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United States v. Picazo

United States District Court, W.D. Arkansas, Fort Smith Division

February 10, 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
ARMANDO PICAZO DEFENDANT/PETITIONER

          MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Defendant/Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed on October 26, 2016. (Doc. 339) The United States filed its response on November 21, 2016. (Doc. 346) Defendant/Petitioner did not file a reply. Also before the Court is Defendant/Petitioner’s Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2) filed on January 9, 2017. (Doc. 347) The United States was not ordered to file a response to that motion. These matters are ready for report and recommendation.

         I. Background

         On September 16, 2015, the Defendant/Petitioner, Armando Picazo (“Picazo”), was named in an Indictment charging him with conspiracy to distribute methamphetamine (Count One), and aiding and abetting in the possession of 50 grams or more of actual methamphetamine with the intent to distribute (Count Seven). (Doc. 17) Picazo was arrested on September 23, 2015, and he appeared for arraignment before the Hon. Mark E. Ford, United States Magistrate Judge, on September 25, 2015, at which time he entered a not guilty plea to the Indictment. (Doc. 60) Jess Marvin Honeycutt (“Honeycutt”), a CJA Panel attorney, was appointed to represent Picazo. (Docs. 60, 105)

         On January 19, 2016, Picazo appeared with counsel before the Hon. P. K. Holmes, III, Chief United States District Judge, for a change of plea hearing. (Doc. 156) A written Plea Agreement (Doc. 157) was presented to the Court, and Picazo pleaded guilty to Count Seven of the Indictment charging him with aiding and abetting in the possession of 50 grams or more of actual methamphetamine with the intent to distribute.[1] (Doc. 156) The Court tentatively approved the Plea Agreement and ordered a Presentence Investigation Report (“PSR”). (Doc. 156)

         An initial PSR was prepared by the United States Probation Office on March 31, 2016. (Doc. 180) On April 13, 2016, Picazo advised that he had no objections to the PSR. (Doc. 206) On April 18, 2016, the Government advised that it had no objections to the PSR. (Doc. 219)

         On May 3, 2016, a final PSR was submitted to the Court. (Doc. 237) The final PSR determined that Picazo was accountable for 4,976.13 grams of actual methamphetamine and 2,285.87 grams of a mixture of methamphetamine, which converts under the Guidelines to a total of 104,094.34 kilograms of marijuana equivalent. (Doc. 236, ¶¶ 48-51) Based on that drug quantity, Picazo’s base offense level was determined to be 38. (Doc. 236, ¶ 57) A two-level enhancement was assessed for specific offense characteristics – possession of a dangerous weapon (firearm). (Doc. 236, ¶¶ 44, 51, 58) Another two-level enhancement was assessed for Picazo’s aggravating role in the offense as an organizer, leader, manager, or supervisor in the criminal activity. (Doc. 236, ¶¶ 51, 60) After a three-level reduction for acceptance of responsibility, Picazo’s total offense level was determined to be 39. (Doc. 236, ¶¶ 64-66). Picazo had a criminal history score of zero, placing him in criminal history category I. (Doc. 236, ¶ 76) The statutory minimum term of imprisonment for the offense of conviction is 10 years and the maximum term of imprisonment is life. (Doc. 236, ¶ 105) Based upon a total offense level of 39 and a criminal history category of I, Picazo’s advisory Guidelines range was determined to be 262 to 327 months imprisonment. (Doc. 236, ¶ 106)

         Picazo appeared for sentencing on June 22, 2016. (Doc. 292) The Court made inquiry that Picazo was satisfied with his counsel; the PSR was reviewed and adopted; final approval of the Plea Agreement was expressed; Picazo and his counsel were afforded the opportunity to speak and make a statement; and, the Court then imposed a below-Guidelines sentence of 240 months imprisonment, five years supervised release, no fine, and a $100.00 special assessment.[2] (Doc. 292) Judgment was entered by the Court on June 22, 2016. (Doc. 293)

         Picazo did not pursue a direct appeal from the Judgment.

