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United States v. Moreno

March 8, 2007

UNITED STATES PLAINTIFF
v.
PHILLIP RAY MORENO DEFENDANT



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER

Presently before the Court is Defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, Defendant's Motion to Amend his Motion under 28 U.S.C. § 2255, the Government's Motion to file response out of time, and Defendant's Motion for Appointment of Counsel.

I. BACKGROUND

The bank robbery that Defendant was charged with committing occurred on January 7, 2003. According to Defendant's counsel, First Assistant Federal Public Defender for the Eastern and Western Districts of Arkansas Jerome Kearney, Defendant surrendered himself to authorities in California in March 2003, and cooperated with the FBI by giving incriminating statements as to this bank robbery. Defendant's counsel states in his affidavit submitted to the Court that he was assigned to represent Defendant on June 11, 2003, and that Defendant agreed to enter a guilty plea to the bank robbery charge after exploring various settlement options and sentencing considerations.

On October 16, 2003, Defendant entered a plea of guilty to Count 1, Armed Bank Robbery in violation of 18 U.S.C. § 2113(a) & (d). At the plea hearing, the Court read the indictment and asked Defendant, "How do you plead to the charge in the indictment?," to which he replied, "Guilty." The Court reviewed the rights that the Defendant was waiving by entry of a guilty plea, and Defendant stated that he understood those rights. Then, the Court proceeded to inform the Defendant of the twenty-five year statutory maximum and the sentencing guideline range under U.S.S.G. § 2B3.1. However, the Court also stated, "You understand we can't tell you, until we see the presentence report, precisely how this will work. But do you understand how it works?," and the Defendant responded, "Yes, sir, I do." Then, the Court had the Assistant United States Attorney state the facts of the case, and the Defendant stated that the statement was correct and true. Finally, the Court informed the Defendant that it usually takes approximately seven weeks for the presentence report to be prepared and that, after it has been prepared, he, the Defendant, and his attorney and the United States Attorney would have the opportunity to examine it. The Court stated that if there were any factual errors or mistakes in the presentence report that affect the sentencing, they must be brought to the Court's attention before sentence is imposed.

Defendant's counsel states in his affidavit that after the preparation of the presentence report, but prior to his sentencing, Defendant indicated a willingness to cooperate against a co-defendant in order to receive a downward departure of up to 50%. Defendant's counsel also states that Assistant United States Attorney Linda Lipe offered those terms, and Defendant appeared before a Grand Jury and offered testimony against his co-defendant in the bank robbery on January 6, 2004.

On January 22, 2004, at the sentencing hearing, the Court asked if there were any factual errors or mistakes in the presentence report, and Defendant's counsel replied that there were none. Then, the Court explained, in detail, the consequences of the enhancements because Defendant was deemed a career offender under U.S.S.G. § 4B1.1 based upon the presentence report, as (1) the defendant was at least eighteen years old at the time of the offense; (2) the offense of conviction was a crime of violence; and (3) the defendant had at least two prior felony convictions of crimes of violence. The presentence report states that on June 5, 1992, the Defendant pled guilty, at the age of 25, to Second-Degree Armed Robbery, and was sentenced to seven years' imprisonment.*fn1

The presentence report also states that on March 27, 1997, the Defendant pled guilty to Force/Assault with a Deadly Weapon (not firearm): Great Bodily Injury.*fn2

The Court stated that the final offense level was 31 and that a career offender's criminal history category is always a category VI. However, the Court also noted that due to the Defendant's extensive criminal history, he would have fifteen criminal history points, which would, in any event, result in a criminal history category of VI. The Court stated that, under the guidelines, this resulted in a sentencing range of 188 to 235 months' imprisonment. The Court reviewed the statements by Defendant's counsel in support of mitigation and the letters submitted to the Court on behalf of the Defendant and by the victims, the Defendant apologized to the Court, his mother, and the victims of his crime. He requested that the Court sentence him at the low end of the guideline range and that the Court recommend a "severe drug treatment program." On January 22, 2004, Defendant was sentenced to two-hundred (200) months' imprisonment, five (5) years' supervised release, $11,607 in restitution, and a $100 special assessment.

Although counsel for the Defendant states in his affidavit that he does not recall the specifics of his discussion with the Defendant regarding his right to appeal, "in keeping with [his] practice, [he] is certain that [he] discussed with him his right to appeal and also indicated to him that [he] saw no valid basis for an appeal given the facts and circumstances of the case." Defendant's counsel submitted a letter with his affidavit dated January 23, 2004, in which he states:

Enclosed with this letter you will find a copy of the Judgment which the Court entered in your case. You should very carefully review each provision set forth in the judgment, since you will be held strictly accountable for everything in it.

As we discussed after the sentencing hearing, an appeal is not indicated in your case; so none will be taken.

On November 26, 2004, Defendant filed his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The Government filed a Motion for Reduction of Sentence on January 12, 2005, and a supplement thereto on January 27, 2005. Pursuant to Federal Rule of Criminal Procedure 35, the Government requested a 50% reduction in the 200 months sentence imposed on Defendant. On January 31, 2005, after a full review of the record, the Court reduced Defendant's sentence from 200 months to 150 months based upon his substantial assistance to the United States Government. The Court also ordered the Government to respond on or before February 8, 2005, to the Defendant's § 2255 motion. The Government filed a Motion for Order permitting it to file response out of time on February 10, 2005, and submitted its response to Defendant's motion under 28 U.S.C. § 2255 that day. The Government's motion to file response out of time is granted.

On April 26, 2005, Defendant filed a Motion for Appointment of Counsel. The Court denies Defendant's Motion for Appointment of Counsel as moot. On September 22, 2005, Defendant filed a motion to amend his previous motion under 28 ...


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