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United States v. Canales-Mendoza

United States District Court, W.D. Arkansas, Harrison Division

January 8, 2018




         Before the Court is Petitioner's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 64) filed on October 10, 2017. The United States filed a response on December 19, 2017. (ECF No. 69). Petitioner has not filed a reply. The matter is ready for report and recommendation.

         I. Background

         On August 27, 2014, a Criminal Complaint was filed against Defendant/Petitioner, Fernando Canales-Mendoza (“Canales-Mendoza”), alleging that on or about April 30, 2014 and May 7, 2014, Canales-Mendoza distributed methamphetamine, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 1). Canales-Mendoza was arrested on August 27, 2014 (ECF No. 2), and he made his initial appearance on August 29, 2014 (ECF No. 4). Jose Manuel Alfaro (“Alfaro”), Assistant Federal Public Defender, was appointed to represent Canales-Mendoza. (ECF No's. 4, 6).

         On September 23, 2014, Canales-Mendoza was named in a four-count Indictment charging him with distribution of more than five grams of methamphetamine (Counts One and Two), possession of more than 50 grams of methamphetamine with the intent to distribute (Count Three), and conspiracy to distribute methamphetamine (Count Four). (ECF No. 8). Canales-Mendoza appeared for arraignment with his appointed counsel on October 8, 2014, and he entered a not guilty plea to each count of the Indictment. (ECF No. 13).

         A jury trial was held on February 3-4, 2015, before the Hon. Robert T. Dawson, U.S. District Judge. (ECF No's. 25, 26). On February 4, 2015, the jury returned verdicts finding Canales-Mendoza guilty of all four counts as charged in the Indictment. (ECF No's. 27, 28).

         An initial PSR was prepared by the United States Probation Office on March 19, 2015. (ECF No. 33). On April 2, 2015, counsel for Canales-Mendoza advised that he had three objections to the initial PSR: (1) he objected to the inclusion of certain alias name, birthday and ID number information; (2) he objected to Paragraphs 13 through 34 and “denie[d] any wrong doing contained therein”; and, (3) he objected to Paragraph 66 and stated, for identification purposes, that he has black hair. (ECF No. 34). On April 3, 2015, the Government advised that it had no objections to the initial PSR, but it requested that additional information be added in the offense conduct section. (ECF No. 35). The information noted in the Government's request was included in Paragraph 32(a) of the final PSR. (ECF No. 36-1, p. 1). The Probation Officer noted that the alias name, date of birth, and ID number “may have been typographical errors entered by someone after one of the defendant's previous arrests; however, they are associated with his criminal record in the Access to Law Enforcement System (ATLAS) and are included in the presentence report.” No amendment was made to the PSR in response to Canales-Mendoza's first objection. (Id.). Regarding Canales-Mendoza's second objection to the PSR, the Probation Officer reported, “[t]he defendant was found guilty of this conduct at trial, ” and the PSR was not changed. (ECF No. 36-1, p. 2). In response to Canales-Mendoza's third objection to the PSR, Paragraph 66 was amended to reflect that the Defendant has black hair. (Id.).

         A final PSR was submitted to the Court on April 7, 2015. (ECF No. 36). For purposes of guideline calculation, Canales-Mendoza was determined to be accountable for 196.1 grams of actual methamphetamine. (ECF No. 36, ¶ 34). Pursuant to U.S.S.G. § 3D1.2(b), the four counts of conviction were grouped into a single group. (ECF No. 36, ¶ 39). Based on the drug quantity attributed to Canales-Mendoza, his Base Offense Level was determined to be 32. (ECF No. 36, ¶ 40). No specific offense characteristics, victim related, role in the offense, or obstruction of justice adjustments were made. (ECF No. 36, ¶¶ 41-44). No Chapter Four enhancement applied. (ECF No. 36, ¶ 46). No reduction for acceptance of responsibility was made. (ECF No. 36, ¶ 47). Canales-Mendoza's Total Offense Level was determined to be 32. (ECF No. 36, ¶ 48). Canales-Mendoza had a criminal history score of zero, placing him in Criminal History Category I. (ECF No. 36, ¶ 54). The statutory minimum term of imprisonment for counts one and two is five years and the maximum term is 40 years; for count three, the statutory minimum term of imprisonment is ten years and the maximum term is life; and, for count four, there is no statutory minimum and the maximum term is 20 years. (ECF No. 36, ¶ 79). Based upon a Total Offense Level of 32 and a Criminal History Category of I, Canales-Mendoza's advisory Guidelines range was determined to be 121 to 151 months imprisonment. (ECF No. 36, ¶ 80).