         On October 24, 2016, Picazo filed his pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “motion”). (Doc. 339) The motion argues: (1) ineffective assistance of counsel for not challenging the two-level enhancement for possession of a firearm; (2) ineffective assistance of counsel for not challenging the two-level enhancement for being an organizer, leader, manager, or supervisor in the criminal activity; and, (3) that Picazo is entitled to relief pursuant to Amendment 794 to U.S.S.G. § 3B1.2.[3] (Doc. 339, pp. 4-8) The United States’ response to the motion was filed on November 21, 2016. (Doc. 346) Picazo did not file a reply.

         On January 9, 2017, Picazo filed a Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2), in which he re-states his argument that he is entitled to relief pursuant to Amendment 794 to U.S.S.G. § 3B1.2. (Doc. 347)

         II. Discussion

         “A prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). A thorough review of Picazo’s § 2255 motion and the files and records of this case conclusively shows that Picazo is not entitled to relief, and the undersigned recommends the denial and dismissal of his § 2255 motion with prejudice without an evidentiary hearing. The undersigned also recommends the denial and dismissal of Picazo’s motion for sentence reduction.

         A. Timeliness

         A one year period of limitation applies to motions under 28 U.S.C. § 2255. This period runs from the latest of: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or, (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).

         An un-appealed criminal judgment becomes final when the time for filing a direct appeal expires. Anjulo-Lopez v. United States, 541 F.3d 814, 816 n. 2 (8th Cir. 2008). The Judgment in this case was entered on June 22, 2016. (Doc. 45) Had Picazo wished to file an appeal, he was required to do so within 14 days. See Fed. R. App. P. 4(b)(1)(A)(i). Picazo did not file an appeal, and his conviction thus became final on July 6, 2016. See Murray v. United States, 313 Fed. App’x 924 (8th Cir. 2009). From that date, Picazo had one year, or until July 6, 2017, to timely file his § 2255 habeas petition. Picazo filed his § 2255 motion on October 24, 2016, well within the one year limitations period.

         B. Ineffective Assistance of Counsel Claims

         To prove a claim of ineffective assistance of counsel, Picazo must demonstrate both that counsel’s performance was deficient and that counsel’s deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish the deficient performance prong of the Strickland test, one must show that counsel’s representation fell below the “range of competence demanded of attorneys in criminal cases.” Id. at 688. Review of counsel’s performance is deferential, and there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 689. To establish the prejudice prong of the Strickland test, one must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

         1. Failure to Challenge Possession of Firearm Enhancement

         Picazo argues in Ground One of his § 2255 Motion that his counsel was ineffective for not challenging the two-level enhancement for possession of a firearm in connection with the commission of the offense. (Doc. 339, p. 4) For the supporting facts, Picazo merely alleges that “there were no ‘substantial’ or ‘specific’ findings that [he] possessed a firearm;” that it was his wife and co-defendant, Maria D. Jesus Martinez, who possessed the firearm; and, that “counsel prejudiced in his enhancement 2-two-point sentence.” (Doc. 339, p. 4) The argument is conclusory, contrary to the record, and lacks merit.

         Vague and conclusory allegations are not sufficient to state a ground for relief under 28 U.S.C. § 2255. Hollis v. United States, 796 F.2d 1043, 1046 (8th Cir. 1986). See also Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977) (solemn declarations in open court carry a strong presumption of verity; subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal); Smith v. United States, 677 F.2d 39, 41 (8th Cir. 1982) (conclusory allegations, unsupported by any specifics, are subject to summary dismissal); Bryson v. United States, 268 F.3d 560, 562 (8th Cir. 2001) (brief, conclusory allegations that failed to cite to the record insufficient to support claims of ineffective assistance of counsel). Even pro se litigants must state specific facts in support of their claims regarding counsel’s allegedly deficient performance. See Saunders v. United States, 236 F.3d 950, 952-53 (8th Cir. 2001). Picazo does ...


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