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United States v. Escobedo-Sanchez

United States District Court, D. Arizona

October 31, 2017

United States of America, Plaintiff/Respondent,
v.
Moises Alfredo Escobedo-Sanchez, Defendant/Movant.

          STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE.

         Defendant/Movant Moises Alfredo Escobedo-Sanchez (“Movant”), who is confined in the Federal Correctional Institution in Phoenix, Arizona, filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (CV 16-8307 (“CV”) Doc. 1; CR 15-8221 (“CR”) Doc. 26.) Plaintiff/Respondent United States of America (the “Government”) filed a Response. (CV Doc. 7.) Movant did not filed a Reply.

         BACKGROUND

         Movant was serving an Arizona state prison sentence when he was released to ICE custody on September 16, 2015, and charged in this Court with one count of Reentry of Removed Alien, in violation of 8 U.S.C. 1326(a), enhanced by (b)(1). (CR Doc. 1.) Movant had been sentenced in the Navajo County Superior Court for a drug trafficking offense, and was serving a two-and-a-half-year sentence when he was released to ICE custody. (CV Doc. 11, Exh. 8, sealed Presentence Investigation Report, at 7.) At the time, he had served 15 months of that sentence. (Id.) Movant also had two prior felony theft convictions he sustained in the state of Utah, and another felony prior conviction in 2011 for illegal reentry, for which he was sentenced to 15 months' imprisonment. (Id. at 6-7.) Movant had been previously removed from the United States to Nogales, Arizona on February 6, 2012. (CR Doc. 1.)

         Movant appeared for his initial appearance on September 17, 2015, and deputy Federal Public Defender Jon M. Sands (“Mr. Sands”) was appointed to represent him. (CR Doc. 2.)

         In September 2015, the Government offered Movant a “fast-track” plea offer. The record reflects that Mr. Sands discussed the plea offer with Movant and sent Movant a letter - in both Spanish and English - including a copy of the plea agreement. (CV Doc. 7, sealed September 30, 2015 attorney letter.) The letter explained the statutory maximum penalties, as well as counsel's estimate that the likely sentencing range would be 18 to 24 months' imprisonment. (Id.) The letter stated, in pertinent part,

You have been through the fast track previously, when you[] received a 15 months sentence in Utah. The fast track here is along the same lines, except that under the terms, and because of your criminal history, the deal results in the possibility of a longer sentence than you received in Utah. The reason is that the court and the prosecutor insist on the possibility of a longer sentence than the 15 months because it is your second conviction for illegal reentry. I have gotten the prosecutor to agree that I can ask for a lesser sentence. My argument would be that you have already served state time, and that punishment should count or be taken into consideration.

(Id.)

         Movant accepted the plea offer, and on October 20, 2015, appeared before U.S. Magistrate Judge Bridget Bade for a change-of-plea hearing. (CR Doc. 13.) During these proceedings, Movant confirmed under oath that he was satisfied with Mr. Sands' representation; that he was not threatened or coerced into the plea agreement; and that no promises, other than those written in the agreement, had been made to him - he also acknowledged that counsel's estimate of the likely sentencing range would not be binding on the sentencing judge. (CR Doc. 30 at 8, 10, 16-17, and 19-20.) Specifically, the following discussion took place, in pertinent part:

THE COURT: Did you go over your entire plea agreement with your attorney and then have your attorney answer all of your questions before you signed it?
THE INTERPRETER: Both, yes.
THE COURT: Do you feel that you had enough time to speak with your attorney about your plea agreement before you signed it?
THE INTERPRETER: Both, yes.
THE COURT: Do you feel that you understand your entire plea agreement?
THE INTERPRETER: Both, yes.
THE COURT: Mr. Escobedo, you have been represented by Mr. Sands. Have you been satisfied with that representation?
DEFENDANT ESCOBEDO: Yes.
...
THE COURT: Now, for both of you, in the last two days have you had any drugs or alcohol or medication of any kind, including any prescription medications?
THE INTERPRETER: Both, no.
THE COURT: Have you ever been treated for a mental or an emotional disorder?
THE INTERPRETER: Both no.
THE COURT: For Mr. Moises Escobedo, does either the government or defense counsel, Mr. Sands, have any reason to believe ...

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