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United States v. Ortiz-Arias

United States District Court, D. Arizona

July 3, 2019

United States of America, Plaintiff,
v.
Cristo Rey Ortiz-Arias, Defendant/Movant.

          ORDER

          CINDY K. JORGENSON UNITED STATES DISTRICT JUGDE.

         Pending before the Court is the Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (“Amended Motion”) (CV 17-429, Doc. 4) filed by Movant Cristo Rey Ortiz-Arias (“Ortiz-Arias”). A response (CV 17-429, Doc. 8) has been filed by the government. Additionally, Ortiz-Arias filed an additional Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Second Amended Motion”) (Doc. 7). This Second Amended Motion does not indicate a copy has been served on the government; the government has not filed a response to the Second Amended Motion.

         I. Factual and Procedural Background

         On June 8, 2016, Ortiz-Arias was indicted on one count of Conspiracy to Possess with Intent to Distribute Marijuana, one count of Possession with Intent to Distribute Methamphetamine, one count of Conspiracy to Import Methamphetamine, and one count of Importation of Methamphetamine (CR 16-1145, Doc. 8). On November 3, 2016, Ortiz-Arias pleaded guilty to Conspiracy to Import Methamphetamine pursuant to a plea agreement (CR 16-1145, Docs. 22 and 23).

         The plea agreement provided Ortiz-Arias could withdraw from the plea agreement if he received a sentence in excess of stipulated ranges, based on his criminal history category, set forth in the plea agreement. Additionally, the plea agreement stated:

If the defendant moves for any adjustments in Chapters Two, Three, or Four of the Sentencing Guidelines or any “departures” from the Sentencing Guidelines, the government may withdraw from this agreement with the exception of a mitigating role adjustment under U.S.S.G. § 3B.1.2.

         Plea Agreement (CR 16-1145, Doc. 23, p. 4). The plea agreement also provided:

Provided the defendant receives a sentence in accordance with this fast-track plea agreement, the defendant waives (1) any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the indictment or information; and (2) any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction . . ., the entry of judgment against the defendant, or any aspect of the defendant's sentence-including the manner in which the sentence is determined an any sentencing guideline determinations. The sentence is in accordance with this agreement if the sentence imposed does not exceed 188 months imprisonment. The defendant further waives: . . . (4) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack . . . The defendant acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his/her conviction or sentence in this case. If the defendant files a notice of appeal or a habeas petition, notwithstanding this agreement, defendant agrees that this case shall, upon motion of the government, be remanded to the district court to determine whether defendant is in breach of this agreement and, if so, to permit the government to withdraw from the plea agreement. This waiver shall not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of “prosecutorial misconduct” (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015)).

(Id. at 5-6).

         The pre-sentence report calculated a guideline range with a total offense level computation of “31" and a role assessment adjustment of “none.” PSR (Doc. 27, pp. 4-5) Counsel for Ortiz-Arias filed an Objection to the PSR arguing Ortiz-Arias' “participation in the grand scheme of the criminal activity warrants a mitigating role designation/adjustment” because he was substantially less culpable than other participants:

Specifically, (1) Defendant's task was to drive a car from Mexico to the United States. (2) Mr. Ortiz-Arias did not know where the drugs were hidden in the car. (3) Defendant did not know what type of drug was hidden in the car. (4) Defendant was not the owner of the methamphetamine in this case. (5) He was not told who owned the drug. (6) Defendant did not know who it was going to be delivered to. (6) Mr. Ortiz-Arias was insulated from the decision-making process of the criminal activity. (7) Defendant had no authority to dictate how this criminal activity transpired. (8) He had no knowledge of the scope and structure of the criminal activity. (9) Defendant had no proprietary interest in the criminal activity. (10) Lastly, Mr. Ortiz-Arias had no influence and no discretion as to the overall criminal activity.

         Objection (Doc. 28, pp. 2-3). The government filed a response.[1] Counsel for Ortiz-Arias also filed a Sentencing Memorandum in which he discussed, inter alia, a minimum role reduction and Ortiz-Arias' history and characteristics (e.g., business owner, parent, family provider, and but for this case, a tax-paying and law-abiding citizen of Mexico with no prior criminal history in the United States or in Mexico).

         During the January 13, 2017, sentencing in this matter, counsel argued Ortiz-Arias was entitled to a minor role adjustment. The Court sustained that objection and found Ortiz-Arias was entitled to a minor role reduction of two levels based on his role in the case. Counsel also argued Ortiz-Arias' history and characteristics warranted a mitigating variance. Ortiz-Arias was sentenced to the custody of the Bureau of Prisons for a term of 41 months, to be followed by three years supervised release.

         On August 28, 2017, Ortiz-Arias filed a document which was docketed as a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (CV 17-429, Doc. 1). Ortiz-Arias argued his sentence should be reduced because he is entitled to a minor role reduction and a reduction for aberrant behavior. The Court denied his petition as to these claims. Ortiz-Arias also raised a claim of ...


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