree to
[a] conspiracy.” (Reply at 2.) But in support, he cites only an exchange during that hearing in
which he noted that he did not agree to personally distribute drugs. (Tr. of Change of Plea
Proceedings [*158] at 16:13-18:15.) The court explained during his plea colloquy that the crime
of conspiracy under 21 U.S.C. §§ 841(a)(1) and 846 is “an agreement . . . to possess with the
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intent to distribute; in other words, to possess the methamphetamine with the understanding that
it would be distributed[.]” (Id. at 16:22-24 (emphasis added).) Rivera-Orta subsequently affirmed
that though he himself would not be selling drugs, he knew the drugs he possessed would be
distributed by others. (Id. at 17:14-16.)
Rivera-Orta’s guilty plea was also knowing and voluntary. In adherence to Federal Rule
of Criminal Procedure 11(b), the court advised and questioned him to ensure he knew his rights
and the consequences of his plea. (Id. at 4:20-15:25.) During that exchange, the court asked
Rivera-Orta whether anyone “forced” or “threatened” him to plead guilty, to which he answered
“no.” (Id. at 15:22-25.) The court has no reason to disbelieve Rivera-Orta’s sworn statements.
See United States v. Smith, 989 F.3d 575, 582 (7th Cir. 2021) (“We give special weight to a
defendant's sworn testimony in a Rule 11 plea colloquy. . . . That testimony is presumed true, and
the defendant bears a heavy burden to overcome this presumption.” (citations omitted)). Given
that the guilty plea was valid, knowing, and voluntary, this court finds no merit to Rivera-Orta’s
claim of actual innocence.
Rivera-Orta’s Ground Two claims ineffective assistance of counsel.

The Sixth

Amendment to the Constitution sets forth the elements of a fair trial and states that “the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST. amend.
VI. Ineffective assistance of counsel claims are governed by the two-pronged standard set forth
in Strickland v. Washington, under which a defendant must show both that (1) his trial attorney's
performance “fell below an objective standard of reasonableness,” and (2) “but for counsel's
unprofessional errors the result of the proceeding would have been different.” 466 U.S. 668, 68796 (1984). For the first prong, given the “wide range of competent legal strategies,” and to “avoid
the pitfalls of review in hindsight,” the court's “review of an attorney's performance is highly
deferential and reflects a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th Cir.
2011). Under the second prong, to establish prejudice, a defendant must “show that there is a
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reasonable probability that, but for counsel's errors, the result of the proceedings would have
been different, such that the proceedings were fundamentally unfair or unreliable.” Blake v.
United States, 723 F.3d 870, 879 (7th Cir. 2013). The burden is on Rivera-Orta to prove both
prongs; failure under either prong is fatal to his claims. Thompson v. Vanihel, 998 F.3d 762, 767
(7th Cir. 2021).
The court begins its analysis of Ground Two by examining Rivera-Orta’s first three
arguments: that counsel failed to assert he could not be sentenced to more than a mandatory
minimum of five years (Mem. at 3-4); that counsel failed to raise an objection to the purity or
weight of methamphetamine attributed to him (id. at 4-5); and that counsel failed to object to a
misapplication of the sentencing guidelines, given the amount of methamphetamine attributed to
him. (Id. at 5-6.) To establish prejudice under Strickland due to counsel’s alleged failures, RiveraOrta must show that he was actually responsible for less than 50 grams of pure
methamphetamine, and thus cannot be subject to a mandatory minimum of 10 years under 21
U.S.C. § 841(b)(1)(A)(viii), or else that he was actually responsible for less than 7.4 kilograms of
methamphetamine, and thus was inaccurately assessed a base offense level of 38 under
U.S.S.G. § 2D1.1(c)(1). (Mem. at 3-6.)
The first problem with this premise is that Rivera-Orta pleaded guilty to a weight of at least
50 grams, thus triggering the 10-year statutory minimum. Rivera-Orta claims he was “confused”
during the plea hearing, and indeed expressed confusion at the plea colloquy. (Tr. of Change of
Plea Proceedings [*158] at 21:22 (“I didn’t understand the question.”).) In response to his
asserted confusion, however, the court immediately clarified for Rivera-Orta that the drug quantity
to which he was pleading guilty was at least 50 grams:
[The Court:] Okay. You are saying that you did not know what was in the case—
or how much was in the case, I should say?
[Mr. Rivera-Orta:]

Yes. Yes. Correct.

Q.
But the government believes that there were 50 grams or more of
methamphetamine in the case. You understand that’s their position?
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A.

Yes. Yes.

Q.
And you agree that that’s what was in there, although you didn’t know it at
the time?
A.

Yes.

Q.
All right. So you agree with that weight. It’s just that you are telling me you
didn’t know for sure the weight at the time of the event?
A.

Yes.

Q.

All right. What is your plea to Count I of the indictment, guilty or not guilty?

A.

Guilty.

