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Opinion
govinfo:USCOURTS-okwd-5_24-cv-01081-0
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
-vs-
URIEL OCHOA-SANTOS,
Defendant.
)
)
)
)
) Case Nos. CR-22-0049-001-F
) CIV-24-1081-F
)
)
)
ORDER
Defendant, Uriel Ochoa-Santos, a federal inmate proceeding pro se , has
moved under 28 U.S.C. § 2255 to va cate, set aside, or correct his federal sentence.
Doc. no. 163. 1 Plaintiff, United States of Amer ica, has responded to the motion.
Doc. no. 171. Although defendant was allo wed to file a reply to the government’s
response, no reply has been filed within the time specified by the court. The matter
is at issue.
I.
Procedural History
On February 15, 2022, defendant wa s charged by indictment with drug
offenses.
Count 1 of the indictment charged th at, on or about January 19, 2022, in the
Western District of Oklahoma and elsewh ere, defendant and two co-defendants,
Fletcher Martinez Henderson and Rafael Navarro, Jr., knowingly and intentionally
conspired, combined, confed erated, and agreed with ea ch other and others, both
1 Because defendant is proceeding pro se, the court construes his filings liberally, but it does not
act as his advocate. See, Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008).
Case 5:24-cv-01081-F Document 2 Filed 01/27/25 Page 1 of 14
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known and unknown to the Grand Jury, to inte rdependently possess with intent to
distribute and to distribute 500 grams or more of a mixture or substance containing
a detectable amount of metham phetamine, its salts, isomers, or salts of its isomers,
a Schedule II controlled substance, in vi olation of 21 U.S.C. § 841(a)(1), all in
violation of 21 U.S.C. § 846, the pena lty for which is found at 21 U.S.C.
§ 841(b)(1)(A). See, doc. no. 57, ECF pp. 1-2.
Count 2 of the indictment charged that , on or about January 19, 2022, in the
Western District of Oklahoma, defendant knowingly and inte ntionally possessed
with intent to distribute 500 grams or mo re of a mixture or substance containing a
detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, a
Schedule II controlled substance, all in violation of 21 U.S.C. § 841(a)(1), the
penalty for which is found at 21 U.S.C. § 841(b)(1)(A). See, doc. no. 57, ECF p. 2.
At all relevant times, defendant was represented by appointed counsel, Cesar
Armenta.
On September 22, 2022, a one-count Superseding Information was filed
charging defendant with knowingly and in tentionally possessing with intent to
distribute 50 grams or more of a mixture or substance containing a detectable amount
of methamphetamine, its salts, isomers, or salts of its isomers, a Schedule II
controlled substance, all in violation of 21 U.S.C. § 841(a)(1), the penalty for which
is found at 21 U.S.C. § 841(b)(1)(B). See, doc. no. 94.
Subsequently, on October 12, 2022, defendant, pursuant to a plea agreement,
pleaded guilty to the one-count Superseding Information. See, doc. no. 104. During
the plea hearing conducted by the Honorab le Chief Judge Timothy D. DeGiusti,
defendant admitted that on Ja nuary 19, 2022, he was “drivi ng a car that contained
approximately 68 pounds of a mixture containing a detectable amount of
methamphetamine[;]” he was “aware that that metham phetamine was in the car[;]”
and it was his “intent to distribute or participate in the distribution of that
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methamphetamine to others[.]” Doc. no. 171-2, ECF p. 13, ll. 19-25, ECF p. 14, ll.
1-4.
As part of the plea agreement, th e government and defe ndant agreed and
stipulated that “for the purposes of sentencing, the amount of a mixture or substance
containing a detectable amount of metham phetamine associated with Defendant’s
relevant conduct in this case is a least 15 kilograms but less than 45 kilograms of a
mixture or substance containing metham phetamine as described by U.S.S.G.
