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United States v. Rodriguez

United States District Court, D. Montana, Great Falls Division

December 15, 2016

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JOSHUA ALBERTO RODRIGUEZ, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          BRIAN MORRIS, UNITED STATES DISTRICT COURT JUDGE

         This 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.

         I. Preliminary Review

         The 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.

         A 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 Proceedings.

         II. Background

         Rodriguez 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).

         On 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.

         A 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, 106.

         On May 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).

         To 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. 759).

         Rodriguez 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.

         Rodriguez timely filed his § 2255 motion on March 25, 2016. 28 U.S.C. § 2255(f)(1); Houston v. Lack, 487 U.S. 266, ...


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