United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Gina Renee
Lopez-Orfield, Pro Se Defendant.
P. Jones United States District Judge
defendant, Gina Renee Lopez-Orfield, has filed a Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255, challenging her 78-month sentence. The United
States has filed Motions to Dismiss and the issues have been
fully briefed. After reviewing the record and considering the
arguments of the parties, I will grant the United States'
Motions to Dismiss and deny Lopez-Orfield's § 2255
January 12, 2015, Lopez-Orfield and multiple other
codefendants were indicted for drug-related crimes.
Lopez-Orfield was charged with conspiracy to manufacture,
distribute, and possess with intent to distribute a mixture
or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A), and 841(b)(1)(C). Lopez-Orfield
pleaded guilty pursuant to a written Plea Agreement.
change of plea hearing was held on November 5, 2015.
Lopez-Orfield affirmed that she had received a copy of the
Indictment and the Plea Agreement and had had adequate
opportunity to review both documents with counsel. Plea
Hr'g Tr. 5, ECF No. 874. I asked her whether she was
“fully satisfied with [her] attorney's
representation” and she answered,
“Absolutely.” Id. Lopez-Orfield affirmed
her understanding that she was giving up her right to appeal
and collaterally attack her sentence, except for matters that
cannot be waived under the law and claims of ineffective
assistance of counsel. Id. at 9. Lopez-Orfield
affirmed that she wanted to plead guilty to the charge in the
Indictment because she was, in fact, guilty. Id. at
13. The government stated that if the case were to proceed to
trial, it was prepared to prove that Lopez-Orfield received
methamphetamine for distribution from sources, returned
payment to those sources, and communicated with members of
the conspiracy via phone calls and text messages.
Id. at 13-14. When given an opportunity to do so,
she did not dispute or contest any of the facts against her.
Id. at 14. I found Lopez-Orfield fully competent and
capable of entering an informed plea. Id. at 14-15.
Presentence Investigation Report (“PSR”) was
prepared prior to sentencing. It recommended an advisory
guideline range of 78 to 97 months. PSR ¶ 556, ECF No.
778. Lopez-Orfield did not file any objections to the PSR. I
sentenced Lopez-Orfield to a within-guideline sentence of 78
months' incarceration. J. 2, ECF No. 775. Lopez-Orfield
did not appeal.
filed a § 2255 motion arguing that I erred by failing to
reduce her sentence based on her minor role in the
conspiracy. § 2255 Mot. 4, ECF No. 858. She later filed
a pleading adding a claim that she had received ineffective
assistance of counsel because her attorney had suffered from
a conflict of interest and had failed to challenge the
evidence produced in discovery and the Indictment. Am. Claims
Pursuant to 28 U.S.C. § 2255, ECF No. 887. The United
States filed Motions to Dismiss both her initial motion and
the new claims.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that his or her sentence was
“imposed in violation of the Constitution or laws of
the United States”; (2) that “the court was
without jurisdiction to impose such sentence”; or (3)
that “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). Lopez-Orfield bears
the burden of proving grounds for a collateral attack by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958).
Minor Role Reduction.
argues that I erred by sentencing her without granting her a
minor role reduction pursuant to Amendment 794 to United
States Sentencing Guideline § 3B1.2. This claim is
this issue is waived. Lopez-Orfield's plea agreement
expressly waived her right to collaterally attack her
sentence other than to raise issues that cannot be waived, by
law, or for ineffective assistance of counsel. See United
States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005)
(concluding that collateral attack waivers are generally
enforceable following a knowing and voluntary guilty plea, as
was the case here). Second, at the time of sentencing,
Lopez-Orfield never requested a reduction for a minor role,
nor objected to the PSR. Accordingly, she has procedurally
defaulted on this claim. See United States v.
Mikalajunas, 186 F.3d 490, 492 (4th Cir. 1999) (noting
that in order to collaterally attack a conviction or
sentence, the defendant generally must have raised those
claims before the trial court and on direct appeal).
addition, Lopez-Orfield has not pointed to any evidence that
would warrant a minor role reduction. At her guilty plea
hearing, she admitted that she was involved in selling
methamphetamine, returned payment to her sources, and
communicated with members of the conspiracy via cell phone
and text messages. Plea ...