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United States v. Rodriguez

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

March 30, 2017

UNITED STATES OF AMERICA
v.
HECTOR RUIZ RODRIGUEZ

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the Motion [280] of Defendant Hector Ruiz Rodriguez (“Defendant” or “Rodriguez”) to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255. The Government has filed a Response [284] in opposition to Rodriguez's Motion [280], and Rodriguez has filed a Response [286], which the Court construes as a Reply. After due consideration of the issues presented, the record, and relevant legal authority, the Court is of the opinion that Rodriguez's § 2255 Motion [280] should be denied without an evidentiary hearing.

         I. FACTS AND PROCEDURAL HISTORY

         On July 23, 2013, a Grand Jury returned a single-count Indictment [3] against Rodriguez and six co-Defendants. The original Indictment [3] charged

[t]hat beginning at least as early as 2012 and continuing up to the date of this indictment, in Pearl River County, in the Southern Division of the Southern District of Mississippi, and elsewhere, the defendants, HECTOR RUIZ RODRIGUEZ, HIGINIO HERNANDEZ RODRIGUEZ, MANUEL LUCERO RODRIGUEZ, LUIS HERNANDEZ FIGUEROA, BASSEY HOPKINS, NOEL ELIUD GONZALEZ MORALES and LLOYD DANTZLER, did knowingly conspire with others both known and unknown to the Grand Jury, to possess with intent to distribute 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana, a Schedule I non-narcotic drug controlled substance, as prohibited by Section 841(a)(1), Title 21, United States Code.
All in violation of Section 846, Title 21, United States Code.

Indictment [3] at 1.

         Rodriguez was placed on pretrial release, subject to certain conditions, after his initial appearance in the United States District Court for the Southern District of Texas. See Nov. 6, 2013, Minute Entry (arraignment in this Court). Rodriguez had an arraignment before a Magistrate Judge in this Court on November 6, 2013. See Id. At the arraignment, United States Magistrate Judge Robert H. Walker advised Rodriguez of the maximum and mandatory minimum penalty for the charge contained in the Indictment: not less than five years and up to 40 years in prison, up to a $5, 000, 000.00 fine, or both.

         On April 22, 2014, the Grand Jury returned a First Superseding Indictment [103] against Rodriguez and seven co-Defendants. Rodriguez was charged in Counts 1 and 3. Count 1 of the First Superseding Indictment charged

[t]hat beginning at least as early as 2011 and continuing up to the date of this indictment in Pearl River County, in the Southern District of Mississippi, and elsewhere, the defendants, HECTOR RUIZ RODRIGUEZ, JOSE GOMEZ ZENDEJA, HIGINIO HERNANDEZ RODRIGUEZ, MANUEL LUCERO RODRIGUEZ, LUIS HERNANDEZ FIGUEROA, BASSEY HOPKINS, NOEL ELIUD GONZALEZ MORALES and ASHLEY HOWELL, did knowingly conspire with others both known and unknown to the Grand Jury, to possess with intent to distribute 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana, a Schedule I non- narcotic drug controlled substance, as prohibited by Section 841(a)(1), Title 21, United States Code.

         * * * All in violation of Section 846, Title 21, United States Code.

         1st Superseding Indictment [103] at 1, 3. As for the quantity of marijuana involved in the conspiracy, Count 1 of the First Superseding Indictment alleged that

[w]ith respect to HECTOR RUIZ RODRIGUEZ, the amount involved in the conspiracy attributable to him as a result of his conduct, and the conduct of other conspirators reasonably foreseeable to him is 100 kilograms or more of marijuana.

Id. at 2.

         A jury trial on the First Superseding Indictment was held as to Rodriguez beginning on November 3, 2014. See Nov. 3, 2014, Minute Entry. Late on the night of November 4, 2014, “the Court was advised of a concern by the United States Attorney that the defendant was potentially attempting to flee.” Tr. [261] at 3. Based upon the information made known to the Court and pursuant to Federal Rule of Criminal Procedure 46(b), the Court signed an Order temporarily revoking Rodriguez's conditions of release pending the outcome of the trial. Id. at 3-6; see Order [223] at 1.

         The following day during the trial, November 5, 2014, Rodriguez elected to enter into a Plea Agreement [224] with the Government, and Rodriguez pleaded guilty to Count 1 of the First Superseding Indictment. See Nov. 5, 2014, Minute Entry. Rodriguez's Plea Agreement [224] with the Government provided, in relevant part, that Defendant

expressly waives the following rights (except that Defendant reserves the right to raise ineffective assistance of counsel claims):
a. the right to appeal the conviction and sentence imposed in this case, or the manner in which that sentence was imposed, on the grounds set forth in Title 18, United States Code, Section 3742, or on any ground whatsoever, and
b. the right to contest the conviction and sentence or the manner in which the sentence was imposed in any post-conviction proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255, and any type of proceeding claiming double jeopardy or excessive penalty as a result of any forfeiture ordered or to be ordered in this case . . . .

Plea Agreement [224] at 4-5.

         Rodriguez was sentenced on February 5, 2015, to a term of imprisonment of 192 months as to Count 1 of the First Superseding Indictment, and the Judgment [253] was entered on February 6, 2015. J. [253] at 1-2. The Court further ordered that upon release from imprisonment Rodriguez shall be placed on supervised release for a term of five (5) years as to Count 1. Id. at 3. The Court imposed a $25, 000.00 fine and a $100.00 special assessment. Id. at 5.

         On February 18, 2015, Rodriguez filed a Notice of Appeal [254]. On appeal,

Rodriguez argue[d] (1) that the district court lacked jurisdiction to impose a sentence outside the statutory maximum sentence authorized by his guilty plea, (2) the quantity of marijuana attributable to him required a jury finding, and (3) the factual basis is insufficient to establish drug quantity.

Op. [272] at 2. The Government filed a motion to dismiss the appeal, seeking to enforce Rodriguez's appeal waiver. Id.

         In an opinion issued on January 15, 2016, the United States Court of Appeals for the Fifth Circuit granted the Government's motion to dismiss in part, as to “Rodriguez's issues (1) and (2), as these issues [were] barred by the terms of the appeal waiver.” Id. at 4. The Fifth Circuit also affirmed in part this Court's Judgment “with respect to issue (3), as Rodriguez ha[d] abandoned the issue by failing to adequately brief it and the record indicates[d] that the issue [was] waived.” Id.

         On April 21, 2016, Rodriguez filed the present Motion [280] pursuant to 28 U.S.C. § 2255.[1] Rodriguez alleges that his trial counsel was ineffective. Mot. [280] at 4-12. Ground One of Rodriguez's Motion asserts that his

[a]ttorney failed to advise me properly by allowing me to attempt to go to trial. After reading the discovery my attorney should have known that going to trial would have been futile. My attorney should have negotiated a plea deal with the government saving time and money, and my sentence would not have been so harsh. I had no knowledge of the law everything I said and did was under the impression that my attorney was giving me correct advice, every time I was asked a question I answered according to how my attorney led me to believe, in the [sic] and after carrful [sic] reading my attorney was ineffective because he knew or should have known the success rate of the federal government in trial and convictions, and should have advised me to plea prior to a trial attempt on a negotiated sentence.

Id. at 4.

         In his Reply to the Government's Response, Rodriguez alleges that his counsel's purportedly erroneous advice “led him to proceed to trial which precluded [him] from receiving a 3 level reduction for acceptance of responsibility.” Reply [286] at 1. Rodriguez maintains that

if counsel would have done an effective job, options such as a plea bargain would have been attained, also the option of the fast track deportation program where a defendant receives a 4 level downward departure ...

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