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United States v. Munoz-Ramon

United States District Court, D. Nebraska

November 4, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JORGE MUNOZ-RAMON, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge.

         This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 414) filed by the defendant, Jorge Munoz-Ramon. The motion was timely filed less than 1 year after the defendant's conviction became final. See § 2255(f). The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:

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.

         A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.

         BACKGROUND

         The defendant was charged with one count of conspiring to distribute 500 grams or more of a mixture containing methamphetamine, in violation of § 21 U.S.C. § 841(a)(1). Filing 141 at 1. Through counsel, he filed a pretrial motion to suppress uncounseled statements he made to law enforcement, contending that he had not been read his Miranda rights. Filing 204. The Magistrate Judge found that the defendant had been read a Miranda advisory, and recommended that the motion to suppress be denied. Filing 213. The defendant objected to the Magistrate Judge's findings and recommendation, filing 229, but after a de novo review, the Court adopted the findings and recommendation and denied the motion to suppress, filing 239.

         The case proceeded to a jury trial. See, filing 379; filing 380; filing 381. The jury found the defendant guilty of conspiring to distribute or possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine. Filing 324 at 2. A presentence report was prepared finding that the defendant's base offense level was 38, based in part on 5 pounds of methamphetamine found at an apartment near 25th and G Streets in Omaha. Filing 364 at 6-7. The presentence report also found that the defendant was not entitled to a downward departure for acceptance of responsibility. Filing 364 at 9. The presentence report concluded that with a total offense level of 38, and a criminal history category of I, the sentencing guideline range was 235 to 293 months. Filing 364 at 14.

         The defendant objected to the presentence report arguing, among other things, that he should not be held accountable for the drugs seized at the apartment, and that he should receive credit for acceptance of responsibility. Filing 350. The defendant also moved for a downward variance. Filing 351. The Court tentatively found that the presentence report was accurate. Filing 355 at 3-4. The defendant objected to that tentative finding. Filing 358. But the Court found that the drugs found at the apartment were at least foreseeable to the defendant. Filing 382 at 7-8. And, the Court found, this was not the "rare situation" where a defendant could receive credit for acceptance of responsibility despite going to trial. Filing 382 at 12-13. The Court overruled the defendant's objections and adopted the presentence report, filing 368 at 1, and overruled his motion for a downward variance, filing 382 at 25. But the Court varied downward pursuant to the Department of Justice's policy during the interim period before Amendment 782 to the United States Sentencing Guidelines became effective, see filing 368 at 3, and imposed an adjusted "guideline" sentence of 188 months' imprisonment, filing 367 at 2.

         The defendant appealed. Filing 369. On appeal, he asserted that the Court had erred in denying his motion to suppress, admitting evidence that contained Spanish-language writing, attributing to him the drugs found in the apartment, denying him an adjustment for acceptance of responsibility, and denying a downward variance. Brief for Appellant, United States v. Munoz-Ramon, 614 F.App'x 857 (8th Cir.), cert. denied, 136 S.Ct. 700 (2015) (No. 14-3489), 2014 WL 7503771. But the Eighth Circuit affirmed the defendant's conviction and sentence. Munoz-Ramon, 614 F.App'x 857. The defendant moved for rehearing, which was denied. See filing 407. The defendant petitioned for a writ of certiorari, which was also denied. See, filing 410; filing 411; see also Munoz-Ramon, 136 S.Ct. 700.

         DISCUSSION

         The defendant's motion for postconviction relief asserts six assignments of error allegedly occurring at trial:

• Ineffective assistance of counsel,
• Denial of his motion to suppress evidence,
• Admission at trial of evidence containing Spanish-language writing,
• Holding him responsible for drug weight found at the 25th ...

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