United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters Judge
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.
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
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.
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).
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).
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
did not appeal. His conviction became final on November 4,
2016. See Gonzalez v. Thaler, 565 U.S. 134, 150
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.
Claims and Analysis
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.
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 ...