United States District Court, E.D. Virginia, Richmond Division
JAMES R. SPENCER, Senior District Judge.
THIS MATTER is before the Court on pro se Petitioner Javier Cruz Garcia's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") (ECF No. 29). For the reasons set forth below, the § 2255 Motion is DISMISSED.
a. Factual Background
According to the Statement of Facts (ECF No. 16), on or about February 23, 2007, Petitioner Javier Cruz Garcia ("Garcia" or "Petitioner") did knowingly, intentionally, and unlawfully attempt to possess with the intent to distribute five hundred grams or more of a mixture and substance containing a detectable amount of cocaine hydrochloride, and did possess a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one year, and being an alien who is illegally and unlawfully in the United States.
Specifically, in February 2007, a package containing 558.5 grams of cocaine hydrochloride was sent via DHL from Mexico to Petitioner's residence in Richmond, Virginia. The package was intercepted in Ohio by United States Customs and Border Protection ("CBP") agents, and an x-ray of the package showed that it contained a sculpture which appeared to be filled with powder. Based upon its origin, as well as its appearance, CBP agents had probable cause to believe that the package contained cocaine hydrochloride. The package was opened and cocaine hydrochloride was found inside the sculpture.
The sculpture was placed inside a box and it was determined that it would be delivered to Petitioner's residence. On February 23, 2007, an anticipatory search warrant was obtained. The package was equipped with a break-wire, which would activate a beacon signal when opened.
A U.S. Immigration and Customs Enforcement ("ICE") Agent posed as a DHL driver and brought the package to Petitioner's residence. Petitioner answered the door, and accepted the package. Moments later, the break-wire beacon activated, indicating to ICE agents and other law enforcement officers that the package had been opened.
The ICE Agent, still posing as a DHL deliver person, returned to Petitioner's apartment and asked Petitioner to sign for the package. As he was about to sign, Petitioner was placed under arrest, and the search warrant was executed. Upon entering the residence, agents found the opened package, with the sculpture removed. In addition, they recovered an additional 478.8 grams of cocaine hydrochloride, packaging materials, digital scales and a firearm. Petitioner was also in possession of $5, 894.00.
b. Procedural Background
On February 26, 2007, Petitioner was charged via Criminal Complaint with attempt to possess with the intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a). On March 19, 2007, a federal grand jury in the Eastern District of Virginia returned a four-count Indictment against Petitioner alleging: (1) attempt to possess with the intent to distribute 500 grams or more of cocaine hydrochloride, in violation of 21 U.S.C. § 846 (Count one); (2) possession with the intent to distribute a detectable amount of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) (Count two); (3) possession of a firearm by a convicted felon and illegal alien, in violation of 18 U.S.C. §§ 922(g)(1) and (5)(A) (Count three); and (4) fraud in connection with identity documents, in violation of 18 U.S.C. § 1028(a)(6) (Count four).
On July 16, 2007, Petitioner pleaded guilty to Counts One and Three of the Indictment. (ECF No. 15.) On October 16, 2007, this Court sentenced Petitioner to 240 months' imprisonment and four years of supervised release on Count One, and 120 months' imprisonment, to run concurrent to Count One, and three years of supervised release on Count Three, to run concurrent to Count One. Counts Two and Four were dismissed on motion of the Government. Petitioner was represented by Charles Lewis ("Lewis"). Petitioner did not appeal his sentence.
Petitioner filed the present § 2255 Motion on March 12, 2013. In his § 2255 Motion, Petitioner alleges one ground for relief:
Ground One: The Court incorrectly calculated Petitioner's Criminal History Category by Including a Prior Conviction ...