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United States v. Piedra-Ayvar

United States District Court, N.D. Oklahoma

December 13, 2017

UNITED STATES OF AMERICA. Plaintiff,
v.
JOSE BRUNO PIEDRA-AYVAR, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Defendant's conviction and sentence

         The 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).

         Based 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. 149, 150).

         II. The § 2255 motion

         The defendant raises four grounds in his § 2255 motion.[1] 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).

         In his 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 are jurisdictional).[2]

         Defendant's 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).

         During 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.

         With 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 “want.”

         The 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.

         SO ...


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