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United States v. Guijarro

United States District Court, D. Colorado

April 23, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
4. JORGE ALFREDO GUIJARRO, Defendant-Petitioner.

          ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255 MOTION

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         The matter is before the Court on Defendant-Petitioner Jorge Alfredo Guijarro's Petition under 28 U.S.C. § 2255, wherein he requests that his criminal conviction and sentence be vacated based on a sentencing error and because he received ineffective assistance of counsel. (Doc. # 1189.) Plaintiff-Respondent United States of America (the Government) objects to Mr. Guijarro's Petition (Doc. # 1203), and for the following reasons, the Court denies it.

         I. BACKGROUND

         On February 2, 2016, Mr. Guijarro pled guilty to Conspiracy to Distribute and Possess with the Intent to Distribute Five Kilograms or More of Cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(I)(a)(ii)(ll) based on his involvement in a drug trafficking organization between March 2011 and January 2012. (Doc. ## 1, 1067.)

         The plea agreement contained a waiver of appeal wherein he waived the right to challenge his “prosecution, conviction, or sentence in any collateral attack (including, but not limited to, a motion brought under 28 U.S.C. § 2255), ” except in limited circumstances, including a claim of ineffective assistance of counsel or prosecutorial misconduct. (Doc. # 1067 at 5.)

         The plea agreement also contained several stipulations regarding sentencing. For example, the Parties stipulated that Mr. Guijarro's base offense level was 34 because the amount of cocaine reasonably foreseeable to him was “at least 50 kilograms, but less than 150 kilograms.” (Id. at 10.) They further stipulated to a two-level enhancement for Mr. Guijarro's role as an organizer, leader, manager or supervisor in the drug conspiracy pursuant to USSG § 3B1.1(c); and a three-level downward departure for his timely acceptance of responsibility. (Id.)

         Mr. Guijarro was sentenced on May 31, 2016. (Doc. # 1196.) At sentencing, the Court determined that Mr. Guijarro's offense level was level 33 and his criminal history category was II, resulting in an advisory guideline range of 151 to 188 months in prison. (Id. at 10.) The Court then granted the Government's motion for a downward departure under § 5K1.1 and sentenced Mr. Guijarro to 120 months in prison. (Id. at 10, 20.)

         Mr. Guijarro's habeas petition raises several arguments that can be distilled into two main claims. First, Mr. Guijarro argues that the Court committed a sentencing error-namely, that it miscalculated Mr. Guijarro's base offense level to be 34, rather than 30. Second, Mr. Guijarro contends that he received ineffective assistance of counsel at sentencing because counsel failed to argue for a lower base offense level or to highlight mitigating factors that might lower is sentence. The Court addresses each claim in turn.

         II. SENTENCING ERROR CLAIM

         Mr. Guijarro first contends that his base offense level should have been a level 30, which applies to offenses involving “[a]t least 5 KG but less than 15 KG of Cocaine, ” not a level 34, which applies to offenses involving “[a]t least 50 KG but less than 150 KG of Cocaine, ” pursuant to United States Sentencing Guideline (USSG or Guideline) § 2D1.1. Mr. Guijarro's argument is premised on his assertion that the Guidelines provide for different base offense levels based on the purity of the cocaine involved. To support his argument, Mr. Guijarro also inserts “pure” into § 2D1.1(c) of the Guidelines. (Doc. # 1189 at 4.) The Government responds that Mr. Guijarro's claim lacks merit because it misinterprets the Guidelines.[1] The Court agrees with the Government.

         The Tenth Circuit has made clear that “[a]s long as there was a detectable amount of cocaine in the substance recovered from [the defendant], the purity . . . is irrelevant.” United States v. Laster, 659 Fed.Appx. 468, 475 (10th Cir. 2016); see also United States v. Maden, 173 F.3d 865 (10th Cir. 1999) (“[N]either the Sentencing Guidelines nor [21 U.S.C. § 841(b)(1)(A)] establishes a purity level for crack cocaine. See USSG § 2D1.1(c) notes to drug quantity table (D) (compare notes (B) & (C) which establish purity levels for ‘PCP' and ‘Ice').”). Indeed, for § 841(a)(1) convictions, the Guidelines assign defendants a base offense level based on “the quantity and type of drug” involved in the crime. United States v. Darton, 595 F.3d 1191, 1192 (10th Cir. 2010). The “quantity” of a drug is determined by its weight. Id. (citing USSG § 2D1.1(c)). “Unless otherwise specified, [2] the weight of a controlled substance set forth in the [drug quantity] table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” USSG § 2D1.1 (c) n.A.

         Thus, as long as-(1) the overall weight of the substance attributable to Mr. Guijarro was between 50 KG but less than 150 KG, and (2) that substance contained a “detectable amount” of cocaine base-his base offense level was 34, regardless of the cocaine's “purity.” Laster, 659 Fed.Appx. at 475; see § 2D1.1(c)(3).

         Accordingly, Mr. Guijarro's claim that the Court committed a sentencing error is without merit, and the Court therefore denies Mr. Guijarro's request to vacate or alter his sentence on those grounds.

         III. INEFFECTIVE ...


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