Moro-Orozco v. USA

Filing 3

ORDERED that the Petition for Relief under 28 U.S.C.§ 2255 on Motion to Vacate, Set Aside, or Correct Sentence is DENIED. Signed by Chief Judge Robert C. Jones on 7/26/2011. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

UNITED STATES OF AMERICA,
Plaintiff,

9
10
11
12
13
14

)
)
)
)
)
)
)
)
)
)
)

v.
GILBERTO RENTERIA,
a/k/a Epigemenio Moro-Orozco,
Defendant.

3:06-cr-100-RCJ-RAM
ORDER

___________________________________

15

Currently before the Court is Petitioner Gilberto Renteria's Motion Pursuant to 28 U.S.C.

16

§ 2255 to Vacate, Set Aside or Correct Sentence (#155). For the reasons given herein, the

17

Court denies the motion.

18

FACTS

19

Petitioner pleaded guilty to one count of possession of 62.7 grams of

20

methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1). (Judgment

21

(#127) at 1). The Court sentenced him to one hundred twenty-one (121) months of

22

imprisonment to be followed by five (5) years of supervised release. (Id. at 2-3).

23

Petitioner was indicted on September 6, 2006 and charged with possessing more than

24

fifty (50) grams of methamphetamine with intent to distribute. (Superseding Indictment (#19)).

25

On advice of his initial appointed counsel, Mr. Dennis Cameron, petitioner pled guilty on

26

October 31, 2006 pursuant to a plea agreement in which the Government agreed to dismiss

27

its 21 U.S.C. §851 information for a sentencing enhancement, thus, lowering the minimum

28

sentence from twenty (20) to ten (10) years. (Plea Mem. (#32) at 2). At the hearing scheduled
for his sentencing, Petitioner requested new counsel, citing dissatisfaction with the possible

1

length of his sentence. (Transcript (#147) at 2-6). The Court granted Petitioner's request and

2

continued the hearing so that a new counsel could be appointed. Id. at 8-9.

3

Petitioner's second attorney, Mr. Paul Quade, filed a request with the Court to have an

4

independent analysis of the purity of the methamphetamine conducted to determine the actual

5

amount of methamphetamine found in the possession of the Petitioner. (Stip. for Independent

6

Analysis (#47)). The Court granted the request for the testing, and the DEA sent a sample of

7

the methamphetamine to an independent laboratory selected by the defense. (Order (#48)).

8

The independent laboratory estimated that the sample contained 44.04 grams of "actual pure

9

methamphetamine." (Mot. to Withdraw (#51) at 5). The defense initially believed that the

10

discrepancy between the Government's analysis and the independent analysis was caused

11

by variations within the sample, casting doubt on the actual amount of methamphetamine used

12

for sentencing purposes. (Transcript (#109) at 13). On that belief, Petitioner asked the Court

13

to allow a change of plea solely with regard to the amount in possession. (Mot. to Withdraw

14

(#51) at 7). This Court ruled that Petitioner would have to withdraw his plea either entirely or

15

not at all. (Order (#56) at 5-6). Petitioner withdrew his entire guilty plea. (Notice of Intent

16

(#57)). The Government responded by re-filing its § 851 enhancement and this Court set a

17

date for trial. (Notice of Enhancement (#61)).

18

On the eve of trial, Mr. Quade discovered that the discrepancy between the two sets

19

of test results was due to differences in the definition of methamphetamine as tested for.

20

(Transcript (#136) at 9-10). The government's test included methamphetamine and its salts

21

and isomers, while the independent test excluded the salts and isomers. Mr. Quade moved

22

the Court to consider only the "pure methamphetamine," absent salts and isomers as the

23

proper amount for sentencing. (Mot. to Compel (#114)).

24

methamphetamine, as defined in the statute 21 U.S.C. § 841(b)(1)(A)(viii) properly included

25

the methamphetamine salts and isomers and thus the government's reading was correct.

26

(See Transcript (#136) at 41).

This Court ruled that

27

Subsequently, Mr. Quade advised Petitioner to change his plea. (Id. at 53-54.)

