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United States v. Rios-Sanchez

United States District Court, D. Nebraska

November 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE RIOS-SANCHEZ, Defendant.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         Jose Rios-Sanchez (Defendant) has filed a timely § 2255 motion alleging ineffective assistance of trial counsel and direct appeal counsel. After initial review, I deny the motion and dismiss it with prejudice.[1]

         Background

          The Defendant admitted when he entered his guilty plea in 2001 that he agreed to transport drugs from Washington to Arkansas in exchange for $1, 500.00. The Nebraska State Patrol officers stopped the Defendant for expired license plates. While conducting a search, the officers discovered seven pounds of methamphetamine in a cooler inside the vehicle and 1.3 grams of methamphetamine in Defendant's sock. He pled guilty to possession with intent to deliver 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1) thus triggering a statutory mandatory minimum sentence of ten years unless he was eligible for the safety-valve.

         The Defendant failed to appear at his sentencing hearing scheduled for January 23, 2002. He evaded capture for over fourteen years before he was finally located living in Wyoming. Substantially varying downward[2] due to Defendant's poor health, I sentenced Rios-Sanchez to a statutory minimum term of 120 months' imprisonment. I also found that he was not eligible for the safety-valve or a minor role adjustment.

         The Defendant appealed alleging that I erred in failing to provide the Defendant with a safety-valve adjustment. The Court of Appeals disagreed and affirmed. United States v. Rios -Sanchez, 731 Fed.Appx. 558, 560 (8th Cir. 2018). The Court of Appeals held that I erred in finding the Defendant was categorically ineligible for consideration under the safety-valve because he did not provide any information to the government before the first sentencing hearing in 2002, but that the error was harmless. The Court of Appeals ruled that the Defendant's written safety-valve statement and his testimony at the second sentencing hearing in 2017 demonstrated that he did not truthfully proffer all information about his involvement in the offense and, therefore, did not satisfy his burden of showing he was entitled to relief.

         Law on Ineffective Assistance of Counsel

         The Defendant asserts that defense counsel was ineffective. Therefore, the Strickland standard must be applied. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (announcing principles for evaluation of claims of ineffective assistance of counsel under the Sixth Amendment). In order to prevail on a claim that defense counsel rendered ineffective assistance of counsel under Strickland, the claimant must establish two things. He or she must establish (1) that “‘counsel's representation fell below an objective standard of reasonableness, '”[3] and (2) that “‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'”[4] Nguyen v. United States, 114 F.3d 699, 703-04 (8th Cir. 1997) (quoting Strickland, 466 U.S. at 688, 694.)

         An evidentiary hearing is unnecessary if the claimant makes an insufficient preliminary showing on either or both prongs or the record clearly contradicts the claimant's showing on either or both prongs. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995) (affirming denial of § 2255 motion without a hearing in the face of an ineffective assistance of counsel claim; stating that no evidentiary hearing is required where “(1) the petitioner's allegations, accepted as true, would not entitle the petitioner 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.”).

         Claims

         The Defendant first argues that his counsel[5] was ineffective because the lawyer failed to file a motion to suppress the fruits of the search of the vehicle inasmuch as the Defendant did not consent to the search. Both predicates of this argument are factually untrue.

         A motion to suppress was filed but the Defendant after consulting his counsel agreed that it should be withdrawn. At the time of his plea, the Defendant told the Magistrate Judge that he agreed that the suppression motion should not be pursued after discussing the matter with his counsel:

THE COURT: Mr. Potter, have you discussed with the Defendant any possible defenses that he may have to the charge?
MR. POTTER: I have, Your Honor.
THE COURT: Mr. Rios-Sanchez, is that correct?
MR. RIOS-SANCHEZ: (By the Interpreter) Yes.
MR. POTTER: Your Honor, for the Court, I had filed a motion to suppress, and we did withdraw that motion to suppress when ...

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