United States v. Garcia

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT v. JOSE ALONSO GARCIA DEFENDANT/MOVANT

No. 2:17-cr-20024-PKH-MEF-3

United States District Court, W.D. Arkansas, Fort Smith Division

March 23, 2022

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

HON MARK E. FORD UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant/Movant's Motion Under 28 U.S.C § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed on September 22 2021.^[1] (ECF No. 160). Defendant/Movant simultaneously filed an Affidavit (ECF No. 162) and a Memorandum of Law (ECF No. 163) in support of his § 2255 motion. The United States filed its response on October 27 2021. (ECF No. 165). Defendant/Movant filed a reply on November 15, 2021 (ECF No. 168) and, with leave of Court, he filed a Supplement (ECF No. 169) on January 10, 2022. As Defendant/Movant's Supplement raised a ground for relief not previously stated, the United States was directed to file a response (ECF No. 171), and it did so on February 8, 2022. (ECF No. 172). The matter is ready for report and recommendation.

I. BACKGROUND

On October 25, 2017, Defendant/Movant, Jose Alonso Garcia (“Garcia”), was named in an Indictment charging him with two drug trafficking offenses: Count One, conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and Count Three, aiding and abetting in the distribution of five grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii) and 18 U.S.C. § 2. (ECF No. 1). Garcia was arrested in Little Rock, Arkansas on November 8, 2017 (ECF No. 33), and he appeared for arraignment on November 14, 2017, at which time he entered a not guilty plea to the Indictment. (ECF No. 26). Patrick F. Flake (“Flake”), a CJA Panel attorney, was appointed to represent Garcia. (ECF Nos. 26, 30). Garcia waived the issue of detention and was ordered detained, and the case was set for jury trial on January 8, 2018. (ECF Nos. 28, 29). Flake filed a Motion for Continuance (ECF No. 36) on December 29, 2017, and it was granted by Order (ECF No. 37) entered on January 2, 2018. The jury trial was reset for February 12, 2018.

Flake filed a second Motion for Continuance (ECF No. 40) on January 29, 2018, which was denied by Order (ECF No. 41) entered on the same date. Two days later, the jury trial setting was cancelled, and the case was scheduled for a change of plea hearing, initially to be held on February 8, 2018, then rescheduled on February 5, 2018. (ECF Nos. 43, 44).

At the change of plea hearing on February 5, 2018, Garcia expressed dissatisfaction with Flake. (ECF No. 150, pp. 4-5). The Court took a brief recess to allow Garcia to confer with Flake. Id. at 6-7. At the conclusion of the recess, Flake advised the Court that he believed there was an irreconcilable conflict between Garcia and him, and the Court relieved Flake as counsel. Id. at 7. The jury trial was reset on March 5, 2018. (ECF No. 49). Russell A. Wood (“Wood”), a CJA Panel attorney, was appointed to represent Garcia. (ECF No. 54). Wood requested a continuance (ECF No. 64), which was granted (ECF No. 65), and the jury trial was reset on May 14, 2018.

On March 6, 2018, a Superseding Indictment was returned by the Grand Jury charging Garcia with one count of conspiracy to distribute methamphetamine (Count One), in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of aiding and abetting in the distribution of more than five grams of actual methamphetamine (Count Three), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii), and 18 U.S.C. § 2. (ECF No. 70). Garcia was arraigned on the Superseding Indictment on March 16, 2018, to which he entered a not guilty plea. (ECF No. 77). A jury trial remained set for May 14, 2018.

On March 28, 2018, Wood filed a Motion for Retesting of Drug Quantity and Quality and Motion for Approval of Expenditures (ECF No. 80), indicating that Garcia disputed the results of the DEA chemical analysis report. Garcia alleged that both the quantity and quality of the methamphetamine attributed to him were incorrect, and he referred to an in-court statement of his co-defendant, Jose Escalante, that the methamphetamine in the sample tested by the DEA was not as pure as the DEA analysis indicated. Id., ¶ 4. He requested that an independent lab be permitted to retest the methamphetamine. Id., ¶ 5. Finding that Garcia had not met even the minimal burden to state why the requested services were necessary, let alone demonstrate a reasonable probability that appointment of an expert was necessary to aid in his defense and prevent an unfair trial, the motion for retesting was denied in an Opinion and Order entered on April 12, 2018. (ECF No. 83).

