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Moreno-Ontiveros v. United States

United States District Court, N.D. Texas, Dallas Division

May 2, 2019

VICTOR HUGO MORENO-ONTIVEROS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.

         Movant Victor Hugo Moreno-Ontiveros, a federal prisoner, filed a pro se motion to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. The district court referred the resulting civil action to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, the § 2255 motion should be denied.

         I.

         Movant pleaded guilty to use of a cellphone in causing or facilitating the commission of felonies under the Controlled Substances Act, in violation of 21 U.S.C. §§ 843(b) and (d)(1), and the district court sentenced him to 41 months in prison. The Fifth Circuit Court of Appeals dismissed his appeal as frivolous. United States v. Moreno-Ontiveros, 707 Fed.Appx. 249 (5th Cir. 2017).

         In his § 2255 motion, Movant argues:

         1. His guilty plea was involuntary;

         2. He received ineffective assistance of counsel when his trial counsel failed to interview witnesses, raise defenses, consult with him, negotiate a plea agreement that was beneficial to him, provide exculpatory evidence, present mitigating evidence, object to the drug quantity, and raise the defense of entrapment;

         3. The trial court erred when it:

(a) failed to order that Movant attend a drug rehabilitation program;
(b) allowed testimony from certain government witnesses even though the government did not provide proper notice of this testimony;
(c) imposed an obstruction enhancement;
(d) improperly admitted cocaine evidence;
(e) failed to declare a mistrial when the government introduced evidence of other offenses;

         4. The government breached the plea agreement when it objected to the finding in the pre-sentence report (“PSR”) that Movant could not pay a fine;

         5. His conviction is invalid because the government entrapped him; and

         6. The evidence was insufficient to support the conviction.

         II.

         In 2013, the FBI received information from a confidential informant (“CS-1”) that a person known as “Chuy” distributed multi-kilogram quantities of cocaine in the Dallas, Texas, area. (ECF No. 41 at ¶ 9, No. 3:16-cr-00171-D-2.) Agents determined that Chuy was Movant's co-defendant Felix Cervantes. (Id.) Agents also received information from a second confidential informant (“CS-2”) that Movant was Cervantes's source of supply. (Id. at ¶ 10.)

         FBI agents obtained a warrant to wiretap Cervantes's phone. (Id. at ¶ 11.) Agents also arranged several controlled purchases of cocaine from Cervantes. For example, on May 30, 2013, agents used CS-1 to arrange a purchase of cocaine from Cervantes at a ranch in Dallas. (Id. at ¶ 12.) When CS-1 arrived at the ranch, Cervantes obtained a bag of cocaine and provided it to CS-1. (Id.) Forensic testing confirmed the drug was cocaine hydrochloride with a net weight of 25.6 grams and purity of 24.9 percent. (Id.) Later, on June 18, 2013, agents arranged a second purchase from Cervantes by CS-1. (Id. at ¶ 13.) Forensic testing showed the net weight of the cocaine was 108.2 grams with a purity of 27.3 percent. (Id.) On ...


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