(Id. at 21:23-22:16.) Again, there is a presumption that his testimony was truthful. See United
States v. Smith, 989 F.3d 575, 582 (7th Cir. 2021). The transcript also makes clear that RiveraOrta was well aware his plea carried a mandatory minimum of ten years in prison, as it was noted
three times throughout the hearing, including in a direct exchange between him and the court.
(Tr. of Change of Plea Proceedings [*158] at 12:17, 14:2, 14:20-23.)
Second, the possibility that less than 7.4 kilograms of methamphetamine could be
attributable to Rivera-Orta with respect to his base offense level was foreclosed by the Seventh
Circuit in Rivera-Orta’s direct appeal.

That court noted that “a total of 7.4 kilograms [of

methamphetamine] was recovered by the DEA in the two sales arranged by the defendant. The
drug quantity was incontestable, which explains why Rivera-Orta’s former attorney did not object
to the quantity finding.” Rivera-Orta, 681 F. App’x at 510-11. Further contesting his offense level,
Rivera-Orta argues that enhancements to the base offense level for importation and for a
leadership role in the offense were not applicable. (Mem. at 6.) These arguments are moot,
however, as the court in fact sustained objections by Rivera-Orta’s counsel to each of these
enhancements during sentencing. (Tr. of Sentencing Proceedings [*176] at 3:10-13:8.)
Finally, Rivera-Orta claims that his guilty plea to “50 grams or more” is ambiguous, and so
he should only be held accountable for 50 grams. (Reply at 5.) As authority for that claim, he
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cites United States v. Magallanez, 408 F.3d 672, 682 (10th Cir. 2005). That case involved a
disagreement between the trial judge and the jury as to the quantity of drugs attributable to the
defendant, and the appellate court held it was error for the trial judge (who attributed a larger
quantity) to increase the sentence beyond the maximum authorized by the jury verdict.
Magallanez, 408 F.3d 682-85. That is not what happened here. There was no discrepancy
between a jury finding and a court determination of drug quantity; indeed, the court made no drug
quantity determination. Rivera-Orta himself pleaded guilty to conspiracy to distribute 50 grams
or more of methamphetamine—language identical to that triggering a 10-year mandatory
minimum in 21 U.S.C. § 841(b)(1)(viii). And as discussed, the 7.4 kilogram quantity used for his
base offense level is incontestable. Thus, the first three arguments for Ground Two fail to
establish prejudice and therefore offer no basis for relief under § 2255.
The fourth argument put forward by Rivera-Orta under Ground Two is that counsel failed
to request a mitigating-role adjustment under U.S.S.G. § 3B1.2. He claims that he was “less
culpable than the average participant in a drug trafficking offense” and that he “merely did what
he was told to do.” (Mem. at 7.) The Presentence Investigation Report concluded to the contrary
that “defendant was an organizer, leader, manager, or supervisor.” (Presentence Investigation
Report [*126] at 7 ¶ 18.) Rivera-Orta’s counsel objected to that conclusion (Def.’s Sentencing
Mem. [*165] at 4), and the court ultimately sustained that objection, but only after noting it was “a
pretty close case, because . . . some of the circumstances do suggest that Mr. Rivera-Orta
brought [coconspirator] Mr. Rodriguez into things.” (Tr. of Sentencing Proceedings at 12:12-15.)
The court also found that “Mr. Rivera-Orta is more culpable than Mr. Rodriguez.” (Id. at 13:3.)
Thus, contrary to Rivera-Orta’s claim, counsel did actively pursue lowering his sentence due to
his role, and counsel won a narrow victory for him on that point. There is no merit to the idea that
this court would have granted a request for a mitigating role adjustment, given that it narrowly
denied a role enhancement; this argument fails.

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The fifth argument advanced by Rivera-Orta is that counsel failed to seek relief under the
“safety valve,” which allows a defendant to avoid the statutory minimum and benefit from a
downward adjustment under sentencing guidelines.

See 18 U.S.C. § 3553(f); U.S.S.G.