On April 24, 2018, Garcia appeared with counsel before the Hon. P. K. Holmes, III, United States District Judge, for a change of plea hearing. A written Plea Agreement was presented to the Court, in which Garcia agreed to plead guilty to Count Three of the Superseding Indictment charging him with aiding and abetting the distribution of five grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii), and 18 U.S.C. § 2. (ECF No. 98, ¶ 1). The Plea Agreement also provided that Garcia's guilty plea was a conditional plea, with Garcia reserving the right to appeal the Court's denial of his Motion for Retesting of Drug Quantity and Quality and Motion for Approval of Expenditures. Id., ¶ 2. The Court determined that Garcia's conditional guilty plea was voluntary and supported by an independent factual basis, his guilty plea was accepted, and the Court deferred approval of the Plea Agreement pending completion of a presentence report. (ECF Nos. 97, 151).

An initial Presentence Investigation Report (“PSR”) was prepared by the United States Probation Office on June 22, 2018. (ECF No. 110). The Government had no objections to the initial PSR. (ECF No. 117). Garcia made several objections to the initial PSR, including: the quantity of methamphetamine attributed to him and the corresponding base offense level; that he was not given a reduction as a minor or minimal participant; that the career offender enhancement, based upon his convictions reported in paragraphs 55 and 57, was improper; that he was not under a criminal justice sentence at the time of the instant offense; that his conviction reported in paragraph 51 was more than 15 years prior to the instant offense, and three criminal history points should not have been assessed on that conviction; that he never handed the ounce of suspected methamphetamine to the UC as reported in paragraph 25; that no substance was ever obtained from him, as reported in paragraph 27, and the methamphetamine was not 97% pure and 53.789 grams of actual methamphetamine; that he is not a career offender; and that the Sentencing Guidelines are “unreasonable and unconstitutionally excessive.” (ECF No. 120).

In an Addendum responding to Garcia's objections, the Probation Officer noted that paragraphs 55 and 57 were inaccurately listed in paragraph 41, and that the correct paragraphs supporting Garcia's status as a career offender are paragraphs 56 and 58, and paragraph 41 was revised to reflect this correction. (ECF No. 121-1, p. 2). A similar correction was made regarding paragraph 55 (the correct paragraph reference being 56), with paragraph 65 being updated to reflect the correction, but the Probation Officer noted that the correction did not change Garcia's status as being under a criminal justice sentence at the time of the instant offense. Id. The Probation Officer clarified paragraph 25 to reflect that it was co-defendant Escalante, not Garcia, who handed the one ounce of methamphetamine to the UC but noted that Garcia was present during a controlled purchase on May 19, 2016. Id. at 3-4. No other changes affecting the guidelines calculation were made.

A final PSR was submitted to the Court on August 1, 2018. (ECF No. 121). The PSR determined that Garcia was accountable for 53.789 grams of actual methamphetamine sold to the UC on May 19, 2016. (ECF No. 121, ¶¶ 27, 30). Based on that drug quantity, Garcia's base offense level was determined to be 30. Id., ¶ 35. A four-level Chapter Four enhancement was assessed as Garcia was found to be a career offender. Id., ¶ 41. A three-level reduction for acceptance of responsibility was given. Id., ¶¶ 42, 43. Garcia's total offense level was determined to be 31. Id., ¶ 44. Garcia's prior convictions resulted in a criminal history score of 23, but two additional points were assessed because he was under a criminal justice sentence at the time of the instant offense, resulting in a total criminal history score of 25, placing him in criminal history category VI. Id., ¶¶ 64-66. Criminal history category VI also applied as Garcia was determined to be a career offender. Id., ¶ 67. The mandatory minimum term of imprisonment on the count of conviction was five years, with the statutory maximum being 40 years imprisonment. Id., ¶ 97. Based upon a total offense level of 31 and a criminal history category of VI, Garcia's advisory guidelines imprisonment range was reported to be 188 to 235 months. Id., ¶ 98.

In a Sentencing Memorandum (ECF No. 124) filed on August 26, 2018 Garcia argued the career offender enhancement was improper for three reasons: (1) his current offense, aiding and abetting possession with intent to distribute, was not a “controlled substance offense” due to the inchoate nature of the offense; (2) his prior conviction for accomplice to battery in the second degree was not a “crime of violence, ” again due to the inchoate nature of the offense; and (3), alternatively, application of the career offender enhancement would overstate the...