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United States v. Ramirez-Jimenez

United States District Court, Ninth Circuit

May 15, 2013

UNITED STATES OF AMERICA, Respondent,
v.
DANIEL RAMIREZ-JIMENEZ, Movant.

FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Movant is a federal prisoner proceeding without counsel. Movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.[1] In 2011, movant pled guilty to conspiracy to possess, and possession with intent to, distribute 500 grams or more of methamphetamine. He seeks post-conviction relief alleging that defense counsel was ineffective at sentencing. For the reasons set forth below, the court finds that respondent's motion to dismiss should be granted, and the § 2255 motion should be denied.

II. Movant's Claims

Movant raises the following claims:

1. Defense counsel failed to object to the court's error in assessing an additional criminal history point for speeding, a minor traffic infraction;

2. Defense counsel failed to object to the court imposing two levels of enhancement because movant was on probation at the time of the offense;

3. Defense counsel failed to investigate movant's criminal history prior to sentencing, and petition the California Superior Court to terminate movant's probation nunc pro tunc inasmuch as movant was on probation for the purpose of paying the fine, but not as part of the underlying criminal sentence; and

4. Defense counsel failed to object to the court assessing an additional criminal history point for movant's shoplifting conviction.

(Dkt. No. 78.)

III. Procedural History

Movant was charged by indictment with conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine (21 U.S.C. §§ 841(a)(1) and 846) (count one), and distribution of 500 grams or more of methamphetamine (21 U.S.C. § 841(a)(1)) (count two). (Dkt. No. 12.) Movant pled guilty to count one on October 27, 2010. (Dkt. No. 59.) On June 9, 2011, movant was sentenced to 108 months in prison, a five year term of supervised release, and a $100.00 special assessment. (Dkt. No. 76.) The judgment of conviction was entered on June 21, 2011. (Dkt. No. 77.)

Movant did not file an appeal.

On June 4, 2012, movant filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

IV. Factual Basis for the Plea

In early October 2008, a confidential informant ("CI") told a DEA [Drug Enforcement Administration] agent about a source of methamphetamine in the Sacramento area named "Olie." On October 21, 2008, Olie told the CI that he would be receiving three pounds of crystal ...

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