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Hernandez v. United States

United States District Court, E.D. Virginia, Alexandria Division

September 5, 2017

JESSICA HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil No. 1:16-cv-1243

          MEMORANDUM OPINION

          CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Petitioner Jessica Hernandez's ("Petitioner") Motions to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.

         Petitioner participated in a drug conspiracy that involved the distribution of large quantities of cocaine in Virginia and elsewhere. Between July 2014 and June 2015, Petitioner assisted her husband, the conspiracy leader, in the packaging and selling of cocaine. Petitioner purchased cutting agents, which increased the amount of cocaine available for distribution. She also met customers and exchanged cocaine for money. One on occasion, Petitioner accompanied her husband on a trip to Colorado to purchase one kilogram of cocaine, and successfully hid that cocaine in her shirt during an encounter with law enforcement. Petitioner also had access to a safe in the home she and her husband shared that contained a firearm, drugs, and drug proceeds. A search warrant executed on the couple's two homes revealed the following: weapons; ammunition; $26, 000 in cash; 215 grams of cocaine; multiple cellular phones; and a hydraulic press used for creating kilogram bricks of cocaine.

         On June 24, 2015, Petitioner was arrested for conspiracy to distribute cocaine. That same day, Petitioner appeared before a judge and was appointed counsel. On July 13, 2015, Petitioner filed a motion requesting that attorney Abu Kalokoh ("Attorney Kalokoh" or "former counsel") be substituted as counsel. That motion was granted, and Attorney Kalokoh was substituted as counsel of record.

         On August 19, 2015, Petitioner pleaded guilty, pursuant to a written plea agreement, to a one-count criminal information charging her with conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. In exchange, the government agreed to recommend a downward sentencing adjustment for acceptance of responsibility. As part of the signed plea agreement, Petitioner affirmed, among other things, that she read and reviewed the plea agreement in its entirety with her attorney, that she was satisfied with her attorney's work, and that she was waiving her right to appeal.

         At the plea hearing held the same day, the judge conducted a full Rule 11 plea colloquy. During the plea colloquy, and while under oath, Petitioner, among other things, indicated that she was satisfied with Attorney Kalokoh's representation, that she was pleading guilty by her own volition, and that she reviewed the plea agreement with Attorney Kalokoh. The judge then continued proceedings for sentencing to November 13, 2015.

         Meanwhile, on October 9, 2015, the probation office submitted the PSR. In the PSR, Petitioner received no adjustment for having a minor role in the criminal activity and received no relief from the mandatory minimum sentence of 120 months of imprisonment under the safety valve provision due to her possession of a firearm in connection with the offense and her lack of candor with the government. Petitioner, however, did receive a downward adjustment for her acceptance of responsibility. The PSR's calculated guidelines range was the statutory mandatory minimum sentence of 120 months of imprisonment.

         On November 6, 2016, the government filed its position on sentencing and recommended that the mandatory minimum sentence be imposed. On November 11, 2015, Attorney Kalokoh submitted two objections to the PSR: the first disputing that Petitioner "possessed" a firearm and the second disputing that Petitioner was less than forthcoming with information. Attorney Kalokoh also filed a position on sentencing, arguing that Petitioner should receive relief from the mandatory minimum sentence on account of the safety valve provision. In support thereof, Attorney Kalokoh submitted several letters, a social worker's report, and several certificates attesting to Petitioner's educational pursuits, sobriety, good nature, and faith.

         On November 13, 2015, Petitioner appeared before this Court for sentencing. At the hearing, Attorney Kalokoh again raised his objections to the PSR and reiterated his position as to Petitioner's eligibility for the safety valve provision. The Court considered but ultimately rejected Attorney Kalokoh's argument and sentenced Petitioner to the statutory mandatory minimum sentence of 120 months of imprisonment. Judgment was entered on November 24, 2015.

         On September 30, 2016, Petitioner filed a pro se § 2255 motion, arguing that she was entitled to the retroactive application of Amendment 794 to the United States Sentencing Guidelines ("USSG"). On November 15, 2016, Petitioner filed another pro se § 2255 motion, arguing that she received ineffective assistance of counsel. On December 6, 2016, Petitioner filed a memorandum of law in support of her claims of ineffective assistance of counsel. On December 20, 2016, Petitioner filed a corrected memorandum of law in support of her claims of ineffective assistance.

         A prisoner in federal custody may move to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. To prevail under § 2255, a petitioner has the burden of proving by a preponderance of the evidence that her sentence was imposed in violation of the Constitution or laws of the United States, that the Court lacked jurisdiction to impose the sentence, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a), (f); see also Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). In deciding a § 2255 motion, the Court may summarily dismiss the motion without holding an evidentiary hearing when motion and records conclusively show that the petitioner is not entitled to relief. United States v. Magini, 973 F.2d 261, 264 (4th Cir. 1992).

         In her first § 2255 motion, Petitioner asserts that she is entitled to the retroactive application of Amendment 794 to the USSG. She contends that under the Amendment, her base offense level as calculated under the USSG should be reduced because she was a minor participant in the drug conspiracy. This claim fails. Amendment 794, which went into effect on November 1, 2015, amended the commentary to USSG § 3B1.2, dealing with a defendant's role in the offense. See USSG App. C, Amend. 794, at 116 (Supp. Nov. 1, 2015) . Amendment 7 94 introduced a list of non-exhaustive factors for a sentencing court to consider when determining whether or not to apply a mitigating role adjustment. United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016). The Amendment was intended to clarify § 3B1.2, but it was not a substantive change. Id.

         Here, Petitioner cannot claim retroactive application of Amendment 794. As noted above, Amendment 794 went into effect on November 1, 2015, approximately two weeks prior to Petitioner's sentencing on November 13, 2015. Thus, on the date of Petitioner's sentencing, Amendment 794 was in effect and any benefit she may have derived from it was available to her. See Dorsey v. United States, 132 S.Ct. 2321, 2332 (2012) (requiring a sentencing judge to use the version of "the Guidelines Manual in effect on the date that the defendant is sentenced") (quoting USSG § 1B1.11) . Because Amendment 7 94 was in effect at the time of sentencing, Petitioner fails to state a claim for § 2255 relief on this basis. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970) (stating "[w]here the files and records conclusively show that the prisoner is entitled to no relief, summary dismissal is appropriate") .

         Assuming arguendo Petitioner's § 2255 motion includes the argument that the sentencing court did not properly apply Amendment 7 94, such an argument is equally unavailing. A § 2255 motion is not the proper vehicle to ask the Court to apply the factors set forth in Amendment 7 94 in the hopes of obtaining a sentencing reduction. See United States v. Addonizio, 442 U.S. 178, 185 (1979) (noting the relief contemplated by § 2255 "does not encompass all claimed errors in conviction and sentencing"); United States v. Newbold, 791 F.3d 4 55, 4 59 (4 th Cir. 2015) (discussing the types of errors that can be corrected under § 2255 and noting that "ordinary misapplication of the guidelines"' is not such an error) (citation and internal quotation marks omitted); United States v. ...


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