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Burgos v. United States

United States District Court, D. South Carolina, Florence Division

May 6, 2019

Enrique Garcia Burgos, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. Bryan Harwell Chief United States District Judge.

         This matter is before the Court on Petitioner Enrique Garcia Burgos's pro se Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 (“§ 2255 motion”). ECF No. 308. The Government has filed a Motion to Dismiss/Motion for Summary Judgment. ECF No. 324. The Court denies Petitioner's § 2255 motion and grants the Government's motion for the reasons herein.[1]

         Background

         On June 27, 2016, a criminal complaint was filed charging Petitioner and co-defendant Asuncion Arguello (“Arguello”) with possession with intent to distribute a quantity of cocaine and a quantity of heroin in violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess with intent to distribute a quantity of cocaine and a quantity of heroin in violation of 21 U.S.C. § 846. ECF No. 1. On July 7, 2016, attorney Rose Mary Parham (“plea counsel”) entered a notice of appearance as Petitioner's attorney. ECF No. 25. Plea counsel represented Petitioner through his guilty plea and sentencing.

         On October 16, 2018, a federal grand jury indicted Petitioner, Arguello, and three co-defendants in a five-count superseding indictment. ECF No. 161. Count one charged Petitioner with conspiracy to possess with intent to distribute and to distribute a quantity of heroin and a quantity of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)©, and 846. Id. Count four charged Petitioner with possession with intent to distribute a quantity of heroin and a quantity of cocaine in violation of 21 U.S.C. §§ 841(a)(1), and 841(b)(1)©. Id. Count five charged Petitioner with knowingly using and carrying firearms during and in relation to, and possessing firearms in furtherance of, a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Id.

         On July 25, 2017, Petitioner entered into a written plea agreement under which he agreed to plead guilty to count one of the superseding indictment. ECF No. 233 ¶ 1. In return for Petitioner's guilty plea, the government agreed to dismiss the remaining counts. Id. ¶ 3. Petitioner and the Government also entered a non-binding stipulation providing that Petitioner should be held accountable for a marijuana equivalency drug weight of at least 1, 000 kilograms but less than 3, 000 kilograms of marijuana, which resulted in a base offense level of 30. Id. ¶ 6. The same day, Petitioner pled guilty pursuant to the written plea agreement to count one of the superseding indictment. ECF Nos. 233, 234, & 235.

         The United States Probation Office prepared a presentence investigation report (“PSR”) dated September 20, 2017. The PSR found Petitioner's advisory guidelines sentence range was 97 to 121 months, based on a criminal history category of II and a total offense level of 29.

         On November 15, 2017, the Court held a sentencing hearing for Petitioner. ECF No. 266. The Court adopted the PSR, and granted Defendant's motion for variance. The Court sentenced Petitioner to 85 months imprisonment followed by three years of supervised release. ECF No. 270. Judgment was entered November 20, 2017. Id. Petitioner did not appeal.

         On September 27, 2018, [2] Petitioner filed the instant § 2255 motion. ECF No. 308. On October 25, 2018, plea counsel filed an affidavit addressing her representation of Petitioner. ECF No. 315. Thereafter, the Government filed a motion to dismiss/motion for summary judgment, ECF No. 324, and Petitioner filed a response in opposition to the Government's motion, ECF No. 327.

         Legal Standard

         Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. For a court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). The district court need not hold an evidentiary hearing on a § 2255 motion if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see United States v. Thomas, 627 F.3d 534, 539-40 (4th Cir. 2010). The determination of whether to hold an evidentiary hearing ordinarily is left to the sound discretion of the district court. Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970). “Letters, exhibits and other evidence not previously a part of the record may be considered by the court as part of the record in determining the necessity for an evidentiary hearing under Section 2255.” Id. at 531. “Affidavits also may be submitted and considered as part of the record.” Rule 7, Rules Governing § 2255 Proceedings.

         “When the district court denies § 2255 relief without an evidentiary hearing, the nature of the court's ruling is akin to a ruling on a motion for summary judgment.” United States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see generally Rule 12 of the Rules Governing Section 2255 Cases (“The Federal Rules of Civil Procedure . . ., to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “The evidence must be viewed in the light most favorable to the non-moving party, with all reasonable inferences drawn in that party's favor. The court therefore cannot weigh the evidence or make credibility determinations.” Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 413 (4th Cir. 2015) (internal citation and quotation marks omitted).

         “The writ of habeas corpus and its federal counterpart, 28 U.S.C. § 2255, will not be allowed to do service for an appeal. For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings.” Stone v. Powell, 428 U.S. 465, 477 n.10 (1976) (internal quotation marks and citation omitted). “Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error ...


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