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Barba-Ortiz v. United States

United States District Court, S.D. Mississippi, Southern Division

December 9, 2014

DIEGO BARBA-ORTIZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:12cr103-LG-RHW-1

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

LOUIS GUIROLA, Jr., Chief District Judge.

BEFORE THE COURT is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [71] filed by Diego Barba-Ortiz. Barba-Ortiz's former attorney, Mr. Albert Necaise, filed a sworn response in opposition to the Motion, but the Government did not file a response. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that Barba-Ortiz's § 2255 Motion should be denied.

BACKGROUND

Barba-Ortiz pled guilty to one count of possession with intent to distribute more than fifty grams of actual methamphetamine. He signed a plea agreement containing a waiver of his right to contest the conviction and sentence or the manner in which that sentence was imposed on appeal or in an post-conviction proceeding. (Plea Agreement at 4, ECF No. 59; Tr. at 12, ECF No. 75).

At the change of plea hearing, Barba-Ortiz testified under oath that he was satisfied with the amount of time his attorney, Mr. Necaise, had spent with him and the advice Mr. Necaise had given him. (Tr. at 6, ECF No. 75). He also stated that he had no complaints with Mr. Necaise's representation and that Mr. Necaise had explained the charges filed against him as well as any possible defenses. ( Id. at 6-7, 10). Barba-Ortiz further testified that no one had threatened him, forced him, or otherwise coerced him to plead guilty, and he was pleading guilty freely and voluntarily. ( Id. at 11). He also expressed his understanding of the rights that he was waiving by pleading guilty as well as the potential sentencing range. ( Id. at 7-9, 12-13). He conceded that no one had made any promises that were not contained in the plea agreement and supplement. ( Id. at 12). Finally, Barba-Ortiz testified that he was guilty of possession with intent to distribute more than fifty grams of actual methamphetamine. ( Id. at 13-14).

A sentencing hearing was held on September 5, 2013. Barba-Ortiz told the Court that he had reviewed the Presentence Investigation Report (PSR) with his attorney. When he was asked whether there were any errors in the PSR, Barba-Ortiz stated that the PSR was incorrect because it classified him as the organizer of the crime at issue. (Tr. at 2-3, ECF No. 74). The Court noted that Mr. Necaise had filed a written objection on that basis, so the Court heard argument concerning whether Barba-Ortiz was the organizer or leader of the crime at issue. ( Id. at 3-4). At the conclusion of the arguments and after reading Mr. Necaise's written objection, the Court found that an enhancement should be imposed as to Barba-Ortiz, because he was an organizer, leader, manager, or supervisor pursuant to USSG § 3B1.1(c). ( Id. at 5; Supplemental Addendum to PSR at 1-2, ECF No. 63-2). Barba-Ortiz was also granted a three-level reduction for acceptance of responsibility. (Tr. at 3, ECF No. 74; Supplemental Addendum to PSR at 2, ECF No. 63-2). Mr. Necaise noted that the guideline range was 210 to 262 months, and the Government and Mr. Necaise agreed that a sentence reflecting the lowest end of the guidelines (210 months) should be imposed. ( Id. at 5). At the conclusion of the sentencing hearing, Judge Walter J. Gex, III, sentenced Barba-Ortiz to serve 210 months imprisonment and five years of supervised release. ( Id. at 6). Judge Gex also granted the Government's Motion to Dismiss the remaining count in the indictment - conspiracy to distribute a controlled substance pursuant to the plea agreement. ( Id. at 9).

Barba-Ortiz filed a pro se Notice of Appeal on September 11, 2013. The United States Court of Appeals for the Fifth Circuit entered an order dismissing the appeal for want of prosecution on October 21, 2013. Barba-Ortiz filed the present Motion on August 29, 2014. He asks the Court to vacate the sentence imposed against him and remand the case for re-sentencing for the following reasons:

1. violation of 18 U.S.C. § 3553(a) in "calculating relevant conduct;"
2. failure of counsel to negotiate a more favorable plea agreement;
3. failure of counsel to adequately counsel his client;
4. failure of counsel to raise the defenses of entrapment and entrapment by estoppel;
5. failure of counsel to subject the Government's case to any meaningful adversarial testing;
6. the plea was not voluntary;
7. failure of counsel to argue that Barba-Ortiz was not in a ...

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