United States District Court, W.D. Texas, El Paso Division
OCTAVIO SOLTERO-URIBE, Reg. No. 16184-480, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
BRIONES SENIOR UNITED STATES DISTRICT JUDGE.
Soltero-Uribe ("Soltero") challenges his sentence
through a motion under 28 U.S.C. § 2255 (ECF No.
43).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.
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.
AND PROCEDURAL HISTORY
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.
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,
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.
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.
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.
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.
did not appeal.
§ 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.
§ 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.").
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."
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.
§ 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.
"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.
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 ...