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United States v. Ramos

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

September 3, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,



         Defendant/Movant Miguel Antonio Ramos filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (D.E. 42). Pending before the Court is the United States of America's (the "Government") Motion to Deny Relief on the Record (D.E. 47), to which Movant has responded (D.E. 52). For the reasons stated herein, the Government's motion is GRANTED, and Movant's § 2255 motion is DENIED.

         I. BACKGROUND

         On June 26, 2009, this Court sentenced Movant to 100 months' imprisonment and 5 years' supervised release following his conviction in Case No. 2:08-CR-761-7 for conspiracy to possess with intent to distribute more than 5 kilograms of cocaine. On January 22, 2015, the Court reduced his sentence to 80 months under Amendment 782 to the Sentencing Guidelines. Movant was released later that year and began serving his term of supervised release on October 30, 2015.

         On November 4, 2016, the United States Probation Office (USPO) issued a Petition for Warrant or Summons for Offender under Supervision in Case No. 2:08-CR-761-7 alleging the following supervised release violations: assault causing bodily injury to a family member, criminal mischief, violation of a protective order, and tampering with a witness.

         The events giving rise to the supervised release violations and Movant's eventual i conviction for witness tampering in the above-captioned case began on September 4, 2016. At around 2:49 A.M., Movant was intoxicated and assaulted his girlfriend, Valerie Morales, at the home they shared. Morales received treatment at a hospital in Corpus Christi and gave a statement to a Corpus Christi Police Department (CCPD) officer naming Movant as her assailant. However, when Bryce Stark-the USPO officer assigned to Movant's supervision on the cocaine trafficking conviction-interviewed Morales over the telephone on September 12, 2016, she stated that an ex-boyfriend, not Movant, had assaulted her.

         Movant assaulted Morales again on November 13, 2016, when she was a passenger in his car. Morales eventually convinced Movant to stop at a convenience store, and she got out of the car and refused to get back in. A CCPD officer responded to an emergency call at the convenience store and interviewed Morales. She told the officer that Movant had assaulted her several times in the past, but the only one she reported was the September assault because she thought he had broken her jaw. After Movant drove past the convenience store, another officer followed and arrested him.

         During a December 6, 2016 interview with USPO officers, Morales revealed that Movant was present during her earlier telephone call with Officer Stark on September 12, 2016. Morales stated that Movant had threatened her not to cooperate with Officer Stark and told her during subsequent telephone calls from jail not to cooperate or provide any information to the USPO. Recordings of jail telephone conversations confirmed that in at least 22 calls between November 13, 2016 and December 7, 2016, Movant told Morales not to cooperate with or answer any questions from Officer Stark.

         On January 25, 2017, Movant was charged in a one-count indictment with knowingly attempting to intimidate, threaten, and corruptly persuade V.M. (Morales), a witness, by instructing her to withhold testimony and provide limited information to a United States District Court, with the intent to hinder, delay, and prevent the communication to a United States judge of information relating to the commission of a violation of conditions of supervised release, to wit: law violation of assault causing bodily injury to a family member, an allegation in a pending petition related to a supervised release violation revocation hearing in Case No. 2:08-CR-761-7, in violation of 18 U.S.C. § 1512(b)(3). On March 2, 2017, Movant pled guilty to tampering with a witness before a magistrate judge. This Court accepted the Findings and Recommendation on Plea of Guilty.

         The Presentence Investigation Report (PSR, D.E. 22) calculated Movant's base offense level at 14. Eight levels were added under U.S.S.G. § 2J1.2(b)(1)(B) because the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice; three levels were added under U.S.S.G. § 2J 1.2(b)(2) because the offense resulted in substantial interference with the administration of justice; and two levels were added under U.S.S.G. § 3A1. 1(b)(1) because Movant knew or should have known the victim of the offense was a vulnerable victim. After a two-level reduction for acceptance of responsibility, the PSR calculated a total offense level of 25 and a criminal history category of V. Defense counsel filed written objections to all three sentencing enhancements.

         The Court conducted a joint sentencing hearing on the instant witness tampering case and on the revocation of supervised release in Case No. 2:08-CR-761-7. 6/8/2017 Sent. Tr., D.E. 32. At the hearing, defense counsel renewed his written objections to the PSR, and the Court heard testimony from Officer Stark in order to resolve those objections. On September 12, 2016, Officer Stark received a phone message from Morales' mother stating that Movant had assaulted Morales and that Morales went to the hospital and reported the assault to the CCPD. Officer Stark immediately called Morales, but she stated that her ex-boyfriend, not Movant, had assaulted her. Morales agreed to meet with Officer Stark on September 14, 2016; however, she never showed up.

         After the USPO filed a petition to revoke supervised release on November 4, 2016, Officer Stark learned that Movant assaulted Morales again on November 13, 2016. In a December 6, 2016 statement, Morales acknowledged that Movant had also assaulted her on September 4, 2016, but while she was on the telephone with Officer Stark, Movant had instructed her not to cooperate. She also revealed that she had spoken with Movant while he was in jail and that he told her not to communicate, cooperate, or participate in any way with Officer Stark regarding the investigation of his violation of supervised release, and to stop her mother from speaking to Officer Stark. Movant also gave Morales explicit instructions on how to get his state charges dismissed and asked about her progress in doing so.

         Officer Stark obtained 890 recorded telephone calls made by Movant from both the Nueces County Jail and the Coastal Bend Detention Center, and he spent approximately 90 hours listening to the calls.[1] Afterwards, he gave the call logs to the Government, and the FBI conducted its own investigation. The USPO filed a superseding petition to revoke supervised release on January 11, 2017, which accounted for Morales' admission that Movant had in fact assaulted her in September 2016. This final petition to revoke was delayed for months because Officer Stark was unable to communicate with Morales regarding the information related to the September assault.

         Officer Stark testified that he believed Morales legitimately feared Movant based upon his meetings with her, the recorded jail conversations, and a specific discussion with her on December 6, 2016, when she told him that she feared for her life. Morales also told Officer Stark she feared for her children's lives because she believed Movant had access to a gun. On cross-examination, Officer Stark disagreed with defense counsel that the majority of the recorded jail conversations related to Movant's fears of Morales' alleged infidelity.

         After argument by counsel, the Court took a brief recess and reviewed the recorded jail conversations. The Court overruled Movant's objections related to threatening to cause physical injury and substantial interference with justice, but found that the two-level enhancement for vulnerable victim should not apply. The Court further found that Movant was entitled to a third point off for acceptance of responsibility. With a total offense level of 22 and criminal history category of V, Movant's recommended Guideline sentencing range was 77-96 months. The Court sentenced Movant to 84 months' imprisonment, to be followed by three years' supervised release.[2] Judgment was entered June 9, 2017.

         On appeal, Movant challenged the Court's application of the sentencing enhancements for threatening to cause physical injury and substantial interference with justice. United States v. Ramos, U.S.C.A. No. 17-40623, 731 Fed.Appx. 329, 330 (5th Cir.), cert, denied, 139 S.Ct. 277 (2018). The Fifth Circuit determined that the factual findings underlying the application of both enhancements were plausible in light of the record as a whole, and the district court did not clearly err in applying the enhancements. Id. at 331. The court affirmed Movant's conviction on May 16, 2018, and it became final on October 1, 2018, when the Supreme Court denied his petition for a writ of certiorari.

         Movant filed the current § 2255 motion on February 13, 2019. It is timely.


         Movant raises the following grounds for relief:[3]

A. Trial counsel was ineffective for failing to properly present arguments and evidence to the Court in support of his objections to ...

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