McCoy v. USA

Filing 9

***PLEASE DISREGARD - ENTRY ERROR*** MEMORANDUM DECISION: It is therefore ORDERED that Petitioners Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Docket No. 1 in Case No. 2:17-CV-1137 TS) is DENIED. It is further ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an evidentiary hearing is not required. It is further ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court DENIES 7 Motion for Certificate of Appealability. Signed by Judge Ted Stewart on 12/20/17. (jlw) Modified on 12/20/2017 by adding error message (jlw).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING MOTION UNDER 28
U.S.C. § 2255 TO VACATE, SET ASIDE
OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY

CHRISTIAN LUIS RAMIREZ,
Petitioner,
v.
UNITED STATES OF AMERICA,

Civil Case No. 2:17-CV-1137 TS
Criminal Case No. 2:16-CR-527 TS

Respondent.

District Judge Ted Stewart
This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside or Correct Sentence by a Person in Federal Custody. For the reasons discussed below,
the Court will deny the Motion and dismiss this case.
I. BACKGROUND
On October 19, 2016, Petitioner was charged with possession of methamphetamine with
intent to distribute. On February 13, 2017, Petitioner pleaded guilty. On May 1, 2017, Petitioner
was sentenced to 60 months in the custody of the Bureau of Prisons. Petitioner did not file a
direct appeal. He timely filed the instant Motion on October 17, 2017.
II. DISCUSSION
Petitioner’s Motion raises claims of ineffective assistance of counsel. Petitioner argues
that counsel was ineffective in failing to challenge the drug type and quantity involved in his
case. Petitioner also argues that his counsel was ineffective at sentencing.
The Supreme Court has set forth a two-pronged test to guide the Court in making a
determination of ineffective assistance of counsel. “To demonstrate ineffectiveness of counsel,

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[Petitioner] must generally show that counsel’s performance fell below an objective standard of
reasonableness, and that counsel’s deficient performance was prejudicial.” 1 To establish
prejudice, Petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” 2
A court is to review Petitioner’s ineffective-assistance-of-counsel claim from the
perspective of his counsel at the time he or she rendered the legal services, not in hindsight. 3 In
addition, in evaluating counsel’s performance, the focus is not on what is prudent or appropriate,
but only what is constitutionally compelled. 4 Finally, “[t]here is a strong presumption that
counsel provided effective assistance, and a section 2255 defendant has the burden of proof to
overcome that presumption.” 5
Petitioner first argues that his counsel was ineffective for failing to challenge the
Indictment and sentence based on the government’s alleged failure to identify the controlled
substance at issue. Petitioner relies heavily on cases analyzing the Controlled Substance
Analogue Enforcement Act. Petitioner seems to suggest that he possessed “bath salts” and that
the government failed to prove that the substance he possessed was a controlled substance or its
analogue. 6 In particular, Petitioner argues that the government failed to show that he knew that

1

United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 690 (1984)).
2

Strickland, 466 U.S. at 694.

3

Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998).

4

United States v. Cronic, 466 U.S. 648, 665 n.38 (1984).

5

United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000) (quoting United States
v. Williams, 948 F. Supp. 956, 960 (D. Kan. 1996)).
6

A “controlled substance analogue” is a substance:
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the substance had effects similar to a controlled substance under Schedule II. However,
Petitioner was not charged with possessing “bath salts” or any other controlled substance
analogue. He was charged with possession of methamphetamine with intent to distribute. Both
the Indictment and Superseding Information make clear that the controlled substance at issue
was methamphetamine. Further, Petitioner admitted in his plea agreement that he knowingly
possessed approximately 9 kilograms of methamphetamine with the intent to distribute. There is
no question that methamphetamine is a controlled substance. 7 Therefore, Petitioner’s reliance on
these cases is misplaced and the Court cannot conclude that counsel was ineffective for failing to
challenge the government’s claim that Petitioner possessed methamphetamine. Moreover,
Petitioner cannot show prejudice based on his admission in his plea agreement that he knowingly
possessed methamphetamine.
Petitioner also argues that counsel was ineffective in failing to investigate whether the
methamphetamine involved was L-methamphetamine or D-methamphetamine. “There was
nothing improper in this, as the operative statutes do not distinguish among types of

(i) the chemical structure of which is substantially similar to the chemical structure of a
controlled substance in schedule I or II;
(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous
system that is substantially similar to or greater than the stimulant, depressant, or
hallucinogenic effect on the central nervous system of a controlled substance in schedule
I or II; or
(iii) with respect to a particular person, which such person represents or intends to have a
stimulant, depressant, or hallucinogenic effect on the central nervous system that is
substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect
on the central nervous system of a controlled substance in schedule I or II.
21 U.S.C. § 802(32)(A).
7

United States v. Garcia, 413 F. App’x 57, 61 (10th Cir. 2011) (stating that
“methamphetamine is a Schedule II substance”).

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methamphetamine, and, consequently, ‘[t]o convict a defendant, the prosecution must prove [or
the defendant must admit] . . . only that the substance was generically methamphetamine.’” 8
Petitioner cites to a number of cases that have held that counsel was ineffective in failing
to distinguish between types of methamphetamine for sentencing purposes. However, “as of
November 1, 1995, this distinction between methamphetamine types has been eliminated, and Lmethamphetamine is now treated the same as D-methamphetamine under the Guidelines.” 9
Because the distinction is irrelevant, counsel was not ineffective in failing to raise it. 10
Petitioner also argues that counsel was ineffective at sentencing in failing to argue for a
lesser sentence under the factors set forth in 18 U.S.C. § 3553(a). Petitioner’s argument,
however, ignores that his sentence arose out of an agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C). 11 This agreement contemplated a sentence of 60 months, which was half
of what was called for by the guidelines. The Court ultimately imposed the sentence called for
by the parties’ agreement. Based upon these facts, Petitioner cannot show either deficient
performance or prejudice as a result of counsel’s alleged failures.

8

United States v. Glover, 97 F.3d 1345, 1347 (10th Cir. 1996) (quoting United States v.
Deninno, 29 F.3d 572, 579–80 (10th Cir. 1994)).
9

Id. at 1347 n.2 (quoting United States v. Watkins, 912 F. Supp. 417, 419 n. 4 (E.D. Ark.

1996)).
10

Petitioner further argues that counsel was ineffective for not challenging Petitioner’s
role in the conspiracy. However, Petitioner was not charged with or convicted of conspiracy.
11

Under Rule 11(c)(1)(C), the parties can “agree that a specific sentence or sentencing
range is the appropriate disposition of the case.” Fed. R. Crim. P. 11(c)(1)(C). Once the Court
accepts the plea agreement, that recommendation or request becomes binding on the Court. Id.

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III. CONCLUSION
It is therefore
ORDERED that Petitioner’s Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or
Correct Sentence by a Person in Federal Custody (Docket No. 1 in Case No. 2:17-CV-1137 TS)
is DENIED. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required. It is further
ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court
DENIES Petitioner a certificate of appealability.
DATED this 20th day of December, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

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