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Title: Robert O'campo v. United States of America

August 3, 2012

TITLE: ROBERT O'CAMPO
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

JS-6

CIVIL MINUTES -- GENERAL

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE

Julie Barrera N/A Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: None Present None Present

PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITIONER'S

MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Before the Court is pro se Petitioner Robert O'Campo's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (the "Motion"). Mot. (Dkt. 1). The Court finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, and for the reasons stated below, the Court hereby DENIES the Motion.

I.Background

On March 20, 2006, Petitioner Robert O'Campo ("Petitioner") was convicted by a jury of violating 21 U.S.C. § 846 for conspiring to possess with intent to distribute methamphetamine. Mot. (Dkt. 1) at 2. Although the indictment only charged Petitioner with possessing "50 grams or more," the jury returned a special finding that Petitioner had possessed 150 grams or more of methamphetamine. Mot. (Dkt. 1) at 24-25. Because Petitioner's offense involved more than 50 grams of methamphetamine, the Pre-Sentence Report noted that Petitioner faced a mandatory minimum sentence of 10 years. Opp'n No. 05-124 (Dkt. 1022) at 4. The Court, relying on a variety of factors including the Federal Sentencing Guidelines and the Probation Office's Pre-Sentence Report, sentenced Petitioner to 292 months imprisonment.

Petitioner appealed his sentence to the Ninth Circuit in 2008 on the grounds that the Court erred in applying a two-level sentence enhancement and also that his sentence was unreasonable. United States v. Ocampo, 265 Fed. App'x 680 (9th Cir. 2008). Petitioner, through his counsel, argued that the two-level enhancement should not apply because the government did not establish that Petitioner ever possessed a firearm. Petitioner also argued that his sentence was unreasonable based on the disparity between his sentence and the sentences of the other co-defendants. Id. at 681. Ultimately, the Ninth Circuit affirmed Petitioner's sentence, approving this Court's application of the two-level sentence enhancement and finding that the 292 month term of imprisonment was reasonable. Id. The Supreme Court denied the petition for writ of certiorari on January 21, 2009. Ocampo v. United States, 555 U.S. 1148, 129 S.Ct. 1026 (2009).

On January 19, 2010, Petitioner filed the present motion to vacate, set aside, or correct a federal sentence based on violations of his Fifth and Sixth Amendment rights. Mot. (Dkt. 1).*fn1

II.Legal Standard

A motion to vacate, set aside, or correct sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief "[i]f the court finds 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(b). If the motion combined with the files and records of the case conclusively show that the prisoner is not entitled to relief, no evidentiary hearing on the issues is warranted. See id.

The standard of review of § 2255 petitions is "stringent" and the court "presumes earlier proceedings were correct." United States v. Nelson, 177 F. Supp.2d 1181, 1187 (D. Kan. 2001) (citation omitted). In a successful § 2255 motion, the "defendant must show a defect in the proceedings which resulted in a 'complete miscarriage of justice.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305 (1974)). It is important to note that "relief is not available merely because of error that may have justified reversal on direct appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1592 (1982); United States v. Addonizio, 442 U.S. 178, 184 99 S.Ct. 2235, 2239 (1979).

III.Discussion

In his motion, Petitioner seeks to invalidate his sentence on the ...


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