Aguirre v. United States

• Decision Date: 02 August 2012
• Docket Number: NO. 2:10-CV-276,NO. 2:06-CR-76,2:06-CR-76,2:10-CV-276
• Parties: TOBIAS FLORES AGUIRRE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

TOBIAS FLORES AGUIRRE, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

NO. 2:06-CR-76

NO. 2:10-CV-276

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE GREENEVILLE

Dated: August 2, 2012

MEMORANDUM OPINION

Tobias F. Aguirre ("petitioner" or "Aguirre"), a federal prisoner, has filed a "Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody," [Doc. 100]. The United States has responded in opposition, [Doc. 112], and the time for any reply by Aguirre has passed.¹ The matter is, therefore, now ripe for disposition. The Court has determined that the files and records in the case conclusively establish that Aguirre is not entitled to relief under § 2255 and no evidentiary hearing is necessary. For the reasons which follow, the petitioner's § 2255 motion lacks merit and will be denied and the case dismissed.

I.Procedural and Factual Background

Alfonzo Chavez Rojas ("Rojas") and Emanuel Flores Sanchez (real name Tobias Flores Aguirre), were charged in this Court by criminal complaint on October 26, 2006, with distribution of 50 grams or more of a mixture and substance containing a detectable amountof cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). [Doc. 1]. On November 7, 2006, Rojas and Aguirre were indicted by the federal grand jury in a ten count indictment, [Doc. 9]. Aguirre was charged in Count One, along with Rojas, with a conspiracy to distribute and to possess with the intent to distribute 500 grams or more of cocaine hydrochloride and 50 grams or more of cocaine base (crack), Schedule II controlled substances, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B) and (b)(1)(A); in Count Five, along with Rojas, with the distribution of 50 grams or more of cocaine base (crack), a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(A); in Count Six with distribution of cocaine hydrochloride in violation of 21U.S.C. §§ 841(a)(1) and 841 (b)(1)(C); in Count Seven with distribution of 50 grams or more of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); in Count Eight with distribution of cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); in Count Nine with possession of firearms in furtherance of a drug trafficking crime (i.e. the drug trafficking crime charged in Count Eight), in violation of 18 U.S.C. § 924(c); and in Count Ten with unlawful reentry into the United States by an alien who had previously been deported and removed from the United States in violation of 8 U.S.C. § 1326.

Among other pretrial motions, the petitioner filed a motion to suppress items seized during the execution of a search warrant at the petitioner's residence at 1089 Wilburn Road, Whitesburg, Tennessee, on October 26, 2006, alleging that the affidavit in support of the search warrant did not establish probable cause. [Docs. 27, 28]. Among other items, thegovernment seized powder and crack cocaine, firearms and money from the Wilburn Road residence on October 26, 2006. On January 17, 2007, the Magistrate Judge issued a report and recommendation recommending that the motion to suppress be denied, [Doc. 41]. After objections to the report and recommendation by Aguirre, [Doc. 43], the Court adopted the report and recommendation of the Magistrate Judge and petitioner's motion to suppress was denied on March 5, 2007. [Doc. 47]. After dismissal of Counts One and Ten, Aguirre proceeded to trial on Counts Five through Nine of the indictment on October 16, 2007. At the conclusion of a two day trial, a jury found Aguirre not guilty of Counts Five, Six and Seven but guilty as to Counts Eight and Nine. [Doc. 69].

A Presentence Investigation Report (PSR) was prepared by the United States Probation Office and disclosed to the parties on February 14, 2008. Aguirre's total offense level was established at 26 with respect to Count Eight which, with a criminal history category of I, resulted in a guideline range for imprisonment of 63 to 78 months. By statute, Aguirre faced a 60 month term of imprisonment as to Count Nine with that term of imprisonment to run consecutively to the sentence imposed as to Count Eight. Aguirre objected to the PSR; these objections were overruled by the Court, and on March 17, 2008, petitioner was sentenced to 78 months of imprisonment as to Count Eight and a consecutive, statutorily-mandated term of 60 months of imprisonment as to Count Nine, for an effective sentence of 138 months. Judgment was entered on March 28, 2008. [Doc. 83]. Petitioner then appealed and on May 17, 2010, the Sixth Circuit affirmed petitioner's convictions and sentence. United States v. Aguirre, 605 F.3d 351 (6th Cir. 2010). Petitioner's § 2255 motionwas then timely filed on December 20, 2010.