28

Petitioner pleaded guilty pursuant to a plea agreement largely the same as the original plea
2

1

agreement which included inter alia an admission that the amount of pure methamphetamine

2

was greater than fifty (50) grams and a promise from the Government that the § 851

3

enhancement would be excluded at sentencing. (Plea Mem. (#125) at 5-7). In addition,

4

Petitioner waived his right to appeal any aspect of his conviction and sentence so long as the

5

sentence was within the advisory sentencing guideline range as determined by the Court. (Id.

6

at 3). The Court sentenced him to 121 months of imprisonment and 60 months of supervised

7

release. (Judgment (#127) at 2-3). The Court also subsequently appointed Petitioner new

8

counsel to handle any appeal. (Orders (#130, 131)).

9

Upon appeal, counsel for Petitioner, Mario Valencia, filed a brief pursuant to Anders v.

10

California, 386 U.S. 738 (1967), stating that after thoroughly reviewing the record, he believed

11

there were "no viable issues for appeal." The Court of Appeals agreed after reviewing the

12

record and, after Petitioner failed to respond, affirmed Defendant's conviction. (See Ninth

13

Circuit Op. (#153)). Petitioner now petitions this Court for relief in a § 2255 Motion to Vacate,

14

Set Aside, or Correct Sentence alleging that his counsel was ineffective for not obtaining a

15

lesser sentence.

16

LEGAL STANDARD

17

The Sixth Amendment right to effective assistance of counsel is violated when: (1)

18

counsel's performance was deficient so as to fall "below an objective standard of

19

reasonableness," United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987) (as

20

amended), and (2) the deficiency prejudiced the defense by "depriv[ing] the defendant of a fair

21

trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687 (1984).

22

The court should begin with a "strong presumption" of reasonable professional conduct. Id.

23

at 689. Defendant must allege specific allegations of deficient conduct; vague and conclusory

24

allegations warrant summary dismissal. See Shah v. United States, 878 F.2d 1156, 1161 (9th

25

Cir. 1989). When the presumption of reasonable professional conduct is overcome, a

26

petitioner must also show that the attorney's "unprofessional errors" were such that there is

27

a reasonable probability that the result would have been different in the absence of those

28

errors. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
3

DISCUSSION

1
2

Petitioner's claims of ineffective assistance of counsel are untenable. Petitioner neither

3

alleges any facts that can be supported to show deficient performance of counsel nor

4

prejudice resulting from the decisions underlying the alleged deficient performance.

5

Petitioner's primary claim is that his counsel was ineffective in not obtaining a shorter

6

sentence. (Mot. to Vacate (#155) at 1-11). This claim rests on the assertion that the actual

7

pure methamphetamine was tested to be less than 50 grams. Id. This assertion has already

8

been decided by this Court and cannot be revisited. Petitioner pled guilty to an amount greater

9

than 50 grams and his plea agreement forecloses the possibility of appeal of any matter so

10

long as the sentence imposed was within the sentencing guideline range-a condition met by

11

the 121-month sentence he received. In addition, Petitioner does not allege any specific

12

behavior by any of his court-appointed counselors that was ineffective with regards to the

13

amount of methamphetamine upon which he was sentenced or with regard to the sentence

14

generally.

15

In addition, Petitioner claims that the investigation into his case, as conducted by his

16

first counsel Mr. Cameron, was inappropriate. Id. at 4. This claim does not allege with

17

sufficient specificity any conduct and warrants dismissal.

18

Moreover, Petitioner cannot show that he suffered any prejudice as a result of any

19

alleged deficiency in the conduct of any of his counselors. If a jury would have convicted him

20

of the same offense, Petitioner likely would have faced a longer range of possible sentences

21

by virtue of the inclusion of the § 851 enhancement which the Government dismissed as a

22

condition of the guilty plea and mandated a minimum sentence of twenty (20) years. If, as

23

Petitioner alleges, he was found to have possessed less than 50 grams, the inclusion of the

24

§ 851 enhancement would have mandated a statutory minimum sentence of ten (10) years-the

25

same minimum he faced under his plea agreement. Thus, Petitioner can show no prejudice

26

from any alleged ineffective representation by any of his counselors.

27

///

28

///
4

CONCLUSION

1
2
3

For the foregoing reasons, IT IS ORDERED that the Petition for Relief under 28 U.S.C.
§ 2255 on Motion to Vacate, Set Aside, or Correct Sentence (#155) is DENIED.

4
5

DATED: This 26th

day of July, 2011.

6
7
8

_________________________________
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5