         Canales-Mendoza appeared with his counsel for sentencing on April 17, 2015. (ECF No. 39). The Court made inquiry and determined that Canales-Mendoza was able to comprehend the proceedings; that he was satisfied with his counsel; that he had the opportunity to read and discuss the pre-sentence investigation report; counsel for both the United States and Canales-Mendoza were afforded the opportunity to make a statement to the Court; and, Canales-Mendoza was afforded the opportunity to make a statement and present information in mitigation of sentence. (Id.). The Court imposed a sentence of 120 months imprisonment on each count, to run concurrently; four years supervised release on Counts One and Two, five years supervised release on Count Three, and three years supervised release on Court Four, all to run concurrently; no fine; and, a total of $400.00 in special assessments. (ECF No. 39, p. 2). Canales-Mendoza was advised of his appeal rights. (Id.). Judgment was entered by the Court on April 17, 2015. (ECF No. 40).

         Canales-Mendoza filed a direct appeal to the Eighth Circuit Court of Appeals. (ECF No. 42). In a brief filed under Anders v. California, 386 U.S. 738 (1967), his counsel challenged the sufficiency of the evidence to support the convictions and the substantive reasonableness of the sentence. (ECF No. 53-1, p. 2). In a pro se supplemental brief, Canales-Mendoza argued that he was eligible for safety-valve relief. (Id.). In an Opinion filed on March 30, 2016, the Eighth Circuit found that the evidence establishing three undercover buys of methamphetamine, with resale quantities involved, supported the convictions; and, as to the sentencing issues, that Canales-Mendoza failed to meet his burden of proof that he qualified for safety-valve relief, and his reasonableness challenge to his statutory minimum sentence failed. (Id.). The Eighth Circuit's Mandate was issued on April 21, 2016. (ECF No. 53).

         On April 3, 2017, Canales-Mendoza filed a pro se petition pursuant to 28 U.S.C. § 2255. (ECF No. 54). The petition was docketed as one filed under 28 U.S.C. § 2255, but it was not a standard form § 2255 petition, and it was entirely in the Spanish language. By Order entered on April 5, 2017 (ECF No. 56), the Clerk was directed to forward to Canales-Mendoza a blank § 2255 form (AO 243). The Clerk did so on April 5, 2017. Canales-Mendoza was ordered to complete the § 2255 form (AO 243), in the English language, and file it with the Clerk within 30 days. Canales-Mendoza was informed that his failure to do so may result in the dismissal of this action. (ECF No. 56). Canales-Mendoza failed to file a § 2255 form (AO 243) in the English language as directed, nor did he respond in any way to the Court's Order.

         Due to Canales-Mendoza's failure to file a standard form § 2255 petition in the English language as ordered, the undersigned filed a Report and Recommendation on June 23, 2017 recommending dismissal of Canales-Mendoza's § 2255 Petition. (ECF No. 57). No timely objections were received, and the Court entered an Order adopting the Report and Recommendation on July 13, 2017. (ECF No. 58). A Judgment of dismissal with prejudice was also entered on July 13, 2017. (ECF No. 59).

         On August 18, 2017, Canales-Mendoza filed a Petition to Recall and for Extension of Time. (ECF No. 61). In it, Canales-Mendoza alleged that he was unable to obtain a translator to help him re-file an English version of his § 2255 petition, but that he had now found someone to help him. He asked for an extension of 45 days to do so. (Id.). By Text Only Order entered on August 25, 2017, the Court permitted Canales-Mendoza to file an English-language § 2255 motion to vacate by October 10, 2017, advising that if such motion was filed the Court would then address whether reconsideration of its prior Order (ECF No. 58) was warranted.

         On October 10, 2017, Canales-Mendoza filed a Motion for Leave to Supplement 28 U.S.C. § 2255 Motion Pursuant to 28 U.S.C. § 2242 (ECF No. 63) along with his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 64) on the approved standard form and in the English language. On October 31, 2017, the Court entered an Order (ECF No. 65) granting Canales-Mondoza's Motion for Leave to Supplement 28 U.S.C. § 2255 Motion (ECF No. 63), and the Court vacated its Order (ECF No. 58) and Judgment (ECF No. 59) dismissing Canales-Mendoza's motion to vacate.

         Canales-Mendoza raises four grounds for relief in his amended § 2255 Motion:

(1) Ineffective assistance of counsel for failure to “present facts that would have reduced my mandatory minimum sentence from 10 years to 5 years, specifically the amount of drugs in the third count....” (ECF No. 64, p. 4).
(2) Only a buyer and seller relationship existed not rising to a conspiracy. Canales-Mendoza argues that counts one and two deal with the sale of drugs, and “[s]imple sales of drugs do not meet the essential elements of a conspiracy in that there is no mutual agreement to further the conspiracy.” Canales-Mendoza also argues that ...

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