Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Guerrero

United States District Court, S.D. Texas, Corpus Christi Division

January 9, 2017

UNITED STATES OF AMERICA
v.
ROSA ORALIA GUERRERO; aka ROSIE Civil Action No. 2:16-CV-325

          MEMORANDUM OPINION & ORDER.

          NEJ VA GONZALES RAMOS UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendant/Movant Rosa Oralia Guerrero's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. D.E. 129. Movant seeks a sentence reduction under Amendment 794 to the Sentencing Guidelines based on her allegedly minor role. The United States has moved to dismiss this action on the grounds that Movant waived her right to collaterally attack her sentence and the issue she raises is not cognizable under 28 U.S.C. § 2255. D.E. 140. For the reasons stated below, Movant's § 2255 motion is DENIED.

         I. Background

         On June 10, 2015, Movant was charged with conspiracy to possess with intent to distribute more than 1, 000 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). On September 3, 2015, Movant entered into a plea agreement with the Government in which she waived her right to appeal or collaterally attack her conviction or sentence. During rearraignment before the Magistrate Judge, Movant acknowledged that she had read the indictment, and she understood the charge and had discussed it with her attorney. Rearraignment Tr., D.E. 136, pp. 10-11. She also identified the plea agreement she signed and testified that she discussed it with her attorney before she signed it. Id., p. 9. The Magistrate Judge reviewed Movant's waiver of her right to appeal or collaterally attack her conviction or sentence. Id., pp. 29-30. Movant testified that she understood her rights and her waiver, and that she and her attorney had gone over the waivers before she signed the plea agreement. Id., pp. 30-31.

         The Magistrate Judge advised Movant of the minimum punishment of 10 years' imprisonment and the maximum punishment of life, followed by supervised release of 5 years up to life; a fine of up to $10, 000, 000; and a special assessment of $100. Id., p. 19- 20. Movant was advised that her guideline punishment range would be based upon the present offense and her criminal history using the Sentencing Guidelines. Id., pp. 23-24. She testified that she understood. Id., p. 24. Movant further testified that her decision to plead guilty was voluntary and that she had not been promised leniency or forced to plead guilty. Id. The Government outlined the facts it relied upon to charge Movant with conspiracy to possess with intent to distribute marijuana, and Movant agreed with the recitation. Id., pp. 36-51. This Court accepted the Findings and Recommendation on Plea of Guilty and ordered the Probation Office to prepare a Presentence Investigation Report. D.E. 73.

         Movant's base offense level, based on 5, 150.8 kilograms of marijuana, was 32. She received a two-level enhancement pursuant to U.S.S.G. § 3B1.1(b) because she was a manager or supervisor and the criminal activity involved more than five participants and was extensive. Her criminal history category was I, resulting in a guideline range of 168 to 210 months' imprisonment.

         At Movant's December 15, 2015 sentencing, the Court granted a three-level credit for acceptance of responsibility and a leadership role adjustment of two levels instead of three. This established a guideline sentence of 108 to 135 months' imprisonment; however, under the statutory minimum, Movant's guideline became 120 to 135 months. The Court adopted the PSR as modified and sentenced Movant to the mandatory minimum 120 months, to be followed by 5 years' supervised release. Judgment was entered the same day. Movant did not appeal.

         The judgment became final on January 1, 2016. Movant filed the present motion under 28 U.S.C. § 2255 on July 28, 2016. It is timely.

         II. Movant's Allegations

         Movant's § 2255 motion raises one claim: she is entitled to a sentence reduction under Amendment 794 to the United States Sentencing Guidelines.

         III. Analysis

         A. 28 U.S.C. § 2255

         There are four cognizable grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) constitutional issues, (2) challenges to the district court's jurisdiction to impose the sentence, (3) challenges to the length of a sentence in excess of the statutory maximum, and (4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Section 2255 relief “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).

         B. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.