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United States v. Sanchez

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

May 23, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ISRAEL SANCHEZ, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE.

         Defendant/Movant Israel Sanchez filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255; motion for leave to file a § 2255 motion; and memorandum in support of his motion for leave to file a § 2255 motion. D.E. 1014, 1015, 1018.[1] Pending before the Court is the United States' (the "Government") motion to dismiss the § 2255 motion as untimely (D.E. 1028), to which Movant has not responded. For the reasons stated herein, the Government's motion to dismiss is GRANTED, and Movant's § 2255 motion is DENIED.

         I. BACKGROUND

         Movant pled guilty to conspiracy to possess with intent to distribute more than 1, 000 kilograms of marijuana and more than 5 kilograms of cocaine. He was sentenced to 336 months' imprisonment, to be followed by 5 years' supervised release, and ordered to pay a $100, 000 fine. Judgment was entered on May 14, 2009.

         Movant filed a pro se notice of appeal, but the Fifth Circuit dismissed the appeal for want of prosecution on June 26, 2009. An amended judgment was entered on July 16, 2009, to include the forfeitures of real property that were part of Movant's sentence. He did not appeal the amended judgment. He filed the current motion under § 2255 on January 4, 2019.

         II. MOVANT'S ALLEGATIONS

         Movant alleges that his 5-year term of supervised release was not authorized by statute. He further claims that trial counsel was ineffective in the following ways:

A. He failed to challenge the indictment and sentence based upon the statutory interpretation of 21 U.S.C. §§ 841(a)(1), 841(b)(A)(1), and 846, specifically whether the Government was required to prove the mens rea element regarding the type and quantity of the controlled substance involved;
B. He failed to move for dismissal of the money laundering charge when there was no proof of an underlying unlawful activity;
C. He failed to conduct a proper investigation and independent testing of the alleged cocaine;
D. He failed to object to drug quantity at sentencing; E. He failed to move for a downward departure based on the "victim's conduct";
F. He failed to give Movant written notice of his right to appeal; and
G. He failed to challenge the 4-level enhancement for being an organizer/leader.

         III. ...


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