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United States v. Ochoa-Alapisco

United States District Court, D. Minnesota

November 3, 2016

United States of America, Plaintiff,
v.
Aide Ochoa-Alapisco, Defendant. Criminal No. 14-378(6) ADM/LIB

          Benjamin Bejar, Esq., Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Aide Ochoa-Alapisco, pro se.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         On September 2, 2016, Defendant Aide Ochoa-Alapisco (“Ochoa-Alapisco”) filed a Motion to Vacate under 28 U.S.C. § 2255 [Criminal Docket No. 325].[1] Ochoa-Alapisco argues that she is entitled to a sentence reduction based on the newly amended United States Sentencing Guidelines § 3B1.2. For the reasons set forth below, Ochoa-Alapisco's motion is denied.

         II. BACKGROUND

         On November 18, 2014, eight co-defendants were charged with narcotics trafficking offenses in a five-count Indictment [Docket No. 18]. Ochoa-Alapisco was charged with one count of conspiracy to distribute 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and one count of aiding and abetting distribution of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2. See id. Each offense carried a mandatory minimum term of 120 months imprisonment.

         On March 3, 2015, Ochoa-Alapisco pled guilty to the conspiracy charge. See Min. Entry [Docket No. 190]. The Presentence Investigation Report (“PSR”) determined that Ochoa-Alapisco was an “average participant” in the drug trafficking organization and calculated her offense level to be 29, resulting in a guideline range of 87 months to 108 months. PSR ¶¶ 49, 66, 98. However, because of the mandatory minimum of 10 years imprisonment under U.S.S.G. § 5G1.1(c)(2), her effective guideline range was 120 months. Id. ¶ 98.

         In September 2015, prior to sentencing, Ochoa-Alapisco provided a safety-valve proffer. See Position Sentencing/Sentencing Mem. [Docket No. 274]. The Government agreed that Ochoa-Alapisco satisfied the safety-valve requirements under U.S.S.G. § 5C1.2, to lift the mandatory minimum. Thus, Ochoa-Alapisco's guideline range became 70 to 87 months imprisonment. See id.

         On September 18, 2015, Ochoa-Alapisco was sentenced to 48 months imprisonment. See Sentencing J. [Docket No. 280]. Ochoa-Alapisco did not directly appeal her conviction or sentence. On March 7, 2016, Ochoa-Alapisco filed a pro se Motion to Reduce Sentence [Docket No. 316], arguing that her sentence should be reduced pursuant to 18 U.S.C. § 3582(c)(2), which lowered the drug base offense levels under U.S.S.G. § 2D1.1(c). That motion was denied. See Order [Docket No. 320].

         Ochoa-Alapisco now moves for a sentence reduction under the newly amended U.S.S.G. § 3B1.2.[2] U.S.S.G. § 3B1.2(b) authorizes a two point offense level reduction if the defendant was a minor participant in the criminal activity. Ochoa-Alapisco argues that she is entitled to the downward variance because she only played a minor role in the drug trafficking organization. At no time prior to this Motion did Ochoa-Alapisco argue explicitly that she was a minor participant in the offense conduct or challenge the probation office's determination that she was an average participant.

         III. DISCUSSION

         28 U.S.C. § 2255 provides a person in federal custody with a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of his sentence. See United States v. Addonizio, 442 U.S. 178, 185 (1979). Relief is reserved for violations of constitutional rights and for a narrow range of injuries which were outside a direct appeal and which, if untreated, would result in a miscarriage of justice. See Poor Thunder v. United States, 810 F.2d 817, 821-22 (8th Cir. 1987). “While a guilty plea taken in open court is not invulnerable to collateral attack in a post conviction proceeding, the defendant's representations during the plea-taking carry a strong presumption of verity and pose a ‘formidable barrier in any subsequent collateral proceedings.'” Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

         The Government first contends that Ochoa-Alapisco's collateral attack on the application of the guidelines is not cognizable under § 2255. Under established Eighth Circuit precedent, “ordinary questions of guideline interpretation falling short of the ‘miscarriage of justice' standard do not present a proper section 2255 claim.” Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995). A sentence that is unlawful or illegal-imposed without, or in excess of, statutory authority-satisfies the miscarriage of justice standard. Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011). Ochoa-Alapisco's sentence is neither unlawful nor illegal; her 48-month sentence was significantly below ...


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