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United States v. Breton-Pichardo

United States District Court, W.D. Virginia, Harrisonburg Division

March 22, 2018



          Michael F. Urbanski, Chief United States District Judge

         Jose Breton-Pichardo, a federal inmate proceeding pro se, has filed an amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, asserting a multitude of claims in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). ECF No. 636. The government moved to dismiss Breton-Pichardo's § 2255 motion, ECF No. 641, and Breton-Pichardo did not respond. For the reasons that follow, the court will DENY Breton-Pichardo's § 2255 motion and GRANT the government's motion to dismiss.


         On January 24, 2003, a federal grand jury returned an indictment against Breton-Pichardo, charging him with conspiracy to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846 ("Count One"). On May 29, 2003, Breton-Pichardo and the government entered into a written plea agreement, in which Breton-Pichardo agreed to plead guilty to Count One. Plea Agree., ECF Nos. 53, 62.

         On November 14, 2003, a criminal judgment was entered sentencing Breton-Pichardo to 262 months of imprisonment followed by eight years of supervised release.[1]Judgment at 2-3, ECF No. 100. The judgment accepted the factual findings of the Presentence Investigation Report ("PSR"), which found Breton-Pichardo to be subject to the enhanced penalty as a career offender pursuant to United States Sentencing Guidelines ("USSG") § 4B1.1 (2002), based on two prior felony convictions for a controlled substance: 1994 and 1996 New York attempted criminal sales of a controlled substance.[2] PSR ¶ ¶ 48, 52, 53, ECF No. 504. Applying the career offender enhancement, the sentencing court accepted the PSR's guideline imprisonment range of 262-327 months imprisonment. Breton-Pichardo objected to the presentence report, and filed a timely appeal to his conviction and sentence. ECF Nos. 92, 99.

         On direct appeal, Breton-Pichardo raised two claims to the United States Court of Appeals for the Fourth Circuit, asserting that trial counsel was ineffective for failing to properly advise him on his career offender status and sentencing guidelines factors. The Fourth Circuit dismissed the appeal and affirmed Breton-Pichardo's conviction and sentence, holding that he could only assert ineffective assistance of counsel claims on collateral review. See United States v. Breton-Pichardo. No. 03-4883, 114 Fed.Appx. 577 (4th Cir. Nov. 30, 2004), ECF No. 262. Breton-Pichardo then filed a petition for writ of certiorari with the United States Supreme Court, which the Court granted, vacating the Fourth Circuit's 2004 judgment and remanding the case for further review in light of United States v. Booker. 125 S.Ct. 738 (2005). See Breton-Pichardo v. United States. 544 U.S. 916, 125 S.Ct. 1676 (2005). On remand, the Fourth Circuit found that Breton-Pichardo knowingly and voluntarily waived his right to appeal sentencing guidelines factors and, consequently, waived any appellate review of Booker claims. United States v. Breton-Pichardo. No. 03-4883, 155 Fed.Appx. 709 (4th Cir. Dec. 1, 2005), ECF No. 309. The Fourth Circuit dismissed the appeal and reinstated its initial decision affirming the district court's conviction and sentence. Id.

         Beginning in 2008, Breton-Pichardo filed a series of motions to reduce his sentence based on amendments to the USSG that effectively lowered the base offense levels for convictions involving crack cocaine. On August 8, 2008, Breton-Pichardo filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3852 and Amendment 706, which the court denied because Breton-Pichardo was ineligible for a reduction as his offense level and guideline range were a result of his career offender status. ECF Nos. 499, 501. Breton-Pichardo appealed, and the Fourth Circuit affirmed the district court's order. United States v. Breton-Pichardo. No. 08-7938, 304 Fed.Appx. 211 (4th Cir. Dec. 29, 2008), ECF No. 506. On February 1, 2012, Breton-Pichardo filed a second § 3852 motion to reduce his sentence based on the Fair Sentencing Act and Amendment 750, and on February 18, 2015, he filed a third § 3852 motion to reduce his sentence based on Amendment 782. ECF Nos. 575, 592.

         The court denied both motions, respectively, finding that Breton-Pichardo was ineligible for reductions under each amendment because his total offense level and custody range were a result of the career offender guideline.[3] ECF Nos. 577, 610.

         On March 22, 2017, Breton-Pichardo filed his initial § 2255 motion with the U.S. District Court for the Eastern District of Virginia, but the motion was transmitted to this district once it was ordered that the motion was erroneously docketed there. ECF Nos. 633, 633-2. On April 10, 2017, Breton-Pichardo filed the present amended § 2255 motion seeking a reduced sentence in light of Johnson v. United States, 135 S.Ct. 2551 (2015), [4] and raising four claims for relief. In his first claim, Breton-Pichardo alleges he is entitled to a reduced sentence based on Amendments 706, 750, and 782[5] of the USSG, arguing that he was discriminated against, and that he would have received die benefit of the amendments and better representation under die law had he been a U.S. Citizen. In his second claim, Breton-Pichardo broadly asserts that he was institutionally discriminated against and is entailed to a reduced sentence. In support of both his first and second claims, Breton-Pichardo alleges he suffers cruel and unusual punishment because he faces potential deportation. In his third claim, Breton-Pichardo seeks a sentence reduction by appealing any designation under the Armed Career Criminal Act and alleging "double jeopardy under the fifth amend [sic]." He further alleges he is entitled to a reduced sentence because his conviction was based on a non-violent offense, and that he received ineffective assistance of counsel at trial regarding this issue. Finally, in his fourth claim, Breton-Pichardo requests oral argument on the present motion so the court can further consider his first three claims.

         In accordance with Standing Order 2015-5, the court appointed the Federal Public Defender's Office to represent Breton-Pichardo with regard to any claim for relief he may have under § 2255 following the Johnson decision. Appointed counsel, however, has not filed a notice of appearance with the court or otherwise been involved with die case.


         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a 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). Breton-Pichardo bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261, F.2d 546 (4th Cir. 1958).


         As an initial matter, Breton-Pichardo purports to stake the timeliness of his § 2255 motion on a brief reference to the Supreme Court's decision in Johnson in his third claim. Section 2255(f) states that a "1-year period of limitation shall apply to a motion under this section, " and § 2255(f)(3) allows for the limitations period to begin on "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Breton-Pichardo filed his first § 2255 motion on March 22, 2017, over a decade after his conviction became final and more than a year after June 26, 2015, the ...

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