Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Urbina-Sotres

United States District Court, D. Nebraska

September 1, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
REYNALDO URBINA-SOTRES, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on Defendant Reynaldo Urbina-Sortres's Motion to Vacate under 28 U.S.C. 2255[1] (“§ 2255 motion") (Filing No. 259). Also, before the Court is an ECF filing entitled, “Motion for Speedy Trial or Dismissal” (Filing No. 258).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         FACTUAL BACKGROUND

         The Defendant pled guilty to Counts I and II of an Information charging him with conspiracy to distribute 5 grams or more of methamphetamine and an amount of marijuana (Count I) and illegal re-entry by a person convicted of an aggravated felony (Count II). On January 6, 2015, Paul J. Forney filed an appearance as the Defendant's retained counsel, but, on May 18, 2015, withdrew his appearance due to a confilct. On May 22, 2015, Marti S. Sleister was court-appointed as counsel for the Defendant and remained as his counsel throughout the remainder of the proceedings.

         The Defendant entered into a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) for a term of incarceration of 70 months which included a waiver of the right of appeal and collateral attack (Filing No. 210 at 4, 5).

         In his Petition to Enter a Plea of Guilty, Dated: September 1, 2015, the Defendant stated under oath: He had enough time to talk with his attorney; he was satisfied with the job his attorney had done; he had no objections to the way his attorney had represented him; he knew he had a right to plead not guilty and proceed to trial with all accompanying constitutional rights; he was aware that the maximum statutory term of imprisonment for Count I was 40 years and for Count II was 20 years; and he understood all the questions in the Petition. (Filing No. 209. at 2, 6). On September 1, 2015, the Defendant's plea was accepted and he was found guilty of Counts I and II of the Information.

         A sentencing hearing was held on November 23, 2015. The Court accepted the Plea Agreement and the Defendant was sentenced to a term of 70 months on Count I and term of 70 months on Count II, to run concurrently, with four (4) years of supervised release on Count I and one (1) year of supervised release on Count II to follow, with those terms to run concurrently.

         On July 5, 2016, the Defendant filed his timely § 2255 motion (Filing No. 259).

         DISCUSSION § 2255 motion

         In his § 2255 motion, the Defendant alleges two grounds in support of his motion: (1) Fast Track Early Release Program, and (2) Ineffective Assistance of Counsel. Defendant asserts that his attorney did not care about the case and committed a plethora of errors affecting the Defendant's decision to enter the guilty plea. The Defendant also states that his attorney never advised him of his right of appeal.

         In order to establish ineffective assistance of counsel, the Defendant must satisfy both prongs of the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The performance prong requires a showing that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that counsel failed to function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 687-89. The prejudice prong requires a movant to demonstrate that seriously deficient performance of counsel prejudiced the defense. Id. at 687.

         Under the Defendant's plea agreement, he waived his right to seek post-conviction relief except for (a) “The right to timely challenge the defendant's conviction and the sentence of the Court should the Eighth Circuit Court of Appeals or the United States Supreme Court later find that charge to which the defendant is agreeing to plead guilty fails to state a crime.” or (b) “The right to seek post-conviction relief based on ineffective assistance of counsel.” (Filing No. 210 at 5.) The Defendant adopted the Presentence Investigation Report (Filing No. 231), in which the Defendant received the following reductions: a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.