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Ramirez v. United States

United States District Court, D. Utah

December 20, 2017

CHRISTIAN LUIS RAMIREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

          TED STEWART UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. For the reasons discussed below, the Court will deny the Motion and dismiss this case.

         I. BACKGROUND

         On October 19, 2016, Petitioner was charged with possession of methamphetamine with intent to distribute. On February 13, 2017, Petitioner pleaded guilty. On May 1, 2017, Petitioner was sentenced to 60 months in the custody of the Bureau of Prisons. Petitioner did not file a direct appeal. He timely filed the instant Motion on October 17, 2017.

         II. DISCUSSION

         Petitioner's Motion raises claims of ineffective assistance of counsel. Petitioner argues that counsel was ineffective in failing to challenge the drug type and quantity involved in his case. Petitioner also argues that his counsel was ineffective at sentencing.

         The Supreme Court has set forth a two-pronged test to guide the Court in making a determination of ineffective assistance of counsel. “To demonstrate ineffectiveness of counsel, [Petitioner] must generally show that counsel's performance fell below an objective standard of reasonableness, and that counsel's deficient performance was prejudicial.”[1] To establish prejudice, Petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”[2]

         A court is to review Petitioner's ineffective-assistance-of-counsel claim from the perspective of his counsel at the time he or she rendered the legal services, not in hindsight.[3] In addition, in evaluating counsel's performance, the focus is not on what is prudent or appropriate, but only what is constitutionally compelled.[4] Finally, “[t]here is a strong presumption that counsel provided effective assistance, and a section 2255 defendant has the burden of proof to overcome that presumption.”[5]

         Petitioner first argues that his counsel was ineffective for failing to challenge the Indictment and sentence based on the government's alleged failure to identify the controlled substance at issue. Petitioner relies heavily on cases analyzing the Controlled Substance Analogue Enforcement Act. Petitioner seems to suggest that he possessed “bath salts” and that the government failed to prove that the substance he possessed was a controlled substance or its analogue.[6] In particular, Petitioner argues that the government failed to show that he knew that the substance had effects similar to a controlled substance under Schedule II. However, Petitioner was not charged with possessing “bath salts” or any other controlled substance analogue. He was charged with possession of methamphetamine with intent to distribute. Both the Indictment and Superseding Information make clear that the controlled substance at issue was methamphetamine. Further, Petitioner admitted in his plea agreement that he knowingly possessed approximately 9 kilograms of methamphetamine with the intent to distribute. There is no question that methamphetamine is a controlled substance.[7] Therefore, Petitioner's reliance on these cases is misplaced and the Court cannot conclude that counsel was ineffective for failing to challenge the government's claim that Petitioner possessed methamphetamine. Moreover, Petitioner cannot show prejudice based on his admission in his plea agreement that he knowingly possessed methamphetamine.

         Petitioner also argues that counsel was ineffective in failing to investigate whether the methamphetamine involved was L-methamphetamine or D-methamphetamine. “There was nothing improper in this, as the operative statutes do not distinguish among types of methamphetamine, and, consequently, ‘[t]o convict a defendant, the prosecution must prove [or the defendant must admit] . . . only that the substance was generically methamphetamine.'”[8]

         Petitioner cites to a number of cases that have held that counsel was ineffective in failing to distinguish between types of methamphetamine for sentencing purposes. However, “as of November 1, 1995, this distinction between methamphetamine types has been eliminated, and L-methamphetamine is now treated the same as D-methamphetamine under the Guidelines.”[9]Because the distinction is irrelevant, counsel was not ineffective in failing to raise it.[10]

         Petitioner also argues that counsel was ineffective at sentencing in failing to argue for a lesser sentence under the factors set forth in 18 U.S.C. § 3553(a). Petitioner's argument, however, ignores that his sentence arose out of an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).[11] This agreement contemplated a sentence of 60 months, which was half of what was called for by the guidelines. The Court ultimately imposed the sentence called for by the parties' agreement. Based upon these facts, Petitioner cannot show either deficient performance or prejudice as a result of counsel's alleged failures.

         III. CONCLUSION

         It is ...


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