Lopez v. United States

1

ROLANDO BANZAN LOPEZ, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 1:21-cv-01097-STA-jay

United States District Court, W.D. Tennessee, Eastern Division

August 19, 2024

ORDER DENYING MOVANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 ORDER ON APPELLATE ISSUES

S THOMAS ANDERSON, UNITED STATES DISTRICT JUDGE.

Before the Court is Movant Rolando Banzan Lopez's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C § 2255 (ECF No. 1). Lopez, who is representing himself is an inmate, Bureau of Prisons register number 36792-079, currently housed at the United States Penitentiary McCreary in Pine Knot, Kentucky. The United States of America has responded in opposition to Lopez's request, and Lopez has filed a reply brief. For the reasons set forth below, the Motion is DENIED.

BACKGROUND

The government initiated a prosecution against Lopez by filing a sealed criminal complaint on December 8, 2017. The Clerk of Court docketed the criminal complaint as case number 1:17-cr-10105. The government supported its allegations with the affidavit of Drug Enforcement Agency Task Force Officer Adam Prince. According to TFO Prince's affidavit, Lopez and four other individuals had engaged in drug trafficking in West Tennessee in violation of the Controlled Substances Act. Lopez was arrested on December 12, 2017, and brought before the United States Magistrate Judge for an initial appearance on the charges the following day. At the conclusion of the initial appearance, the Magistrate Judge appointed CJA panel member John Holton, Esq. to represent Lopez.

On January 3, 2018, a grand jury returned an indictment (no. 1:17-cr-10105, ECF No. 60), charging Lopez with three offenses. Count 1 charged Lopez and others with conspiring to distribute and possess with the intent to distribute 50 grams or more of actual methamphetamine, its salts, isomers, or salts of isomers, in violation of 21 U.S.C. § 846. Count 2 charged Lopez and others with aiding and abetting each other in the distribution or attempted distribution and the possession with the intent to distribute or attempted possession with the intent to distribute 50 grams or more of actual methamphetamine, its salts, isomers, or salts of isomers, in violation of 21 U.S.C. § 841(a)(1). Finally, Count 3 charged Lopez with distributing or attempting to distribute and possessing with the intent to distribute or attempting to possess with the intent to distribute a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Later, on January 22, 2018, the grand jury superseded the indictment to name more co-conspirators and allege additional charges against Lopez's co-conspirators. The superseding indictment (no. 1:17-cr-10105, ECF No. 71) charged the same counts against Lopez but altered the charge in Count 3 to allege that Lopez had distributed or attempted to distribute and possessed with the intent to distribute or attempted to possess with the intent to distribute 50 grams or more of actual methamphetamine, its salts, isomers, or salts of isomers.

After the entry of an initial scheduling order, the Court amended the case management order to set January 18, 2019, as the deadline for the parties to submit a plea agreement. Am. Scheduling Order Sept. 28, 2018 (no. 1:17-cr-10105, ECF No. 211). The Court set a jury trial to begin March 4, 2019. On October 25, 2018, the Court denied Lopez's motion to suppress communications intercepted through the use of six Title III wiretaps. Sealed Order Denying Def.'s Mot. to Suppress Oct. 25, 2018 (no. 1:17-cr-10105, ECF No. 216).

On February 13, 2019, the parties notified the Court that they had reached an out-of-court agreement to resolve the charges against Lopez. Lopez had agreed to plead guilty to the conspiracy charged in Count 1 of the Superseding Indictment in exchange for the government's agreement to dismiss the remaining counts against Lopez. As part of the plea bargain, Lopez waived his right to appeal, unless his sentence exceeded the statutory maximum or resulted from an upward departure from the guidelines range established at sentencing. Plea Agr. ¶ 7 (no. 1:17-cr-10105, ECF No. 244).^[1]Lopez also waived his right to bring a collateral challenge to his sentence under § 2255. Id. For its part, the United States agreed to dismiss the remaining counts and “recommend that the defendant receive a full reduction for acceptance of responsibility.” Id. ¶ 6. The parties agreed to recommend to the Court that “the amount of relevant conduct for which the defendant should be held accountable is more than 50 grams of actual methamphetamine.” Id. The plea agreement nevertheless acknowledged that the parties' stipulation on this point was only a recommendation and that the Court would determine “the amount of relevant conduct for which the defendant should be held accountable.” Id.

