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United States v. Lopez-Rojas

United States District Court, D. Montana, Billings Division

August 10, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
LUIS FELIPE LOPEZ-ROJAS, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          SUSAN P. WATTERS UNITED STATES DISTRICT COURT

         This case comes before the Court on Defendant/Movant Luis Felipe Lopez-Rojas's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Lopez is a federal prisoner proceeding pro se.

         In reviewing the motion, the Court has consulted the court reporter's rough-draft transcript of the sentencing hearing held on March 1, 2017. The United States will be required to order the transcript for the file and for Lopez. See 28 U.S.C. § 753(f).

         I. 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). But the Court should "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

         Lopez was charged with one count of conspiracy to possess with intent to distribute 500 grams or more of a substance containing methamphetamine, a violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1); and one count of possessing the same with intent to distribute it, a violation of 21 U.S.C. § 841(a)(1) (Count 2). If convicted of either count, Lopez faced a statutory mandatory minimum sentence of 120 months. Lopez retained attorney Jack Sands for his defense. See 21 U.S.C. § 84l(b)(1)(A)(viii); Superseding Indictment (Doc. 28) at 2-3; Notice (Doc. 25).

         On October 12, 2016, the parties filed a plea agreement. Lopez agreed to plead guilty to Count 2 of the superseding indictment, and the United States agreed to dismiss the indictment and Count 1 of the superseding indictment. Lopez admitted he possessed 500 or more grams of a substance containing methamphetamine with the intent to distribute it. See Plea Agreement (Doc. 74) at 2¶2, 3¶4.

         On October 13, 2016, a change of plea hearing was held. Lopez's counsel pointed out that he intended to address relief under the safety valve at the time of sentencing. Lopez pled guilty in open court. Sentencing was set for February 2, 2017. See Minutes (Doc. 80); Orders (Docs. 93, 112); see also 18 U.S.C. § 3553(f); U.S.S.G. §5C1.2.

         When the sentencing hearing convened on February 2, 2017, Lopez had not debriefed with law enforcement officers. The parties agreed to continue the hearing, and sentencing was reset for March 1, 2017. See Minutes (Doc. 114); Order (Doc. 115).

         Despite the continuance, Lopez still had not been interviewed when sentencing reconvened on March 1. Detective Schillinger of the Billings Police Department testified, as did Lopez. The Court found Lopez did not qualify for the safety valve. The presentence report was adopted without change. The advisory guideline range was 135 to 168 months. Lopez was sentenced to serve 135 months in prison, to be followed by a five-year term of supervised release. See Minutes (Doc. 128); Am. Judgment (Doc. 133) at 2-3; Am. Statement of Reasons (Doc. 134) at 1 §§ I, III.

         Lopez did not appeal. His conviction became final on March 15, 2017. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on February 9, 2018. See 28 U.S.C. § 2255(f)(1).

         III. Claims and Analysis

         Lopez's § 2255 motion sets forth many points of law, but his claims are brief. See Mot. ...


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