§ 2D1.1(c)(2).” Doc. no. 106, ECF p. 6, ¶ 10.2
In addition, as part of the plea agreement, defendant waived the right to appeal
his conviction and his sentence, with one exception not relevant to this case. He also
waived his right to collaterally challe nge under 28 U.S.C. § 2 255 his conviction or
his sentence, “except with respect to claims of ineffective assistance of counsel.”
Doc. no. 106, ECF p. 8, ¶¶ 12(a), 12(b), and 12(c).
During the plea hearing, Judge DeGiusti asked defendant if he understood that
as a result of the plea agreement, he was waiving the right to collaterally challenge
the sentence ultimately imposed by the court except under limited circumstances, to
which defendant responded affirm atively. Doc. no. 171-2, ECF p. 8, ll. 11-17. At
the request of Judge DeGiusti, the govern ment summarized th e terms of the plea
agreement, which included the above sti pulation and waiver of appeal, and the
defendant advised Judge DeGiusti that he agreed to the summary. Doc. no. 171-2,
ECF p. 12, ll. 4-11, ECF p. 13. Judge DeGiusti asked defendant whether any promise
had been made by anyone which caused him to plead guilty other than the promises
set forth in the plea agreement, and he responded, “No.” Doc. no. 171-2, ECF p. 13,
ll. 11-15.
2 “U.S.S.G” stands for United States Sentencing Guidelines.
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In addition to the plea agreement, defendant completed a petition to enter plea
of guilty. Defendant ac knowledged in that document that in calculating the range
of sentence under the advisory sentencing guidelines, the court would take into
account “all conduct, circumstances, and inju ries associated with [his] criminal
conduct, whether or not this conduct is formally charged by the government” and
the court would consider “all relevant conduct at the time of sentencing[.]” Doc. no.
105, ECF p. 7, ¶ 26. He also acknowledged that his “history of prior criminal
convictions will be used to compute [h is] Criminal History Category under the
Sentencing Guidelines” and that his “prior criminal history has a direct impact on
the calculation of the sentencing range unde r the advisory Sentencing Guidelines.”
Id. at ¶ 29.
During the plea hearing, Judge DeGius ti asked defendant if he signed the
petition to enter the plea of guilty, if he read the document or had it read to him
before he signed it and if he understood all the questions in the document. Defendant
responded affirmatively. Doc. no. 171-2, ECF p. 9, ll. 7-21. Judge DeGiusti also
asked defendant if he realized that if the court accepted his plea, the court may
impose the same punishment as if he had pleaded not guilty and had been convicted
by a jury, to which defendant responded affirmatively. Id . at ECF p. 9, ll. 22-25;
ECF p. 10, l. 1. Further, defendant responded affirm atively when asked by Judge
DeGiusti if he understood that the court woul d consider all relevant conduct at the
time of sentencing. ECF p. 171-2, ECF p. 10, l. 10; ECF p. 11, 1-3.
Thereafter, the Probation Office prepar ed a final presentence investigation
report which calculated defendant’s base level offense at 36 pursuant to U.S.S.G.
§ 2D1.1(a)(5), based upon a finding that defendant’s offense involved 68.6 pounds
(31.1 kilograms) of methamphetamine. The Probation Office then applied a two-
level enhancement pursuant to U.S.S. G. § 3C1.2 because defendant “recklessly
created a substantial risk of death or seri ous bodily injury to another person in the
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course of fleeing from a law enforcement o fficer,” resulting in an adjusted offense
level of 38. Doc. no. 133, ECF p. 6, ¶¶ 25-26. After applying a three-level
adjustment under U.S.S.G. § 3E1.1, the Pr obation Office calculated defendant’s
total offense level at 35. Id., ECF pp. 6-7, ¶¶ 28-30.
Based on his prior convictions, defendant received a criminal history score of
nine, establishing a criminal history category of IV. With a total offense level of 35
and a criminal history category of IV, defendant’s advisory guideline imprisonment
range was 235 months to 293 months. See, doc. no. 133, ECF p. 9, ¶¶ 36-37; ECF
p. 13, ¶ 62.
