United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
MORRIS, UNITED STATES DISTRICT COURT JUDGE
case comes before the Court on Defendant/Movant
Rodriguez's motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Rodriguez is a federal
prisoner proceeding pro se.
motion is subject to preliminary review before the United
States is required to respond. The Court must determine
whether “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b); see also
Rule 4(b), Rules Governing Section 2255 Proceedings for the
United States District Courts.
petitioner “who is able to state facts showing a real
possibility of constitutional error should survive Rule 4
review.” Calderon v. United States Dist.
Court, 98 F.3d 1102, 1109 (9th Cir. 1996)
(“Nicolas”) (Schroeder, C.J.,
concurring) (referring to Rules Governing § 2254 Cases).
It reamins the duty of the Court “to screen out
frivolous applications and eliminate the burden that would be
placed on the respondent by ordering an unnecessary
answer.” Advisory Committee Note (1976), Rule 4, Rules
Governing § 2254 Cases, cited in Advisory
Committee Note (1976), Rule 4, Rules Governing § 2255
was charged with 19 other defendants in a 24-count indictment
alleging crimes involving drugs, firearms, and money
laundering. Rodriguez was charged with conspiracy to possess
with intent to distribute, and to distribute, at least 500
grams of a substance containing methamphetamine, a violation
of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1);
possession of at least 50 grams or more of actual
methamphetamine with intent to distribute it, a violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 5);
conspiracy to possess firearms in furtherance of federal drug
trafficking crimes alleged in Counts 1 through 13, a
violation of 18 U.S.C. § 924(c) and (o) (Count 14);
possession of multiple firearms in furtherance of the drug
trafficking crimes alleged in Counts 1 and 5, a violation of
18 U.S.C. §§ 2 and 924(c)(1)(A) (Count 20); and
conspiracy to launder money, a violation of 18 U.S.C. §
1956(a)(1)(A)(i) (Count 23). Indictment (Doc. 26). If
convicted of all counts, Rodriguez faced a mandatory minimum
sentence of ten years in prison and a maximum sentence of
life in prison. CJA counsel Palmer Hoovestal was appointed to
represent Rodriguez. Order (Doc. 13).
February 10, 2015, Rodriguez pled guilty to Counts 1, 14, and
23-that is, the three conspiracy counts-and admitted the
forfeiture counts. At the change of plea hearing, Rodriguez
agreed the United States could introduce evidence to support
its offer of proof. See Change of Plea Tr. (Doc.
778) at 37:15-45:5; Offer of Proof (Doc. 427) at 8-12.
presentence report was prepared. Rodriguez was held
responsible for the equivalent of 30, 000 to 90, 000
kilograms of marijuana, for a base offense level of 36. He
received two two-point enhancements for possession of a
firearm and for his money-laundering conviction. He received
a four-point enhancement because he was an organizer or
leader in the conspiracy. He received a three-level reduction
for acceptance of responsibility. His total adjusted offense
level was 41. Presentence Report ¶¶ 66-76. With a
criminal history category of II, his advisory guideline range
was 360 months to life. Presentence Report ¶¶ 81,
7, 2015, Hoovestal moved to withdraw as counsel due to an
irretrievable breakdown in his ability to communicate with
Rodriguez. The Court granted the motion and appointed
Kathleen DeSoto in Hoovestal's stead. Mot. to Withdraw
(Doc. 675); Orders (Docs. 677, 689).
avoid sentencing disparities with Rodriguez's
co-defendants, the Court granted the United States'
motion to vary downward two levels to negate the money
laundering enhancement. See Sentencing Tr. (Doc.
779) at 5:24-6:7; Plea Agreement (Doc. 428) at 23 ¶ 6
para. 2. The Court also varied downward to reach a reasonable
sentence. Statement of Reasons (Doc. 761) at 3 ¶¶
VI(C), (D). Rodriguez was sentenced to a total term of 270
months in prison, to be followed by five years'
supervised release. Judgment (Doc. 760) at 2-3; Minutes (Doc.
appealed. His conviction was affirmed and his appeal as to
his sentence was dismissed as waived by the plea agreement.
Memorandum (Doc. 814) at 2, United States v.
Rodriguez, No. 15-30185 (9th Cir. Apr. 1, 2016); Plea
Agreement at 24 ¶ 8.
timely filed his § 2255 motion on March 25, 2016. 28
U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S.