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United States v. Alamilla

United States District Court, D. Nebraska

August 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICARDO ALAMILLA, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Ricardo 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 his client.

         Alamilla 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).

         The 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.

         Alamilla 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 The assistant federal public defender, agreeing that he did not object, has withdrawn and I have appointed new counsel.

         The 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.

         Indeed, 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 sentence:

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 officer.
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- ...


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