Velazquez v. United States, 2:10-CR-110
| Decision Date | 12 July 2018 |
| Docket Number | No. 2:10-CR-110,No. 2:15-CV-140,2:10-CR-110,2:15-CV-140 |
| Parties | MARIO HERNANDEZ VELAZQUEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
Pending before the Court is the motion of Mario Hernandez Velazquez ("Velazquez" or "Petitioner"), a federal inmate, to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Doc. 1184]. The Court finds the materials thus submitted, together with the record of the underlying criminal case (2:10-CR-110), conclusively show Velazquez is not entitled to relief on any of the claims asserted in his petition. Accordingly, the Court will decide this matter without an evidentiary hearing, see United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993), and will DENY Velazquez's motion for the following reasons.
A federal grand jury indicted Velazquez on January 11, 2011, charging him with conspiring to distribute and possess with the intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 846, 841(a)(1), (b)(1)(A) (Count One); five counts of distributing cocaine and/or cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Counts 43, 48, 53, 58, and 105); possessing with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 131); two counts of possessing a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Counts 106 and 132); and one count of using and carrying a firearm and ammunition as an illegal alien in violation of 18 U.S.C. §§ 922(g)(5)(a) and 924(a)(2) (Counts 133 and 134).
After a three-day jury trial, Velazquez was convicted of all counts [Doc. 1050]. A Presentence Report calculated Velazquez's sentencing guideline range to be 795 - 828 months. Specifically, it found he faced 135-168 months on the drug convictions, 60 months consecutive on Count 54, for using and carrying a firearm during and in relation to a drug trafficking crime; 300 months consecutive on Count 106, for possessing a firearm in furtherance of a drug trafficking crime; and another 300 months consecutive on Count 132, for possessing a firearm in furtherance of a drug trafficking crime.1 It noted that Velazquez faced a statutory mandatory minimum for these convictions of 780 months.
Velazquez's counsel filed a detailed sentencing memorandum asking the Court for a variance from his guideline range. After considering the 18 U.S.C. § 3553 factors, the District Court sentenced Velazquez to the minimum sentence provided for in the statute, that is, 780 months [Doc. 1083].
Velazquez timely appealed his conviction. On appeal, he challenged the sufficiency of the evidence supporting five of the twelve counts of conviction, i.e. conspiracy to distribute over five kilograms or more of cocaine (count 1); using and carrying a firearm during and in relation to adrug trafficking crime (count 54); possessing a firearm in furtherance of a drug trafficking crime (counts 106 and 132); and distribution of cocaine base (count 58). He also challenged the district court's admission of a tape-recorded conversation between Velazquez and two co-conspirators; the district court's submission of an improper verdict form for counts 106 and 132; and the reasonableness of his sentence. [Doc. 1135, pg. 1-2].
On the sufficiency of the evidence challenge, the Sixth Circuit affirmed his convictions. Regarding the evidence introduced showing Velazquez's involvement in the drug conspiracy, it accurately summarized the evidence introduced at trial against Velazquez as follows:
The government presented sufficient evidence to prove beyond a reasonable doubt that Velazquez conspired to distribute over five kilograms or more of cocaine. The government introduced multiple recorded conversations and video recordings that connected Velazquez to the conspiracy and established the scope of the conspiracy. In one recorded conversation, Velazquez told a confidential informant (CI) that he was "business friends" with the person "they call Primo," who FBI Special Agent Allen Pack identified at trial as Tomas Estrada Sarabia, the lead co-conspirator. Law enforcement officers intercepted "several" telephone calls between Velazquez and Sarabia over a three-month period in 2010. In one call, Velazquez asked Sarabia to "continue selling to [him]." Velazquez also told the CI that he sold drugs "every day." Velazquez stated: "[P]eople don't just buy a little bits [sic] from me, they buy halves [half ounces of cocaine] . . . [t]hey buy ones [ounces of cocaine]." Velazquez also told the CI that a month earlier someone broke into Velazquez's residence and stole from him two kilograms of cocaine. Special Agent Pack testified that police seized over three-and-a-half kilograms of cocaine from Sarabia and other co-conspirators. Further, Special Agent Pack testified that CIs purchased approximately a kilogram of cocaine from Sarabia and his "right-hand man," Antonio Herrera. Law enforcement officers also intercepted "numerous" calls between Sarabia and another co-conspirator, Manual Burelo, "discussing large quantities of cocaine" for Burelo to purchase from Sarabia. Additionally, 20.7 grams of cocaine were recovered from Velazquez's residence and an additional 16.19 grams of cocaine were purchased from Velazquez in controlled buys.
[Doc. 1135, pg. 2-3]. The Sixth Circuit then summarized the evidence against Velazquez regarding his involvement in the possession of firearms in furtherance of a drug trafficking offense and his using and carrying a firearm during and in relation to a drug trafficking offense:
The Sixth Circuit also affirmed Velazquez's 780-month sentence. Although he had asked the district court to vary from the guidelines, the Sixth Circuit noted that the "sentence was largely driven by the consecutive mandatory minimum sentences that he faced on three counts, i.e., 60 months of imprisonment on count 54, 300 months of imprisonment on count 106, and 300 months of imprisonment on count 132." [Doc. 1135, pg. 6]. The Sixth Circuit noted that "District Courts are constrained by mandatory minimums." Id. It noted that the District Court properly considered Velazquez's history and personal characteristics in reaching its sentence and acknowledged thatthe 780 months was below his Guidelines range of 795-828 months of imprisonment. Id.
The Sixth Circuit entered the final judgment on February 6, 2014. On May 7, 2015, Velazquez timely filed this § 2255 petition. He later filed a supplement on April 11, 2016 [Doc. 1217].
This Court must vacate and set aside Petitioner's sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack..." 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the fact of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the Court may summarily dismiss the § 2255 motion under Rule 4.
When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996). To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect...
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