United States District Court, N.D. Oklahoma
UNITED STATES OF AMERICA. Plaintiff,
JOSE BRUNO PIEDRA-AYVAR, Defendant.
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
the Court is the motion by defendant, Jose Bruno
Piedra-Ayvar, to vacate, set aside, or correct sentence,
filed under 28 U.S.C. § 2255 (Doc. 152), along with
supplements (Doc. 155, 157) he subsequently filed.
Defendant's conviction and sentence
defendant, Jose Bruno Piedra-Ayvar, was charged by
Superseding Indictment. (Doc. 58). He subsequently pleaded
guilty to Count One, possession of methamphetamine with
intent to distribute, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A)(viii), which subjected him to a
mandatory minimum of ten years to a maximum of life
imprisonment. As part of his plea agreement and plea
colloquy, he specifically acknowledged that he was facing a
mandatory minimum sentence of 10 years to a maximum of life
in prison, and he waived the right to collaterally attack the
conviction and sentence pursuant to 28 U.S.C. § 2255
except for claims of ineffective assistance of counsel. (Doc.
96 at 3).
on the very large volume of “ice” involved in the
offense, the presentence investigation report (PSR) assigned
a base offense level of 38. (PSR at 7). Because a search of
the apartment at which the defendant repackaged the
methamphetamine for sale yielded three firearms, two points
were added to the offense level for possession of a dangerous
weapon. The defendant also was assessed additional levels for
his aggravating role and recruitment of others based upon
affection. (Id.). He was also found to have been an
organizer, leader, manager, or supervisor in the criminal
activity, resulting in an additional two levels. His adjusted
offense level was thus 44. After a 3-point reduction for
acceptance of responsibility, his total offense level was
determined to be 41. (Id. at 8). Based on the total
offense level and a criminal history category of I, his
guideline imprisonment range was 324 to 405 months.
(Id. at 10). The defendant did not object to the
PSR. (See Doc. 149). The government made a motion
for downward departure under U.S.S.G. § 5K1.1 and
recommended a six-level departure to an offense level of 35,
with a sentencing range of 168-235 months. (Doc. 145). The
Court granted the motion for downward departure, and granted
in part the defendant's motion for variance (Doc. 139),
in which defendant requested that the Court grant a total
variance reducing his offense level and imposing a sentence
no longer than the mandatory minimum of 10 years. As a result
of the downward departure and variance, the Court sentenced
defendant to 121 months' imprisonment. (See Doc.
The § 2255 motion
defendant raises four grounds in his § 2255
motion. Defendant's first ground is that his
“attorney was poor and ineffective legal counsel”
because he “failed to file a motion [under] Rule
35(b)” and may have “deprived him of a favorable
downward adjustment or departure or failed to prevent an
improper upward adjustment in the defendant's sentence
under the sentencing guidelines, relevant statutes or
constitution” such that “the defendant's
sentence is violative of the Sixth Amendment.”
(Id. at 5-6). This ground is without merit, as it is
the government's decision as to whether to file
a motion under Fed. R. Crim. P. 35(b). Defendant's very
general statement that his counsel was ineffective such that
the defendant was deprived of a downward adjustment or an
improper upward adjustment is likewise without merit, because
the Court departed downward and also granted in part defense
counsel's request for a further downward variance.
(See Doc. 149, 150).
second ground (labeled “Ground Three”), the
defendant indicates that he “would like to do the
safety valve or Rule 35(b) or 35(c)” and his counsel
did not advise him of the “availability of sentence
reduction under [the] ‘safety valve.'” (Doc.
152 at 7). The Court has limited jurisdiction under 18 U.S.C.
§ 3582(c) to modify a sentence that has been imposed
“to the extent . . . permitted by statute or by Rule
35.” 18 U.S.C. § 3582(c). Such modifications under
Rule 35 may be made “[u]pon the government's
motion.” As the government has not moved under Rule 35,
the Court does not have jurisdiction to modify
defendant's sentence under Rule 35 at this time. See
United States v. Baker, 769 F.3d 1196, 1198 (10th Cir.