Prior to sentencing, defense counsel filed a 19-page sentencing memorandum,
requesting the court to “consider a sent ence substantially below the advisory
guideline range.” Doc. no. 143, ECF p. 18.
Defendant’s sentencing was held on October 17, 2023. See, doc. no. 159. At
the hearing, the court adopted the final presentence investigation report without
change. See, doc. no. 162, ECF p. 1, I (A). The court va ried downward from the
advisory guideline imprisonment range a nd sentenced defendant to a term of
imprisonment of 190 months. See, doc. no. 159. The court also imposed supervised
release of five years. Id. Judgment was entere d that same day. See, doc. no. 161.
The indictment originally filed against defendant was dismissed. See, doc. no. 160.
Defendant did not appeal of his conviction or sentence.
Defendant timely filed the instan t § 2255 motion. He alleges Mr. Armenta
rendered constitutionally ineffective assi stance of counsel during sentencing and
pretrial proceedings. In addition, defendant alleges that his 190-month sentence was
unreasonable, see, doc. no. 163, ECF p. 5 (Ground Two); his sentence, as imposed,
resulted in a violation of his constitutional rights, see, id., ECF p. 7 (Ground Three),
and the plea agreement and later acceptan ce of his guilty plea was “in violation of
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due process under the 6th and 14th amendment[s] of the Constitution,” see, id., ECF
p. 8 (Ground Four).
II.
Waived Claims
Initially, in its response, the government asserts that in the plea agreement,
defendant waived “all” claims except for claims of ineffective assistance of counsel.
Doc. no. 171, ECF p. 6. The court agrees.
As previously stated, defendant waived , as part of the plea agreement, the
right to collaterally challe nge under 28 U.S.C. § 2255 hi s conviction or sentence,
“except with respect to claims of ineffective assistance of counsel.” Doc. no. 106,
ECF p. 8, ¶ 12(c). Therefore, on its f ace, defendant’s plea agreement waived the
right to collaterally challenge his conviction or sentence with respect to all claims
other than claims of ineffective assistance of counsel.
For a waiver to be enforceable, three criteria must be satisfied: (1) defendant’s
challenge falls within the sc ope of the waiver provision; (2) defendant’s waiver of
collateral-challenge rights must have been knowing and voluntary; and (3)
enforcement of the waiver mu st not result in a fundamental miscarriage of justice.
See, United States v. Hahn, 359 F.3d 1315, 1325-27 (10 th Cir. 2004) (en banc) (per
curiam); United States v. Cockerham, 237 F.3d 1179, 1183 (10 th Cir. 2001)
(applying the Hahn analysis to collateral-attack proceedings).
Here, the court finds that all defenda nt’s claims other than claims of
ineffective assistance of counsel fall s quarely within the scope of the waiver
provision. The waiver provision specifically stated that defendant waived his right
to collaterally challenge under 28 U.S.C. § 2255 his conviction or sentence, “except
with respect to claims of ineffective assistance of counsel.” Doc. no. 106, ECF p. 8,
¶ 12(c).
Case 5:24-cv-01081-F Document 2 Filed 01/27/25 Page 6 of 14
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The court also finds that defendant’s acceptance of the terms of the waiver
was both knowing and voluntary. Just be fore the signature line of the plea
agreement, defendant specifically acknowledged that he had discussed the terms of
the plea agreement with his attorney and understood and accepted those terms.
Further, during the plea hearing, defendant acknowledged that he understood he was
specifically waiving his right to collaterally challenge his sentence. Doc. no. 171-2,
ECF p. 8, ll. 11-17.
