Olivo-Rosa v. United States
| Decision Date | 31 March 2019 |
| Docket Number | CIVIL No. 15-2914 (DRD),Related to Cr. No. 12-626 (DRD) |
| Citation | 373 F.Supp.3d 367 |
| Parties | Marciano OLIVO-ROSA, Petitioner v. UNITED STATES of America, Respondent |
| Court | U.S. District Court — District of Puerto Rico |
Franco Lorenzo Perez-Redondo, Federal Public Defender, San Juan, PR, for Petitioner.
Mariana E. Bauza, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Respondent.
Before the Court are the following motions: (a) Marciano Olivo-Rosa's ("Petitioner" or "Olivo-Rosa") pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (D.E. 1)1 , (b) Petitioner's Amended Motion under Section 2255 (D.E. 10)2 ; and (c) the United States of America's ("Respondent") Responses in opposition (D.E. 5 and D.E. 23). For the reasons set forth below, Petitioners Motions Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence are DENIED.
On August 15, 2012, Olivo-Rosa was charged in a two count Indictment charging violations of 18 U.S.C. §§ 1951, 924(c), and § 2 (Cr. No. 12-626 (DRD), D.E. 24)3 . On July 19, 2013, Olivo-Rosa was charged in a six count Superseding Indictment for violations to 18 U.S.C. §§ 1951, 924(c), and § 2 (Cr. No. 13-095 (ADC), D.E. 63)4 . On June 23, 2014, Olivo-Rosa appeared before a Magistrate Judge and in a consolidated proceeding, pled guilty to Count One in criminal case 12-626 (DRD) and to Counts One, Three, Four, and Five in criminal case 13-095 (ADC) (Cr. 12-626 (DRD), D.E. 139)5 .
Count One of Cr. No. 12-626 (DRD) charged : (Cr. No. 12-626, D.E. 24 at p. 1).
Count One of Cr. No. 13-095 (ADC) charged : "That on or about November 7, 2012, in the District of Puerto Rico and within the jurisdiction of this Court, [another co-defendant] and [3] Marciano-Olivo-Rosa, a/k/a, Marci, the defendants herein, aiding and abetting each other, did knowingly and unlawfully obstruct, delay and affect commerce as that term is defined in Title 18, United States Code, Section 1951(b)(3), and the movement of articles and commodities in such commerce, by robbery as that term is defined in Title 18, United States Code, Section 1951(b)(1), in that the defendants [another co-defendant} and Marciano Olivo-Rosa, a/k/a, Marci, did unlawfully take SEVEN HUNDRED AND SEVENTY-THREE DOLLARS ($ 773.00), from AutoZone, in the presence of employees, against their will by means of actual and threatened force, violence, and fear of injury, immediate and future to their person, that is, threatening the employees with a firearms in order to commit the robbery. All in violation of Title 18 United States Code, Section 1951 and Title 18, United States Code, Section 2. (Cr. No. 13-095, D.E. 63 at p.p. 1-2).
Count Three of Cr. No. 13-095 (ADC) charged : "That on or about October 9, 2012, in the District of Puerto Rico and within the jurisdiction of this Court, Marciano Olivo-Rosa, the defendant herein, aiding and abetting [another person], did knowingly and unlawfully obstruct, delay and affect commerce as that term is defined in Title 18, United States Code, Section 1951(b)(3), and the movement of articles and commodities in such commerce, by robbery as that term is defined in Title 18, United States Code, Section 1951(b)(1), in that defendant Marciano Olivo-Rosa, a/k/a, Marci, did unlawfully take approximately ONE-THOUSAND FIVE-HUNDRED AND TWENTY-NINE DOLLARS ($ 1,529.00), from Advanced Auto Parts, in the presence of employees, against their will by means of actual and threatened force, violence, and fear of injury, immediate and future to their person, that is, threatening the employees with a firearms in order to commit the robbery. All in violation of Title 18 United States Code, Section 1951 and Title 18, United States Code, Section 2. (Cr. No. 13-095, D.E. 63 p. 3).
Count Four of Cr. No. 13-095 (ADC) charged : "That on or about October 9, 2012, in the District of Puerto Rico and within the Jurisdiction of this Court, [3] Marciano Olivo-Rosa, a/k/a, Marci the defendant herein, aiding and abetting [another person], did knowingly use, carry, and brandish firearms and ammunition, that is, a black pistol, during and in relation to a crime of violence, as charged in Count Three of the Indictment, [Robbery by force] for which the defendant may be prosecuted in a court of the United States, that is Interfering with commerce by threats or violence, in violation of Title 18, United States Code, Section 1951. All in violation of Title 18, United States Code, Section 924(c)(1)(A)(ii) and Title 18 United States Code, Section 2. (Cr. No. 13-095, D.E. 63 pp. 3-4).
