Soltero-Uribe v. United States

          MEMORANDUM OPINION AND ORDER

          DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE.

         Octavio Soltero-Uribe ("Soltero") challenges his sentence through a motion under 28 U.S.C. § 2255 (ECF No. 43).^[1]Soltero is serving a 57-month term of imprisonment imposed by the Court after he pleaded guilty to conspiracy to distribute methamphetamine. He claims the Court erred in calculating his sentence and his counsel provided constitutionally ineffective assistance.

         Because it plainly appears from the motion and the record that Soltero is not entitled to relief, the Court will deny his motion. 28 U.S.C. foil. § 2255 Rule 4(b). The Court will additionally deny him a certificate of appealability.

         BACKGROUND AND PROCEDURAL HISTORY

         Soltero agreed to plead guilty, pursuant to a plea agreement, to count three of an indictment charging him with conspiracy to possess with the intent to distribute more than 500 grams of methamphetamine, a violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A)(viii) and 21 U.S.C. § 846. Plea Agreement 1, ECF No. 31 (sealed). As a part of the plea agreement, Soltero waived "the right to challenge [his] conviction or sentence in a post-conviction collateral challenge on any ground ... except... based on ineffective assistance of counsel or prosecutorial misconduct of constitutional dimension." Id. at 5.

         According to the factual summary attached to the plea agreement, Soltero was caught with 14.2 kilograms of methamphetamine in his car while entering El Paso, Texas, from Ciudad Juarez, Mexico:

On September 15, 2018, ... a Customs and Border Protection Officer (CBPO) encountered Octavio SOLTERO-Uribe as he arrived at primary inspection, at the Paso Del Norte Port of Entry in the Western District of Texas, driving a white 2008 Nissan Altima. The CBPO escorted SOLTERO-Uribe and the vehicle to secondary inspection.

Subsequently, a narcotics detector dog alerted to the quarter panel at the rear passenger side of the vehicle. The CBPO pulled back the carpet lining in the trunk, and discovered clear plastic bags containing a white, crystalized substance. Subsequently, SOLTERO-Uribe was placed under arrest. Fifteen clear plastic bags containing a white, crystalized substance, were tested for the properties of methamphetamine, which tested positive for the characteristics of methamphetamine. A lab report confirmed that the substance in SOLTERO-Uribe's [vehicle] was approximately 14212 grams of pure methamphetamine.

Id. at 9.

         Upon acknowledging his constitutional rights, Soltero claimed he responded to a job posting on Facebook offering drivers $500 per trip to transport currency from El Paso to Ciudad Juarez. He explained on September 15, 2018, he was instructed to take his vehicle to a convenience store in Ciudad Juarez and leave it there. He was later notified the car was ready for pick-up. When he took possession of the vehicle, he was instructed to drive it through a border crossing to a restaurant in El Paso and leave the keys under the driver's side floormat. He admitted he suspected the vehicle concealed narcotics but continued his participation in the venture as he felt he was being followed.

         The probation officer who prepared a presentence investigation report determined Soltero's base offense level was 34 under Sentencing Guideline § 2D 1.1. Presentence Investigation Report ¶ 14, ECF No. 288 (sealed). The probation officer recommended a two-level downward adjustment for "safety valve" pursuant to Sentencing Guideline §§ 2D1.1(b)(18) and 5C1.2(a)(1)-(5); a two-level downward adjustment for "minor role" pursuant to Sentencing Guideline § 3B 1.2(b); and a three-level downward adjustment for acceptance of responsibility pursuant to Sentencing Guideline § 3E1.1(a)-(b). Id. ¶¶ 15, 17, 21, 22. "Based upon a total offense level of 27 and a criminal history category of I, the guideline imprisonment range [was] 70 months to 87 months." Id. at ¶ 46.

         The Court determined an additional two-level downward adjustment was warranted because Soltero was a minimal participant. Statement of Reasons, ECF No. 42. The Court also determined the mandatory minimum sentence did not apply because Soltero qualified for the statutory "safety valve" provision at 18 U.S.C. § 3553(f). Id. As a result, the Court sentenced Soltero at the bottom of the revised guideline range to 57 months' imprisonment.

         Soltero did not appeal.

         In his § 2255 motion, Soltero asserts the Court lost subject matter jurisdiction when it miscalculated his sentencing range. Mot. to Vacate 6, ECF No. 43. He claims he did "not understand the nature of the constitutional protections that he [was] waiving" by pleading guilty because he had an "incomplete understanding of the charge." Id. at 7. He alleges the indictment failed to state an offense. Id. at 9. He also suggests the "cumulative" errors in the plea agreement and at sentencing, the failure to petition to dismiss the case due to "lost" evidence, "the failure to subject the Government's case to strict adversarial testing," coupled with the application of a non-guidelines sentence which he believes should have been time served by reason of an egregious sexual assault while in government custody, constitutes ineffective assistance of counsel. Id. at 10.

         APPLICABLE LAW

         A § 2255 motion '"provides the primary means of collateral attack on a federal sentence.'" Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)). Relief under § 2255 is warranted for errors that occurred at trial or at sentencing. Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131 (5th Cir. 1987). Before a court will grant relief, however, the movant must establish that (1) his "sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack." United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted). Ultimately, the movant bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980) (citing United States v. Kastenbaum, 613 F.2d 86, 89 (5th Cir. 1980)). "If it plainly appears from the motion... and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion..." 28 U.S.C. foll. § 2255 Rule 4(b); see also 28 U.S.C. § 2255(b) (2012); United States v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990) ("Faced squarely with the question, we now confirm that § 2255 requires only conclusive evidence-and not necessarily direct evidence-that a defendant is entitled to no relief under § 2255 before the district court can deny the motion without a hearing.").

         ANALYSIS

         A. Court Error

         Soltero first asserts the Court lost subject matter jurisdiction when it miscalculated his sentencing range. Mot. to Vacate 6, ECF No. 43. He contends "the district court incorrectly denied his offense level cap under U.S.S.G. Section 2D1.8(a)(2), and the wrong standard in determining why Soltero-Uribe was not granted Safety Valve." Id.

         Sentencing Guideline § 2D 1.8 addresses conspiracies to rent or manage a drug establishment. It is not relevant to calculating a sentence in Soltero's case for conspiracy to possess with the intent to distribute methamphetamine. Further, contrary to Soltero's assertion, the Court did grant him "safety valve." And Soltero waived "the right to challenge [his] conviction or sentence in a post-conviction collateral challenge on any ground ... except... based on ineffective assistance of counsel or prosecutorial misconduct of constitutional dimension." Plea Agreement 5, ECF No. 31.

         Furthermore, § 2255 motion is not a substitute for a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). When raising issues of jurisdictional or constitutional magnitude for the first time in a motion seeking collateral relief, a movant must either (1) demonstrate "cause" for not raising the issue on direct appeal and "actual prejudice" resulting from the error; or (2) show that he is "actually innocent" of the crime for which he was convicted. United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999). The cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard ... applied on direct appeal." Gaudet, 81 F.3d at 589.

         The "cause" standard requires the movant to show that "some objective factor external to the defense" prevented him from timely raising the claims he now advances. Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective factors that constitute cause include interference by officials that make compliance with the procedural rule impracticable, a showing that the factual or legal basis for the claim was not reasonably available to counsel at the prior occasion, and ineffective assistance of counsel in the constitutional sense. Id.

         "A mere possibility of prejudice will not satisfy the actual prejudice prong of the cause and prejudice test," and a movant must instead '"shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of ...