The facts in the case were summarized by the Sixth Circuit in its opinion as follows:

In the summer of 2006, Morristown Police Detective Michael Hurt began investigating the drug trafficking activities of Alfonzo Rojas. Rojas had two businesses in Morristown: a junkyard called "G&G Auto Parts" and a body shop on Main Street.

On July 11, 2006, Officer Hunt arranged to have Solomon purchase three ounces of crack cocaine from Rojas. Solomon made a recorded telephone call to Rojas, who agreed to meet her at the junkyard. Solomon was provided with $2,550 to purchase the crack cocaine and equipped with a listening device and a digital recorder so that agents could listen to the conversation. Officers followed Solomon to the junkyard and parked an eighth of a mile away. Because of the junkyard's location, the officers were not able to conduct visual surveillance of the transaction.

Rojas did not have the drugs with him when Solomon arrived and, according to Officer Hunt, Solomon waited approximately two and a half hours for the crack cocaine to be delivered. When the drugs arrived, Solomon advised the officers that the person who delivered the drugs would be leaving in a late 90's Jeep. Officer Hurt observed the jeep drive past, but he could not follow it without being noticed by the driver and, from his position, he could not tell who was driving the jeep. Solomon testified that Aguirre delivered the crack to Rojas.¹

¹At sentencing, the district court "simply refuse[d] to credit Ms. Solomon's testimony" and noted that [c]learly the jury did not credit Ms. Solomon's testimony, nor did the jury find the corroboration of her testimony sufficient to find beyond a reasonable doubt that Mr. Aguirre had committed the offenses charged in Count 5, 6, and 7." R. 95 Sentencing 14-15) Solomon testified that she had previously given false information under oath at trial.

After this first transaction, Solomon began working for Rojas at the junkyard. She called Officer Hurt one day and told him that the man who had delivered the drugs on July 11, 2006 was leaving the junkyard driving a gray S-10 Chevy pickup truck. Officer Hurt immediately called an officer on duty in a marked cruiser, whoeffected a traffic stop. During the stop, Officer Hurt photographed the driver. The photos, which were admitted into evidence, showed Aguirre.

On another day, Solomon told Officer Hurt that Aguirre would be at the body shop. Aguirre was driving a bright blue S-10 pickup truck. After Aguirre left the body shop, officers followed him to a double-wide trailer at Wilburn Avenue (the "Wilburn residence") and observed him go up to the front door and use a key to open the residence, which he then entered.

On October 24, 2006 Officer Hunt met with Solomon and had her place a recorded phone call to Rojas for an ounce of crack cocaine. She was provided with $900 to make the purchase and fitted with recording equipment. Officers video-taped the transaction. After Solomon arrived at the body shop to pick up the drugs she had ordered, Aguirre arrived in a bright blue S-10 pickup truck, exited the vehicle, and entered the shop. Solomon was initially waiting out in the van. A few minutes later, Aguirre and Rojas exited the office, Rojas patted Aguirre on the back, and Aguirre left. Rojas then went over to Solomon, and Solomon walked into the office. Rojas picked up a box and followed her in, and soon Solomon exited the office, got into her van, and met with the officers. She disclosed that Rojas had sold her powder cocaine instead of crack cocaine and, consequently, that it had cost $50 less than expected. After Aguirre left the body shop, followed by officers, he drove straight to the Wilburn residence.

On October 26, 2006 the officers obtained a search warrant for the Wilburn residence and arranged for Solomon to purchase another three ounces of crack from Rojas. Officers were observing the Wilburn residence when Solomon called Rojas, and these officers were informed of the time of Solomon's call. Shortly after the call, officers observed Aguirre leaving the Wilburn residence, and they followed him straight to Rojas's body shop. Officer Hurt observed and videotaped the transaction at the body shop. Solomon was the first to arrive at the body shop, and she had exited her vehicle and was standing in the parking lot when Aguirre arrived. After he arrived, Aguirre walked toward the body shop's garage. Rojas then arrived and, after Aguirre and Solomon relocated their vehicles, Rojas met with Solomon and a drug transaction occurred. Solomon then left, and officers retrieved the crack cocaine Rojas had sold her. Aguirre was arrested while he was still at the body shop; he did not have any drugs or money on him.

The officers then went to the Wilburn residence and executed their search warrant. No one was present. When they entered, they observed a picture of Aguirre and a female hanging above the televison, and they found male and female clothing and personal belongings, as well as the belongings of a child. In the house, the officers found two handguns, approximately a quarter kilogram of powered cocaine, and

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