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Villegas-Rodriguez v. United States

United States District Court, E.D. Missouri, Eastern Division

February 17, 2017

BULMARO VILLEGAS-RODRIGUEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Bulmaro Villegas-Rodriguez, a person in federal custody. Villegas-Rodriguez's § 2255 motion is fully briefed and ripe for disposition.

         I. Background

         Petitioner/defendant Bulmaro Villegas-Rodriguez, hereinafter defendant, was charged by way of grand jury indictment with six counts charging: conspiracy to distribute and possess with the intent to distribute more than 500 grams of methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 846 (Count I); conspiracy to kidnap, in violation of Title 18, United States Code, Sections 1201(a)(1) and (c) (Count II); and five counts of distribution of methamphetamine (Counts II, IV, V, VII and VIII), respectively. On June 26, 2014, defendant pled guilty pursuant to a plea agreement to Count I (conspiracy to distribute and possess with the intent to distribute more than 500 grams of methamphetamine) and Count II (conspiracy to kidnap). Under the terms of the plea agreement the government agreed: a) to move to dismiss Counts III, IV, VII and VIII at the time of sentencing; b) not to file any statutory enhancements based upon defendant's prior drug trafficking offense; and c) that no further federal prosecution would be brought in the Eastern District of Missouri with respect to conspiracy to distribute and possess with the intent to distribute methamphetamine and conspiracy to kidnap from April, 2013 to the time of the Indictment.

         A presentence report was prepared. The base offense level was determined to be level 36 based upon the quantity of methamphetamine, a two level increase was assessed for being an organizer, leader, manager or supervisor, one level was assessed as a multiple count adjustment, and three levels were subtracted for acceptance of responsibility resulting in a total offense level of 34. Defendant's total criminal history points were 13 resulting in a criminal history category of VI. The resulting advisory sentencing guideline range was 262 months to 327 months. Defendant was not determined to qualify as a Career Offender under the sentencing guidelines.

         On December 3, 2014, this Court sentenced defendant Villegas-Rodriguez to 262 months on each of Counts I and II to run concurrently. This sentence represented the bottom of the advisory applicable sentencing guideline range of 262 to 327 months.

         Peitioner Villegas-Rodriguez appealed his sentence. Appointed counsel moved to withdraw and in conjunction with the motion filed a brief in conformance with Anders v. California, 386 U.S. 738 (1967). On June 19, 2015, the Eighth Circuit affirmed the district court's judgment. U.S. v. Villegas-Rodriguez, 617 Fed.Appx. 597, 2015 WL 3796794 (2015) (unpublished). A petition for rehearing was denied on September 25, 2015. A writ of certiorari was filed on March 2, 2016 and denied on June 28, 2016.

         II. Discussion

         Defendant Villegas-Rodriguez, in his motion, seeks relief alleging ineffective assistance of counsel in two instances, specifically: a) counsel failed to advise him of the repercussions of the federal sentencing guidelines; and b) his mandatory minimum sentence was increased based upon his improper qualification as a career offender in light of the United States Supreme Court ruling in Johnson v. United States, 135 S.Ct. 2251 (2015). As established by the record and Court filings, defendant Villegas-Rodriguez fails to state a basis for relief. The record reflects that: a) defendant Villegas-Rodriguez was advised of and indicated his understanding of the applicable advisory federal sentencing guidelines and b) defendant Villegas-Rodriguez was not found to be a career offender and thus the Supreme Court decision in Johnson v. United States, 135 S.Ct. 2251 (2015) has no bearing on his sentence.

         The Government seeks to dismiss these allegations without a hearing. The Eighth Circuit in Engelen v. United States, 68 F.3d 238, 240-241 (8th Cir. 1995) stated that:

[A] petition can be dismissed without a hearing if (1) the defendant's allegations, accepted as true, would not entitle the defendant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. United States v. Rodriguez, 929 F.2d 747, 749-50 (1st Cir. 1991); see also, Holloway v. United States, 960 F.2d 1348, 1358 (8th Cir. 1992)(a single, self-serving, selfcontradicting statement is insufficient to render the motion, files and records of a case inconclusive); Larson v. United States, 905 F.2d 218, 220-221 (8th Cir. 1990)(evidentiary hearing not required if the facts alleged, taken as true, would not justify relief); Smith v. United States, 618 F.2d 507, 510 (8th Cir. 1980)(mere statement of unsupported conclusions will not suffice to command a hearing); cf. Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985)(explaining United States v. Unger, 665 F.2d 251 (8th Cir. 1981)(evidentiary hearing required where allegations are sufficiently specific and neither conclusory nor incredible in face of the record)).

         As further discussed, defendant's allegations in his motion are contradicted by the record in this case.

         Defendant challenges his sentencing asserting his claims under the umbrella of ineffective assistance of counsel. Defendant, during the plea colloquy, expressed his satisfaction with the representation received by counsel. (Plea Tr. 5) Regardless, in order to sustain an ineffective assistance of counsel claim, defendant must show that (1) “counsel's representations fell below an objective standard of reasonableness, ” Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.; Nguyen v. United States, 114 F.3d 699, 702-03 (8th Cir. 1997). In determining whether counsel's conduct was objectionably reasonable, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; Nguyen v. United States, 114 F.3d 699 (8thCir. 1997). Defendant has failed to meet either criteria with respect to the allegations of Ineffective assistance of counsel.

         Addressing the allegations, defendant Villegas-Rodriguez initially claims that counsel failed to advise him “that the federal sentencing guidelines would play such an integral part of the final sentence” and “of the multitude of enhancements that the court could impose based on the relevant conduct portions of the guidelines.” (Defendant's motion, page 12) This claim is undermined by the terms of the plea agreement and defendant's statements under oath at the plea colloquy. The plea agreement signed by defendant Villegas-Rodriguez expressly stated that the offense is affected by the U.S. Sentencing Guidelines. (Plea Agreement, paragraph 6) The plea agreement set out all of the possible adjustments and estimated that defendant's total offense level as 32, 34 or 36 depending upon certain application of certain guideline provisions. (Plea Agreement, paragraph 6) The total offense level of 34 determined by the United States Probation Office in the pre-sentence report was within the range anticipated in the plea agreement. Defendant acknowledged at the time of his ...


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