Count Five of Cr. No. 13-095 (ADC) charged : "That on or about October 20, 2012, in the District of Puerto Rico and within the jurisdiction of this Court, [3] Marciano Olivo-Rosa [and another co-defendant], aiding and abetting each other and [another person], did knowingly and unlawfully obstruct, delay and affect commerce as that term is defined in Title 18, United States Code, Section 1951(b)(3), and the movement of articles and commodities in such commerce, by robbery as that term is defined in Title 18, United States Code, Section 1951(b)(1), in that defendants Marciano Olivo-Rosa, a/k/a, Marci, and [another co-defendant] did unlawfully take approximately ONE-THOUSAND FOUR HUNDRED AND NINETY-EIGHT DOLLARS ($ 1,498.00), from Advanced Auto Parts, in the presence of employees, against their will by means of actual and threatened force, violence, and fear of injury, immediate and future to their person, that is, threatening the employees with a firearms in order to commit the robbery. All in violation of Title 18 United States Code, Section 1951 and Title 18, United States Code, Section 2. (Cr. No. 13-095, D.E. 63 at pp. 4-5).
The defendant Marciano Olivo-Rosa entered into a Plea Agreement stipulating that he would request a term of imprisonment of 15 years regardless of the applicable guideline range and irrespective of his criminal history category; while the United States would request a term of imprisonment of 20 years regardless of the applicable guideline range and irrespective of defendant's criminal history category (Cr. No. 12-626 (DRD), D.E. 137 at p. 9). The parties did not stipulate as to any Criminal History Category (CHC) for defendant (Id. ). The Plea Agreement included a waiver of appeal providing that defendant would surrender his right to appeal the judgement and sentence if the Court sentenced him in accordance with the terms and conditions set forth in the Sentence Recommendation which was a Sentence between 15 and 20 years as stated in D.E. 137 at p. 9 (Cr. No. 12-626 (DRD), D.E 137 at p. 9). Defendant accepted responsibility for Count One assigned to the undersigned, as well as to Counts One, Three, Four (Count Four constitutes the use of a weapon under 18 U.S.C. 924(c)(1)(A)(ii) ), and Five, which was also assigned to the undersigned by the Honorable Aida Delgado-Colon, District Judge for the District of Puerto Rico (Cr. No. 12-626 (DRD) D.E. 137). The defendant, thus, was charged with four robberies affecting interstate commerce, and accepted guilt in one weapon charge in Count Four (Cr. 13-095 (ADC) D.E. 137), for "the use of a weapon in furtherance of a violent crime, as charged in Count Three of this Indictment." (Cr. 12-626 (DRD) D.E. 137, p.4).
On November 14, 2014, Olivo-Rosa was sentenced to a total term of imprisonment of 216 months (Cr. No.12-626 (DRD), D.E. 156). The specific Sentence consists of a total of 132 months for the Robberies to be served concurrently, and 84 months to be served consecutively, for the charges under 18 U.S.C. § 924 (Cr. No.12-626 (DRD), D.E. 157 at p. 2). Judgment was entered on November 18, 2014 (Cr. No. 12-696 (DRD), D.E. 157), and on November 20, 2014, Olivo-Rosa filed a timely notice of appeal (Cr. No. 12-626 (DRD), D.E. 158). On appeal, counsel moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and filed a supporting brief arguing that there were no non-frivolous grounds for appeal. Olivo-Rosa did not file a pro se supplemental brief . The Court of Appeals granted later a motion to withdraw, and summarily affirmed the District Court Judgment (Id. ).
On November 23, 2015, Petitioner Olivo-Rosa filed a timely pro se Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (D.E. 1 ). On March 8, 2016, Respondent filed a Response in opposition to Petitioner's Motion under Section 2255 (D.E. 5). On February 13, 2017, Petitioner, represented by the Federal Public Defender, filed an Amended Motion to Vacate Under 28 U.S.C. § 2255 Motion (D.E. 10 ). On November 7, 2018, Respondent filed a Response to Petitioner's Amended Motion under Section 2255 (D.E. 23).
Pursuant to 28 U.S.C. § 2255, a federal prisoner may petition to vacate, set aside, or correct his or her sentence by...
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