2014) (provisions of § 3582(c) and Fed. R. Crim. P. 35
assertion that his counsel was ineffective for allegedly
failing to advise him of the availability of a reduction of
sentence under the “safety valve” is also not
supported by the record. The “safety valve”
provision of the Guidelines permits a sentence below an
otherwise applicable statutory mandatory minimum sentence if
a defendant meets five criteria. U.S.S.G. § 5C1.2;
see United States v. Castaneda Ascencio, 260 F.
App'x 69, 70-72 (10th Cir. 2008) (unpublished). The
burden is on the defendant to demonstrate that he meets all
five criteria of the § 5C1.2 safety-valve provision.
United States v. Payton, 405 F.3d 1168, 1170 (10th
Cir. 2005). One of the criteria is that “the defendant
did not . . . possess a firearm or other dangerous weapon . .
. in connection with the offense.” U.S.S.G.§
5C1.2(a)(2). Another is that “the defendant was not an
organizer, leader, manager, or supervisor of others in the
offense, as determined under the sentencing guidelines and
was not engaged in a continuing criminal enterprise.”
U.S.S.G. § 5C1.2(a)(4). Defendant did not meet
these two of the five criteria of § 5C1.2(a). Thus,
defendant's argument that his counsel should have advised
him or taken action with respect to the safety valve is
unavailing, because the defendant was not eligible under the
safety valve. Specifically, the defendant possessed a
dangerous weapon, making him ineligible under §
5C1.2(a)(2), and he was determined to be an organizer,
leader, manager, or supervisor of others in the offense,
disqualifying him for safety valve relief under §
5C1.2(a)(4). (See PSR at 7, ¶¶ 19, 22).
defendant's change of plea hearing, he indicated that it
was “true and correct” that he had repackaged 20
pounds of methamphetamine at an apartment at 1818 East 71st
Street in Tulsa. (See Doc. 100 at 24-25). He further
signed a statement in the plea agreement that acknowledged
that he used the apartment to repackage the methamphetamine.
(Doc. 96 at 7). The apartment was subsequently searched with
consent, and DEA Task Force agents found additional
methamphetamine, packaging supplies, and a backpack
containing one firearm in the drawer beneath the oven, one
firearm and one digital scale in a kitchen drawer, and
another firearm located in a small safe in a utility closet.
(PSR at 6). “The mere propinquity of the weapons and
drugs suggests a connection between the two.”
Payton, 405 F.3d at 1171. Therefore, “a
firearm's proximity and potential to facilitate the
offense is enough to prevent application” of §
5C1.2(a)(2). Hallum, 103 F.3d at 89; see also
Castaneda Ascencio, 260 F. App'x at 70-72. Even had
he possessed no dangerous weapons in connection with the
offense, he would still have been ineligible for the safety
valve due to his role as an organizer, leader, manager, or
supervisor. (See PSR at 7). Accordingly, he is not
entitled to relief on this ground under § 2255.
respect to his third ground for relief (labeled “Ground
Four”), the defendant requests a “downward
variance” because his “lawyer failed to file a
USSG § 5K1.1 motion.” (Doc. 152 at 9). It is the
government, and not defense counsel, who may file a §
5K1.1 motion. See U.S.S.G. § 5K1.1. As noted,
the Court did depart downward, and also granted in
substantial part defense counsel's motion for variance.
(See Doc. 149). As part of his third ground, as well
in support of his fourth ground (labeled “Ground
Five”), the defendant also asserts that he “still
want[s] to cooperate with the government” and suggests
that he should obtain a reduction for cooperation. (Doc. 152
at 9, 16-17; see also Doc. 155, 157). The Court has
no authority to grant relief based upon such a
defendant's motion and the files and records of the case
conclusively show that the defendant is entitled to no relief
under 28 U.S.C. § 2255. Accordingly, the motion (Doc.
152), as supplemented (Doc. 155, 157) is
denied without hearing.