United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUGDE.
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.
Factual and Procedural Background
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).
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
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.
Agreement (CR 16-1145, Doc. 23, p. 4). The plea agreement
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
(Id. at 5-6).
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
(Doc. 28, pp. 2-3). The government filed a
response. 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).
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.
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