§§ 2D1.1(b)(17), 5C1.2. Rivera-Orta pressed this argument on direct appeal, without success.
issue. As the Seventh Circuit explained, a prerequisite to invoking this provision “is that, no later
than the time of sentencing, the defendant disclose to the government ‘all information and
evidence’ in his possession ‘concerning the offense or offenses that were part of the same course
of conduct or of a common scheme or plan.’” Rivera-Orta, 681 F. App’x at 511 (quoting U.S.S.G.
§ 5C1.2(a)(5)). But “nothing in the record suggests that Rivera-Orta satisfied this condition.” Id.
(citing United States v. Sainz-Preciado, 556 F.3d 708, 715 (7th Cir. 2009)). Thus, it would have
been futile for counsel to seek relief under the “safety valve,” because Rivera-Orta was not
eligible; hence, any alleged failure by counsel was nonprejudicial. And to the extent Rivera-Orta
seeks to relitigate his eligibility, his claim is barred by the “law of the case.” Fuller v. United States,
398 F.3d 644, 648 (7th Cir. 2005) (quoting United States v. Mazak, 789 F.2d 580, 581 (7th Cir.
1986) (“In the context of § 2255 petitions, the ‘law of the case’ doctrine dictates that ‘once this
court has decided the merits of a ground of appeal, that decision establishes the law of
the case and is binding on a [court] asked to decide the same issue in a later phase of the same
case, unless there is some good reason for reexamining it.’”).
Rivera-Orta’s sixth argument is that counsel failed to request a downward variance based
on a policy objection to sentencing guidelines for methamphetamine offenses. First, this is not
entirely accurate; defense counsel did argue that the guideline offense level was “extraordinarily
high” and noted that it was “generally reserved for much more serious crimes” such as first-degree
murder. (Def.’s Sentencing Mem. at 8.) Moreover, any potential failure by counsel did not
prejudice Defendant. Rivera-Orta is correct that courts may depart from the guidelines. See,
e.g., United States v. Corner, 598 F.3d 411, 414-16 (7th Cir. 2010). No party here contests that.
Indeed, the court in this case imposed a below-guideline sentence. (Compare Tr. of Sentencing
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Proceedings at 13:7-8 (“[G]uideline range of 168 to 210 months.”), with id. at 28:4 (“[S]entence of
140 months in custody.”).) And this court carefully weighed several factors in reaching that
sentence, including the harm caused by distribution of methamphetamine. (Id. at 27:9-12 (“[W]e
are talking about a very, very large amount of extremely pure meth, which is destructive in so
many ways. It ruins families, ruins lives, ruins people’s brains. It’s an awful, awful [ ] drug.”).)
Thus, Rivera-Orta was not prejudiced by any potential failure by counsel to raise a policy objection
to the sentencing guideline.
Seventh, Rivera-Orta argues that counsel failed to request a downward variance for
aberrant behavior under U.S.S.G. § 5K2.20. That guideline states that a “court may depart
downward . . . if the defendant committed a single criminal occurrence or single criminal
transaction that,” inter alia, “represents a marked deviation by the defendant from an otherwise
law-abiding life.”

U.S.S.G. § 5K2.20(b).

An adjustment for aberrant behavior (even if it is

supported factually) is not available, however, if “[t]he instant offense of conviction is a serious
drug trafficking offense.” Id. at § 5K2.20(c)(3). A “serious drug trafficking offense” is a “controlled
substance offense under title 21, United States Code” that carries a mandatory minimum
sentence of “five years or greater . . . .” Id. at § 5K2.20, appl. n.1. Any error by counsel was
nonprejudicial because Rivera-Orta failed to meet the requirements of section (b), and the court
is prohibited from departing based on section (c). An argument that the offense conduct in this
case was aberrant behavior would have been frivolous: At sentencing, this court noted that “Mr.
Rivera-Orta . . . has been involved in some drug sales for a long, long time. He has—in spite of
the fact that decades have passed, he is still engaged in that kind of conduct.” (Tr. of Sentencing
Proceedings at 28:9-12.) His crime was therefore not a “marked deviation from an otherwise lawabiding life.” U.S.S.G. § 5K2.20(b). And even if it were, his crime is a drug trafficking offense
imposing a 10-year mandatory minimum sentence, which makes him ineligible for the variance.
Eighth, Rivera-Orta argues that counsel failed to argue his sentence was procedurally or
substantially unreasonable. In addition to restating points considered elsewhere in his § 2255
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motion, he claims that this court did not consider factors such as his age, health, and family
support, and claims that there is an unwarranted disparity between his sentence and the sentence
of his coconspirator. (Mem. at 10.) Again, any potential failure on the part of his counsel is
nonprejudicial given that the Seventh Circuit already decided that these arguments have no merit.
The court’s decision dismissing Rivera-Orta’s appeal noted that his sentence is “below the
guidelines range . . . and thus presumptively reasonable.” Rivera-Orta, 681 F. App’x at 511 (citing
Rita v. United States, 551 U.S. 338, 347 (2007)). Finding that it had no reason to set aside that
presumption, the appellate court noted the district court “weighed the sentencing factors in 18
U.S.C. § 3553(a)” including “Rivera-Orta’s age, criminal history, difficult childhood, and family
ties.” Id. Regarding Rivera-Orta’s point about the relatively shorter length of his coconspirator’s
sentence, the appellate court stated that Rivera-Orta’s argument was “frivolous because a
concern about sentencing disparities, see 18 U.S.C. § 3553(a)(6), relates to differences between
judges or districts, not among codefendants in the same case.” Id. (citations omitted).
Ninth, and last, Rivera-Orta claims counsel failed to request a guilty plea under the “FastTrack” program. The “Fast Track” program has no relevance in this case. That program provides
a United States attorney with the discretion to recommend a two or four level downward departure
pursuant to U.S.S.G. § 5K3.1 for a defendant charged with illegal reentry who promptly pleads
guilty and is otherwise eligible for the program. United States v. Castro-Alvarado, 755 F.3d 472,
475 (7th Cir. 2014). Rivera-Orta was charged with a drug conspiracy, not with illegal reentry.
CONCLUSION
For the foregoing reasons, the court denies Defendant Rivera-Orta’s motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255 [1]. His motion for resolution of this petition
[15] is terminated as moot. The court concludes that jurists of reason would not find any of this
court’s conclusions debatable, and therefore, the court declines to certify any issues for appeal
under 28 U.S.C. § 2253(c). Civil case terminated.

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ENTER:

Dated: September 8, 2021

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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