Further, the court finds that the wa iver provision does not result in a
fundamental miscarriage of justice. A “mis carriage of justice” occurs only where:
(1) “the district court relied on an impermissible factor such as race;” (2) ineffective
assistance of counsel in connection with the negotiation of the waiver renders the
waiver invalid;” (3) “the sentence exce eds the statutory maximum;” or (4) “the
waiver is otherwise unlawful.” Hahn, 395 F.3d at 1327. There is no showing by
defendant or in the record of the existence of any of these factors.
Because the Hahn and Cockerham factors are met, the court concludes that
the collateral review waiver is enforceable as to all claims alleged by defendant other
than claims of ineffective assistance of counsel. Therefore, the court will only
consider the merits of defendant’s ineffective assistance of counsel claims.
III.
Ineffective Assistance of Counsel Claims
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court laid out
the framework for an ineffective assistance of counsel claim. Under it, defendant
must show (1) counsel’s performance wa s deficient, meani ng it “fell below an
objective standard of reasonableness,” id. at 687-88, and (2) the deficient
performance prejudiced the defendant’s de fense, meaning “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different,” id. at 694. “A reasonable probability is a probability
Case 5:24-cv-01081-F Document 2 Filed 01/27/25 Page 7 of 14
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sufficient to undermine confidence in the outcome.” Id. If the defendant fails to
make a sufficient showing at either step of the analysis, the court must deny the
alleged ineffective assistance of counsel claim. Id. at 697.
Defendant claims that de fense counsel was constitutionally ineffective by (1)
failing to raise issues of cooperation and prior convictions during the sentencing
phase (Ground One); (2) failing to raise th e sentencing disparity between him and
his co-defendants (Ground Two); (3) fa iling to contest the amount of drugs
determined in the final presentence i nvestigation report (Ground Three); and (4)
advising defendant to enter a guilty plea and advising him to accept the plea guilty
to prevent a higher senten ce than the guideline range to which defendant was
exposed (Ground Four).
A.
As to his first claim, the court finds that defendant has failed to establish that
defense counsel performed deficiently. First, the record reflects that defense counsel
did, in fact, raise the issue of defendant ’s cooperation in the 19-page sentencing
memorandum as well as at the sentencing hearing. Thus, defendant cannot establish
that defense counsel’s performance fell below an objective standard of
reasonableness. Second, while defense couns el did not object to the inclusion of
defendant’s prior convictions in determining his criminal history category, defense
counsel did not perform below an objective standard of reasonableness in not doing
so. Defendant has not challenged the valid ity of any of the prior convictions, and
any objections to using prior convictions in determining the criminal history
category would have been clearly rejected. See, U.S.S.G. § 4A1.1. Further, in the
petition to enter plea of guilty, defendant acknowledged his “history of prior criminal
convictions will be used to compute [h is] Criminal History Category under the
Sentencing Guidelines” and that his “prior criminal history has a direct impact on
the calculation of the sentencing range unde r the advisory Sentencing Guidelines.”
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Doc. no. 105, ECF p. 7, ¶ 29. Thus, defense counsel did not perform deficiently in
failing to raise an issue as to defendant’s prior convictions.
Even if the court were to find defens e counsel performed deficiently in failing
to raise the issues of cooperation or prior convictions, defendant cannot show
prejudice. He cannot show that his sentence would have been different.
