United States District Court, D. Arizona
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge.
Jorge Luis Ontiveros-Ponce has filed a pro se Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C.
§ 2255. (Doc. 1.)
Summary of Conclusion.
raises two grounds for relief in his timely Petition.
Petitioner's claim in Ground One is meritless. Petitioner
rejected the government's plea offer because he refused
to accept a stipulation that required him to be sentenced
within the final advisory guideline range. Petitioner's
claim in Ground Two is procedurally defaulted and meritless.
Therefore, the Court will recommend that the Petition be
denied and dismissed with prejudice.
Facts of the Crimes.
Reporter's Transcript of Proceedings from the July 24,
2017 plea hearing lays out the following agreed upon facts.
On or about May 16, 2010, Petitioner was removed from the
United States to Mexico through Nogales, Arizona. (Doc. 4-8
at 16-17.) Petitioner did not obtain permission from the
Secretary of the Department of Homeland Security to return to
the United States after that removal. (Id.) On or
about November 22 of 2016, Petitioner was found in the United
States at or near Phoenix. (Id.) Petitioner admits
he was voluntarily present in the United States when he was
found. (Id.) Petitioner is not a citizen or national
of the United States, and there is no claim to dual
January 17, 2017, Petitioner was indicted on charges of
Reentry of a Removed Alien. (CR Doc. 8.) On June 2, 2017, the
prosecution filed a notice that Petitioner rejected the plea
offer and subsequently requested a
Frye hearing. (CR Docs. 17, 19.) On June 14,
2017, the court held a Frye hearing and confirmed
that Petitioner understood the implications of continuing to
trial. (CR Doc. 21.) At the Frye hearing, the
government advised Petitioner and the Court that
Petitioner's offense level was likely to be level 24 with
a criminal history category of 5 or 6. (CR Doc. 61 at
Petitioner was told his sentence could be up to 10 years of
imprisonment. (Id.) Petitioner's counsel advised
the Court that Petitioner was “having a difficult time
accepting any type of plea, especially one where, in certain
circumstances within this plea agreement, it says that the --
where we would be stipulating that the sentence would fall
within the guideline range and we would not have the
opportunity to request a variance downward.” (CR Doc.
61 at 5.) The Court and counsel stated:
THE COURT: Understood. So Ms. Aguilar, at present, has your
client made a decision with regard to accepting or rejecting
the plea offer?
MS. AGUILAR: Not really, Your Honor. I mean, the discussions
that we've had, he's indicated he doesn't want
this plea if it means he does have to be, you know, bound to
the guideline range and no variance downward which I
can't guarantee that wouldn't happen at sentencing.
But he's also told me that he doesn't really want to
go to trial either. He knows that at trial the offense level
would be higher regardless of where ...