United States District Court, D. Minnesota
Benjamin Bejar, Esq., Assistant United States Attorney,
United States Attorney's Office, Minneapolis, MN, on
behalf of Plaintiff.
Ochoa-Alapisco, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
September 2, 2016, Defendant Aide Ochoa-Alapisco
(“Ochoa-Alapisco”) filed a Motion to Vacate under
28 U.S.C. § 2255 [Criminal Docket No.
325]. 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.
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.
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. ¶
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.
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].
now moves for a sentence reduction under the newly amended
U.S.S.G. § 3B1.2. 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
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)).
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