United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Alamilla (Alamilla or defendant) has filed a § 2255
motion and an amended § 2255 motion. Because it plainly
appears from the submission of the defendant and the files
and records that he is plainly not entitled relief, I deny
the motion with prejudice. In so doing, I thank Michael
Gooch, appointed defense counsel, for accepting this Criminal
Justice Act appointment and for his good work on behalf of
had a criminal history category of V and he was a member of
the East Side Locos street gang when I originally sentenced
him for distribution of meth and a consecutive sentence for
possession of a firearm during a drug trafficking offense.
Within roughly two months after getting out of prison, he
violated his conditions of supervised release by driving
drunk and being a prohibited person in possession of a deadly
weapon (a knife).
state judge sentenced him to 3 to 5 years in prison for the
weapon and 60 days for driving under the influence. After he
admitted the conduct just described, I sentenced the
defendant to 60 months in prison and 60 months on supervised
release to run consecutive to the state sentence. Through his
excellent assistant federal public defender, Alamilla
appealed. That appeal was unsuccessful.
now claims that his assistant federal public defender
rendered ineffective assistance of counsel because the grade
of offense for the state charges that served as the predicate
for the supervised release violation was actually a
“B” rather than an “A” and the public
defender did not object to the probation officer's
allegedly erroneous calculation. The assistant federal public
defender, agreeing that he did not object, has withdrawn and
I have appointed new counsel.
parties assume that state charges (that the defendant was
ultimately convicted of committing) should have been graded a
“B” rather than an “A” for purposes
of a supervised released violation. I assume that as well.
They assume also that the Guideline range would have fallen
as a result and I assume that too. But as I made it clear at
the sentencing hearing, I thought it necessary to impose the
maximum prison sentence, a substantial period of supervised
release and run the sentences consecutive to the state
charges, because of the defendant's record, because of
the recency of his violation of supervised release after
getting out of prison and because all the relevant statutory
sentencing factors required such a sentence.
I tipped the parties off about my inclination before
sentencing. I stated the following immediately before hearing
from the lawyers and the defendant regarding the proper
THE COURT: Thank you. Are the parties prepared to proceed to
sentencing at this time?
MR. GILLAN: Yes, Your Honor.
MR. VANDERSLICE: Yes.
THE COURT: Before we do, I want to ask a question. I'm
going to ask this of the lawyers and not the probation
I want to know, given this young man's criminal history,
why I shouldn't sentence him to sixty months in prison,
consecutive to the state sentence, and then add on an
additional sixty months of supervised release.
I'll hear you now in allocution.
(Filing no. 133 at CM/ECF pp. 11- ...