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United States v. Villalobos

United States District Court, D. Montana, Billings Division

November 19, 2018

UNITED STATES OF AMERICA, I Plaintiff/Respondent,
v.
MICHAEL VINCENT VILLALOBOS, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters Judge

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

         The Court has consulted the court reporter's rough transcript of Villalobos's change of plea hearing. Pursuant to 28 U.S.C. § 753(f), the United States will be required to order the transcript for the Court's file and for Villalobos.

         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

         On January 21, 2016, a grand jury indicted Villalobos and three co-defendants on one count of conspiring to possess 50 grams or more of a substance containing methamphetamine with intent to distribute it, a violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1); one count of possessing or aiding and abetting possession of the same, a violation of 21 U.S.C. § 841(a)(1) (Count 2); and one count of money laundering, a violation of 18 U.S.C. § 1956(a)(1) (Count 3). If convicted on Counts 1 or 2, Villalobos faced a mandatory minimum sentence of five years in prison. See Indictment (Doc. 1) at 1-4; 21 U.S.C. § 841(b)(1)(B). Initially, Assistant Federal Defender David Merchant was appointed to represent Villalobos, see Order (Doc. 34), but Villalobos later retained attorney David Scott Freedman, see Notice of Appearance (Doc. 45).

         On May 23, 2016, the parties filed a fully executed plea agreement. Villalobos agreed to plead guilty to Counts 1 and 3. The United States agreed to dismiss Count 2, to recommend a three-level reduction for acceptance of responsibility, and to seek a variance if the total offense level was elevated as a result of the money laundering conviction. Both parties conditionally agreed to waive appeal of the sentence. See Plea Agreement (Doc. 73) at 2 ¶ 2, 6-7 ¶ 6, 7 ¶ 8. Villalobos pled guilty in open court on June 10, 2016. See Minutes (Doc. 85).

         At sentencing, Villalobos's total offense level was 31. With a criminal history category of II, his advisory guideline range was 121 to 151 months. Villalobos was sentenced to serve 130 months in prison, to be followed by a five-year term of supervised release. See Minutes (Doc. 114); Judgment (Doc. 116) at 2-3; Statement of Reasons (Doc. 117) at 1 § III.

         Villalobos did not appeal. His conviction became final on November 4, 2016. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

         On August 10, 2018, the Court received an unsigned motion under 28 U.S.C. § 2255. Villalobos submitted an identical signed motion on August 24, 2018 (Doc. 146). The motion is probably untimely, see 28 U.S.C. § 2255(f)(1), but there is no need to decide the issue.

         III. Claims and Analysis

         Villalobos claims that the United States breached the plea agreement by failing to dismiss a count, that his sentence should have been limited by the terms of his plea, that his base offense level was incorrectly calculated, and that counsel was ineffective for failing to object to the quantity and type of drugs attributed to him. See Mot. § 2255 (Doc. 146) at 3, 4, 6, 7. These claims are all based on an inaccurate understanding or recollection of what happened.

         The claim of breach arises from a typographical error in the plea agreement. The United States agreed to dismiss Count 2, see Plea Agreement at 2 ¶ 2 (second paragraph), 3 ¶ 3, and it did just that at sentencing, see Sentencing Tr. at 19:11-16; Judgment (Doc. 116) at 1. The plea agreement generally described the money laundering count as "Count II," when it should have said "Count III," but the Indictment did not change. Count 3 of the indictment alleged money laundering, and Count 2 did not. Thus, when the plea agreement addressed money laundering, it could only be understood to mean Count 2. See Plea Agreement at 2 ¶ 2 (fourth sentence), 3 ¶ 4. The plea agreement and the offer of proof both set forth the elements of money laundering. See Id. at ...


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