The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING MOVANT'S § 2255 MOTION
Movant Ignacio Mendoza, a federal prisoner incarcerated at Eloy Detention Center in Eloy, Arizona, moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. Respondent the United States of America opposes the motion. Mendoza did not file a reply. Having considered all of the papers filed by the parties, the Court DENIES Mendoza's motion to vacate, set aside or correct his sentence.
On June 11, 2003, the Oakland police arrested Mendoza and Joseph Aguilar for selling approximately 533 grams of heroin to an undercover officer. On June 13, 2003, the United States filed a complaint in this district charging Mendoza and Aguilar with violations of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. On July 10, 2003, a grand jury indicted both Mendoza and Aguilar on two counts for violations of 21 U.S.C. § 846 (Conspiracy to Possess with Intent to Distribute) and 21 U.S.C. § 841(a)(1) (Possession with Intent to Distribute Heroin).
In the months that followed, Mendoza met with his defense counsel several times to discuss his case. (Defense Counsel Dec. ¶ 4). On more than one occasion, Mendoza explained to counsel his involvement in the offense. (Id. ¶ 6). Mendoza made the following admissions: that he knew Aguilar; that Aguilar informed him that someone was interested in buying twenty ounces of heroin; that Mendoza agreed to supply the twenty ounces to Aguilar for sale; that Mendoza determined the price, contacted the supplier and received the heroin within two weeks; that Mendoza provided a sample to Aguilar at the request of the buyer; that the buyer was satisfied with the quality of the product; that Aguilar arranged the date and place for the sale; that Mendoza agreed to drive Aguilar to the designated meeting place; that Mendoza packaged the heroin and placed it in a trailer attached to the back of his truck; that when they arrived at the meeting place, Mendoza exited the truck to present the buyer with the heroin; that Mendoza was arrested while removing the heroin from the trailer. (Id.).
Counsel and Mendoza also discussed the option of entering into a plea agreement and Mendoza's safety valve eligibility, which would allow him to receive a sentence below the five year statutory mandatory minimum. (Id. ¶ 5). Counsel explained that, to be eligible, Mendoza would have to make a proffer statement to the government truthfully acknowledging and describing his role in the offense. (Id.).
On October 6, 2003, Mendoza plead guilty to count one of the indictment, conspiracy to possess with intent to distribute 533 grams of heroin, in exchange for a dismissal of the possession charge. The terms of the plea agreement were as follows:
(1) Mendoza would not file a collateral attack on his conviction or sentence, including a petition under 28 U.S.C. § 2255, at any time in the future, except for a claim of ineffective assistance of counsel in connection with the negotiation of the plea agreement or the entry of his guilty plea; (2) Mendoza would not request any other adjustments or reductions in the offense level or a downward departure of any kind. (Resp't Ex. 4 at ¶ 5).
On November 17, 2003, Probation Officer Charles Mabie prepared a pre-sentence investigation report concluding that Mendoza fell within the guideline range of forty-six to fifty-seven months, and met the "safety valve" provisions under 18 U.S.C. § 3553(f) and Sentencing Guideline § 5C1.2. Officer Mabie identified no other factors that would warrant an upward or downward departure. He recommended a sentence of forty-six months.
On February 25, 2004, Mendoza gave a proffer statement to government agents. At the time, Mendoza did not admit to supplying Aguilar with heroin. On March 8, 2004, Aguilar gave a proffer statement to Drug Enforcement Administration (DEA) agents. Aguilar claimed Mendoza supplied the heroin for the transaction and also had given Aguilar a small sample of heroin to give to the buyer.
Because of Mendoza and Aguilar's conflicting statements, the Assistant United States Attorney (AUSA) informed defense counsel that one or both of the defendants were not being truthful and, therefore, neither qualified for sentence reduction under the safety valve provision. However, the AUSA agreed to provide Mendoza an opportunity to give a second proffer statement.
On May 12, 2004, Mendoza gave a second proffer statement. During this interview, Mendoza admitted to procuring the heroin, supplying Aguilar with a sample, setting the price, packaging the heroin, driving Aguilar to the meeting place and delivering the drugs to the buyer. Prior to the sentencing hearing, the AUSA informed defense counsel that Mendoza was not eligible for the full benefit of the safety valve reduction because he had been untruthful in his first proffer statement. The AUSA recommended that the Court impose a mid-range sentence.
On June 7, 2004, the Court found Mendoza eligible for the safety valve provision and imposed a sentence of forty-eight months of imprisonment.
A prisoner in custody under sentence of a federal court may collaterally attack the validity of his sentence by a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255. ...