United States District Court, D. Arizona
ORDER
Susan
R. Bolton United States District Judge
Defendant/Movant,
Artemio Pena-Torrecillas, filed his Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody on December 6, 2016. The Government
responded in Opposition and Movant filed a Reply. The
Government filed a Sur-Reply to which Movant filed a Reply.
In his motion Movant raised three grounds for relief. He
claimed that he received ineffective assistance of counsel
with regard to his guilty plea, that his “substitute
counsel” was ineffective, had a conflict of interest,
and “committed grave mistakes” and that his
appellate counsel was ineffective in failing to raise certain
issues on appeal. In his Reply, Movant raised additional
claims challenging the calculation of his base offense level
under the United States Sentencing Guidelines, claiming that
he was wrongly assessed a leadership enhancement for his role
in the offense and claiming that his defense attorney was
ineffective for failing to object to or correct either of
these alleged guideline calculation errors. The Magistrate
Judge issued her Report and Recommendation on November 8,
2018, to which Movant filed timely written objections. The
Magistrate Judge recommended that the motion be denied and
that a certificate of appealability also be denied.
Although
Movant raised numerous grounds in his Motion and Reply, as
detailed above, his objections are directed to only a few of
them. Therefore, this Court will only make a de novo
review of the claims in his Motion and/or Reply to which
Movant has raised objections to the Magistrate Judge's
Report and Recommendation.
Movant's
objections are limited to his claims that his offense level
was improperly calculated, that he was granted a leadership
role adjustment in error, and that his lawyer was ineffective
in failing to object to these errors at sentencing. Movant
also objects to the Magistrate Judge's recommendation
that his claim that he was improperly sentenced to a ten year
consecutive sentence failed to show ineffective assistance of
appellate counsel.
Movant's
first objection is that because the jury found him guilty of
three counts that included the finding that in each count he
was in possession with intent to distribute of 500 grams of
methamphetamine or more, that the total about of
methamphetamine the jury found he possessed was 1, 500 grams
and 1, 500 grams corresponds to guideline offense level 34.
Movant's objection and his argument in his Reply in
support of his Motion reflect that he misunderstands how the
guidelines are calculated. The jury's finding in three
counts that the amount of methamphetamine involved weighed
500 grams or more does not limit the Court in making its
guideline calculation to 1, 500 grams as Movant argues. The
guideline calculation is based on the evidence at trial that
the total weight of the methamphetamine involved in the
counts of conviction was sufficient to place Movant's
offense level at 38. Movant's objection is
overruled.[1]
Movant
also claims that he was denied effective assistance of
counsel because his lawyer failed to argue that he was
wrongly assessed a leadership enhancement for his role in the
offense. In his objection, Movant argues that in any
conspiracy charge can be only one leader not two and,
therefore, because one of his co-defendants was stated to be
the leader in the Indictment he could not also be assessed a
leadership enhancement. As the Magistrate Judge discussed,
the record in this case reflects that Movant's lawyer did
object to the leadership enhancement at sentencing and argued
against it. The Magistrate Judge quoted specific portions of
counsel's argument against the leadership enhancement. It
was the Court that rejected Movant's counsel's
argument. There can be no ineffective assistance of counsel
for failing to make an objection that counsel did make. The
objection is overruled.
Movant's
third objection concerns his view that he could only be
sentenced to the mandatory minimum sentence of five years for
his 18 U.S.C. § 924(c) conviction. Movant mistakenly
claims that 18 U.S.C. § 924(c)(1)(A)(i) is “a
mandatory provision of a sentence not to exceed five
years.” (Movant's objection, Doc. 32 at 3) Movant
asserts that only if he discharged a firearm could he be
given a ten year sentence for his firearms conviction. Movant
is wrong. The five year term in 18 U.S.C. §
924(c)(1)(A)(i) sentence is a mandatory minimum, not maximum,
sentence. It does not limit the sentence to five years. The
Court explained in detail its reasons why a sentence greater
than the mandatory minimum was appropriate in this case. In
the Report and Recommendation, the Magistrate Judge quoted
extensively from the sentencing transcript wherein the Court
explained why a sentence greater than the five year mandatory
minimum for possession of a firearm in furtherance of a drug
trafficking offense was being imposed. His appellate lawyer
was not ineffective in failing to raise this meritless issue
on appeal. Movant's objection is overruled.
IT IS
ORDERED overruling Movant's Objections to the Report and
Recommendation of the Magistrate Judge.
IT IS
FURTHER ORDERED adopting the Report and Recommendation of the
Magistrate Judge as the Order of this Court. (Doc. 29)
IT IS
FURTHER ORDERED denying and dismissing with prejudice
Movant's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody. (Doc. 1)
IT IS
FURTHER ORDERED denying a Certificate of Appealability and
leave to proceed in forma pauperis because Movant
has not made a substantial showing of the denial of a
constitutional right and because denial is justified by a
plain procedural bar and jurists of reason would not find the
procedural ruling debatable.
IT IS
FURTHER ORDERED directing the Clerk to enter judgment
accordingly.
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