Lora v. United States

• Decision Date: 12 December 2016
• Docket Number: CASE NO. 16-20480-Civ-GAYLES,CASE NO. 14-20390-Cr-GAYLES
• Parties: MANUEL DEJESUS LORA, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

MANUEL DEJESUS LORA, Movant, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 16-20480-Civ-GAYLES

CASE NO. 14-20390-Cr-GAYLES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

December 12, 2016

MAGISTRATE JUDGE P.A.WHITE

REPORT OF MAGISTRATE JUDGE

I.Introduction

This matter is before the Court on the movant's prose motion to vacate, filed pursuant to 28 U.S.C. §2255, attacking the constitutionality of his convictions and sentences, entered following a guilty plea in case no. 14-20390-Cr-Gayles.

This cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B),(C);S.D.Fla. LocalRule 1(f) governing Magistrate Judges; S.D. Fla. Admin. Order 2003-19;andRules 8and10 Governing Section 2255Cases in the United States District Courts.

Before the Court for review are the movant's §2255 motion(Cv-DE#1), the Presentence Investigation Report ("PSI"), Statement of Reasons ("SOR"), along with all pertinent portions of the underlying criminal file, the factual proffer (Cr-DE#48), together with the change of plea (Cr-DE#78) and sentencing (Cr-DE#75) transcripts.This court also has the Government's response to this court's order to show cause and the movant's reply thereto.(Cv-DE# 6, 7).

II.Claims

Construing the §2255 motion liberally as afforded pro se litigants pursuant to Haines v. Kerner, 404 U.S. 519(1972), the movant raises the following grounds for relief:

(1)The District Court committed a procedural error during sentencing when applying §3553(a) factors.

(2)The District Court erred in failing to conduct an evidentiary hearing regarding the substance found in his possession.

(3)Counsel was ineffective in failing to convince him to proceed to trial.

(4)The movant should be resentenced under United States v. Johnson, 135 S.Ct. 2551(2015).

III.Factual Background and Procedural History

A.Facts of the Offense

The stipulated factual proffer reveals as follows.(Cr-DE#29).

If the following case were to proceed to trial, the United States would the following facts, among others, prove beyond a reasonable doubt:

On May 9, 2014, law enforcement was conducting surveillance of the defendant, Manuel Dejesus Lora, a/k/a "Emilio Encarnacion Melendez," in connection with an ongoing investigation.The defendant was observed driving from his place of work to his residence, both of which are in the Southern District of Florida.When he arrived at his residence, he met with his codefendant Anibal Oller, in the parking lot of his apartment complex.Aftera brief meeting, the defendant entered the apartment complex carrying a parcel, before emerging from the residence carrying a different parcel.The defendant approached Oller's vehicle and gave Oller the parcel he had brought from inside his apartment.The defendant then went inside.At that point, Oller drove away from the apartment complex and was stopped by law enforcement.Inside Oller's vehicle, law enforcement uncovered approximately eight kilogram-sized bricks of cocaine, several smaller plastic bags also containing cocaine, and approximately $35,000 in United States currency.Oller was placed under arrest, but did not make any statements.

Simultaneously, 1aw enforcement approached the defendant' s residence.While they were approaching the defendant's residence, the defendant's son, Christopher Lora, was stopped by 1aw enforcement as he ran out of the residence and through the parking lot.In Christopher Lora's possession was slightly less than two kilograms of cocaine.The defendant was arrested by law enforcement.A subsequent search of the defendant's apartment uncovered two firearms, a large amount of ammunition, and an additional amount of United States currency.In a post-Miranda statement, the defendant admitted that the cocaine belonged to him, he was a cocaine dealer, and the firearms were his.Both of the firearm s and a11 of the ammunition had been manufactured outside the state of Florida, and thus traveled in interstate or foreign commerce prior to the defendant's possession.He acknowledged being previously convicted for a drug trafficking crime and having been previously removed from the United States to the Dominican Republic.Christopher Lora also stated that the cocaine belonged to his father, the defendant.The defendant, who had been living under the assumed name "Emilio Encamacion Melendez," further stated that he had received cocaine from Anibal Oller on numerous occasions previously.

A search of the criminal indices uncovered that the defendant was in fact a convicted felon and had not had his right to possess a firearm restored.Further, the defendant had been removed as a result of a conviction for a drug trafficking crime and had not received the permission of the Attorney General or his successor, the Secretary of Homeland Security, to return to the United States.

