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United States v. Garcia-Hernandez

United States District Court, D. Nebraska

May 13, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JAVIER GARCIA-HERNANDEZ, Defendant.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

Javier Garcia-Hernandez (Garcia-Hernandez) has filed a motion under 28 U.S.C. ยง 2255. I have conducted an initial review of the motion.[1] It plainly appears from the motion, any attached exhibits, and the record of prior proceedings that he is not entitled to relief.

I. BACKGROUND

After a five-day jury trial, Garcia-Hernandez was sentenced to a mandatory term of life in prison. There is not the slightest doubt that he decided to roll the dice after knowing exactly what he was facing, after discussing the matter thoroughly with his lawyer, and after having engaged in plea negotiations with the government.

For example, consider the following exchange that took place immediately before trial:

THE COURT: On June 13, 2011, appearing in our court record is filing number 45, a Notice of Information Regarding Prior Convictions pursuant to 21 U.S.C. Sections 841(b)(1) and 851. It was filed by the government.
I'll now ask - the purpose of meeting outside the presence of the jury is to provide Mr. Javier Garcia-Hernandez with formal notice of that information and the consequences of that information.
So I will now ask Ms. Fullerton to advise the defendant what the notice of information charges and what the consequent penalties are.
MR. BERRY: Your Honor, I apologize for interrupting. Mr. Javier Garcia-Hernandez wanted me to talk to Ms. Fullerton just briefly. I think it will -
THE COURT: Go ahead.
MR. BERRY: - just take a couple seconds.
MS. FULLERTON: Can I have a moment, Your Honor?
THE COURT: Sure.
(An off-the-record discussion was had.)
MS. FULLERTON: Do you need a minute or two?
MR. BERRY: If I could just have a couple minutes.
MS. FULLERTON: Okay. Bill, why don't we go out in the hall.
THE COURT: Hold on just a minute. Did - Would you like a continuance for about five minutes or so?
MR. BERRY: Yes, Your Honor.
THE COURT: All right. We'll - but no - well, we'll - we've got this jury waiting, so you got five minutes. I'm coming back here in five minutes so everybody else get back here. We stand in recess.
(A short recess was had.)
THE COURT: Mr. Berry, are you prepared to proceed?
MR. BERRY: We are, Your Honor.
THE COURT: All right. All right. I'll call upon Ms. Fullerton now to tell Mr. Garcia-Hernandez what the notice of information charges and what the consequences of the information are should the defendant be found guilty and should the prior convictions be proven.
MS. FULLERTON: Mr. Garcia-Hernandez, the government has filed a Notice of Information Regarding Prior Convictions pursuant to 21, U.S. Code, Sections 841(b)(1) and Section 851. That information alleges that you were convicted on or about September 3rd, 1996, in the District Court for Woodbury County, Iowa, in a case entitled State of Iowa vs. Carlos Alcozer, criminal case number 46416, of the felony crime possession of cocaine with the intent to deliver, in violation of the laws of the State of Iowa.
Further, that you were convicted on or about July 23rd, 2003, in the Circuit Court of Minnehaha County, South Dakota, in a case entitled State of South Dakota vs. Alberto Perez, also known as Javier Garcia-Hernandez, case number 03-1323, of the felony crime of conspiracy to distribute more than one pound of marijuana, in violation of the laws of the State of South Dakota.
And that you were also convicted on or about January 5th, 2004, in the District Court of Cooke County, Texas, in a case entitled State of Texas vs. Juan Aranada Jr., also known as Juan Aranda, Jr., also known as Javier Garcia-Hernandez, case number 98-306, of the felony crime of possession of a controlled substance, namely, cocaine, in an amount of 400 grams or more, in violation of the laws of the State of Texas.
It's alleged that those previously described convictions were final when you committed the offense charged in the indictment previously filed in this case, and, accordingly, you are given notice that the increased statutory penalty for Count I of the indictment, which charges you with conspiracy to distribute and possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of the Title 21, United States Code, Section 846, is a mandatory term of life imprisonment without release and a maximum fine of $20 million.
Do you understand the information and the all - the alleged prior convictions?
THE DEFENDANT: Yes.
MS. FULLERTON: Do you understand the possible penalty if you are found guilty of the charge in the indictment and found guilty ...

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