The Court held a hearing on February 25, 2019, to determine whether to accept Lopez's change of plea. During the plea hearing, the undersigned conducted a Rule 11 colloquy, making certain that Lopez understood the charge to which he was pleading guilty, the minimum and maximum penalties, the rights he was giving up by pleading guilty, and the procedure for the sentencing phase. Change of Plea Hr'g Tr. (no. 1:17-cr-10105, ECF No. 365). Lopez confirmed that he was satisfied with his attorney's representation and that his attorney had thoroughly reviewed the plea agreement with him and gone over the possible sentences for Lopez's offense. Lopez represented to the Court that he had entered into the plea agreement freely and voluntarily following review of the document with his attorney and that he was in fact guilty of the crime to which he was pleading guilty. After the Assistant United States Attorney recited the factual basis for the plea and Lopez admitted the facts, the Court found that the charge against Lopez in Count 1 had a basis in fact. Having satisfied itself that Lopez understood his rights and voluntarily agreed to waive them as part of his agreement with the government, the Court accepted Lopez's guilty plea as to Count 1.

In anticipation of sentencing, the United States Probation Office prepared the presentence report (the “PSR”) (no. 1:17-cr-10105, ECF No. 315).^[2] The PSR recommended a base offense level of 38 under U.S.S.G. § 2D1.1(c)(1) because Lopez's offense involved the distribution of more than 90,000 kilograms in converted drug weight of controlled substances. Id. ¶ 40. More specifically, Lopez's offense involved 133.0 kilograms of “ice” (converted drug weight of 2.660 million kg), 269.25 grams of fentanyl (converted drug weight of 673.12 kg), 44.67 grams of hydrocodone (actual) (converted drug weight of 299.29 kg), and 6.49 kilograms of marihuana (converted drug weight 6.49 kg) for a total of 2,660,978.90 kg of converted drug weight. The PSR further recommended the addition of two points because the offense involved the importation of amphetamine or methamphetamine, two points for maintaining a premises for the purpose of distributing a controlled substance, and four points because Lopez was an organizer or leader of five or more persons in the drug trafficking conspiracy. The PSR calculated a total adjusted offense level of 46, which the Guidelines capped at 43. Id. at ¶ 85.^[3]Based on an offense level of 43 and criminal history category of VI, the Guidelines range for Lopez's offense was a 10-year minimum up to life in prison.

The Court held a sentencing hearing July 9, 2019. Counsel for Lopez raised two objections to the PSR's offense level calculations and the application of the Guidelines' drug house enhancement as well as the enhancement for being a leader or organizer. The Court heard the parties' arguments on these points and received testimony from DEA Agent John Krieger. Based on the proof introduced through Agent Krieger, the Court concluded that both enhancements should apply under the facts of Lopez's case. After hearing additional argument from counsel and allocution from Lopez, the Court analyzed the sentencing factors set forth in 18 U.S.C. § 3553(a).^[4]The Court sentenced Lopez to life in prison and five years of supervised release. Judgment (no. 1:17-cr-10105, ECF No. 334) was entered the same day. Lopez appealed the judgment to the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit dismissed the appeal due to the appeal waiver provision in Lopez's plea agreement.

Lopez raises six different grounds for relief as part of his § 2255 Motion. Ground 1 alleges that Lopez's trial counsel was ineffective for failing to argue Lopez's mental competence prior to Lopez's decision to change his plea. According to Lopez, he was taking Wellbutrin at the time and experienced side effects like delusions and an inability to concentrate. Lopez describes his trial lawyer Mr. Holton as a “puppetmaster” who coerced Lopez as a “puppet” into changing his plea. Lopez further alleges that Mr. Holton coerced Lopez's daughters to convince Lopez to take the plea bargain. Lopez also argues that the Court had an independent obligation to question Lopez's competence based on his presentation in court and Lopez's medical history.

Ground 2 is that trial counsel was ineffective by failing to advise Lopez about the effect of offense conduct and enhancements and Lopez's relevant conduct on the adjusted offense level calculations. Lopez claims that Mr. Holton never informed him the Court would determine the amount of drugs attributable to him or that the Court would make its finding under a preponderance of the evidence standard instead of proof beyond a reasonable doubt. Lopez also faults the Court for not explaining the two burdens of...