(Cv DE# 48).

B.Indictment, Pre-trial Proceedings, Conviction,Sentencing, and Direct Appeal

On May 30, 2014, movant was charged in a four-count indictment with conspiracy to possess with the intent to distribute five kilograms or more of cocaine, in violation of Title 21, United States Code, Section 846; possession with the intent to distribute five kilograms or more of cocaine in violation of Title 21, United States Code, Section 841(a)(1); being in possession of firearm after sustaining a felony conviction, in violation of Title 18, United States Code, Section 922(g)(1); and illegal reentry into the United States by an aggravated felon, in violation of Title 8, United States Code, Section 1326(a) and (b)(2)(CR DE# 18).

On August 8, 2014, a change of plea proceeding, pursuant to Fed.R.Cr.P. 11, was conducted by the District Court. (Cr-DE#78).After movant was given the oath, the movant provided background information, including his age, and level of education.(Cr-DE#78:2-4).He denied ever being treated for any mental illness.(Id.:4).He also denied being treated for any type of addiction to drugs of any kind.(Id.).Next, he also denied currently being under the influence of any medication, prescription, or other substance.(Id.).

The movant affirmed that he wanted to plead guilty to counts 1, 3, and 4.In exchange, the government would move to dismiss count 2 at sentencing.(Id.:3).

Regarding the rights he was waiving by entering into a guilty plea, movant acknowledged he was giving up his right to a jurytrial, his right to challenge the government's evidence at trial, to call defense witnesses to testify on his own behalf, present his own evidence, and testify on his own behalf at trial.(Id.:5).Movant further understood that he was also waiving his right to appeal the convictions, and that had he proceeded to trial and been found guilty, he would have been able to prosecute a direct appeal, challenging the constitutionality of his convictions.(Id.:5).He also understood that if he is not a United States citizen, the plea would subject him to deportation or removal proceedings.(Id.).

The District Court next informed the movant that an adjudication of guilty could deprive him of valuable civil rights such as the right to vote, hold public office, serve on a jury, possess a firearm, reside in public housing, keep or maintain a professional license, etc. (Id.:6).

Next, movant confirmed he had reviewed the case and evidence against him with counsel, and was satisfied with the representation and advice provided by his lawyer.(Id.:6-8).Regarding his decision to plead guilty, the movant acknowledged he had discussed the issue thoroughly with counsel.(Id.).He also confirmed that he discussed the sentencing guidelines with his counsel and understood that his attorney could only provide him with her best assessment on how the guidelines might apply.(Id.).Movant also understood that the court could impose any sentence within and up to the statutory maximum for the offenses of conviction and that the movant would not be able to withdraw his plea solely as a result of the sentence imposed.(Id.:7).

With respect to the factual proffer, the movant stated that the facts contained therein were accurate.(Id.:8).The movant then plead guilty to the three charges because he was in fact guilty.(Id.:9).The court informed him that he could be facing a minimum term of ten years and up to life imprisonment.He stated that he understood.(Id.:10).The movant's counsel informed the court that the parties had not yet agreed on the amount of drugs and that this issue would be determined at sentencing.(Id.:11).The movant stated that he understood that the amount determination would have an impact on his sentence.(Id.:12).

The PSI was prepared (and altered following sentencing) to reveal as follows.With respect to the conspiracy to distribute cocaine and felon in possession charge, the base offense level was set at a level 26, because the court determined at sentencing that the movant was responsible for 1.7 kilograms of cocaine.(PSI¶27).Because dangerous firearms were possessed, the offense level was increased by two levels, § 2D1.1(b)(1).(PSI¶28).With respect to illegal re-entry, a base offense level of 8 was entered.(PSI¶33).Because the defendant was previously deported, after a conviction for a felony drug trafficking offense for which the sentence imposed exceeded 13 months, the offense level was increased by 16 levels if the conviction received criminal history points, §2L1.2(b)(1)(A).(PSI¶34).The adjusted offense level was set at 24.(PSI¶37).After applying a multiple count adjustment, the greater of the adjusted offense levels was 28.(PSI¶39).A two level increase in offense level was noted.(PSI¶41).The combined adjusted offense level was set at 30.(PSI ¶42).Three levels were then deducted from the base offense level, based on movant's timely acceptance of responsibility, resulting in a total adjusted base offense level 27.(PSI¶¶44-46).

The probation officer next determined that movant had three criminal history...