To the extent defendant contends that defense counsel performed deficiently
by “guarantee[ing]” that his prior convicti ons would not be “accounted for if he
pleaded guilty,” see, doc. no. 163, ECF p. 4, the c ourt concludes that defendant
cannot show prejudice. As stated, when he executed the petition to enter plea of
guilty, he was made aware that his prior convictions would be used in computing the
criminal history category and his prior convictions would directly impact the
sentencing range. In addition, during the plea hearing, Judge DeGiusti specifically
asked defendant if any promises had be en made by anyone which caused him to
plead guilty other than the promises set fo rth in the plea agreement, and he stated,
“No.” Doc. no. 171-2, ECF p. 13, ll. 11-15. Defendant has not alleged that he would
not have pleaded guilty but would have gone to trial in light of defense counsel’s
“guarantee[],” but even if he did, a mere allegation that defendant would not have
pleaded guilty but would have gone to trial, but for defense counsel’s error, although
necessary, is ultimately insufficient to en titled him to relief. Miller v. Champion,
262 F.3d 1066, 1072 (10 th Cir. 2001). The court must look to the factual
circumstances surrounding the guilty plea to determine whethe r defendant would
have proceeded to trial rather than plead guilty. Id. By pleading guilty to the one-
count Superseding Indictment, defendant obtained the dismissal of Count 1 and
Count 2 of the indictment. Defendant faced a greater sent ence had he gone to trial
and been convicted on one or both counts of the indictment. It is highly unlikely,
based upon the government’s case, that a trial on those counts would have resulted
in an acquittal on either count. It is also —to put it mildly—unlikely that defendant
Case 5:24-cv-01081-F Document 2 Filed 01/27/25 Page 9 of 14
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would have received a light sentence had he gone to trial. The court therefore
concludes that defendant has not demonstrated that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
B.
With respect to the second claim, the court finds that defendant has failed to
establish defense counsel performed defici ently. The record reflects that defense
counsel raised the issue of Mr. Navarro’s 90-month sentence in the sentencing
memorandum and during the sentencing hear ing. At the time the sentencing
memorandum was filed in June of 2023, Mr . Martinez had not yet been sentenced.
Although defense counsel, in his statements during the sentencing hearing, referred
only to the 90-month sentence received by Mr. Navarro and asked for a similar
sentence for defendant, the court, as ac knowledged during the sentencing hearing,
was aware of both Mr. Navarro’s 90-mont h sentence as well as Mr. Martinez’s 30-
month sentence. Because the court was aware of both sentences and considered both
sentences in determining defendant’s se ntence, defense counsel did not perform
deficiently by not specifically mentioning Mr. Martinez’s 30-month sentence in
addition to Mr. Navarro’s 90-month sentence.
Even if the court were to find defens e counsel performed deficiently, the court
concludes that defendant cannot show prejudice. As stated, the court considered Mr.
Navarro and Mr. Martinez’s sentences when determining defendant’s sentence.
Defendant would have received the same sentence even if defense counsel had
specifically raised the sentencing disparity between defendant and the co-
defendants’ sentences. As indicated dur ing the sentencing hearing, defendant’s
circumstances were different than his co-d efendants. Indeed, the court commented
that Mr. Navarro was “a good example of exceptional acceptance of responsibility.”
Doc. no. 171, ECF p. 8, ll. 20-21.
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C.
With respect to the third claim, the court finds that defe ndant has failed to
establish defense counsel performed deficiently. Defendant’s base offense level was
36, not 38, as alleged by defendant. And the amount of methamphetamine the
Probation Office utilized to calculate defe ndant’s base offens e level was “68.6
pounds (31.1 kilograms) of methamphetamine.” Doc. no. 133, ECF p. 6, ¶ 21. That
amount was within the range that the gove rnment and defendant had agreed and
stipulated to in the plea agreement to be used for sentencing purposes, namely, “a
least 15 kilograms but less than 45 kilogram s of a mixture or substance containing
methamphetamine[.]” Doc. no. 106, ECF p. 6, ¶ 10. The Probation Office calculated
an adjusted offense level of 38 for defendant because the Probation Office applied a
two-level enhancement because defendant “r ecklessly created a substantial risk of
death or serious bodily injury to anothe r person in the course of fleeing from a law
enforcement officer.” Doc. no. 133, ECF p. 6, ¶ 25.
Although defendant contends that he only “accepted res ponsibility of (50)
grams of methamphetamine[,]” doc. no. 163, ECF p. 7, the Sentencing Guidelines
require that all relevant conduct be considered at sentencing. See, U.S.S.G. § 1B1.3.
“In particular, “[d]rug quantities asso ciated with illegal conduct for which a
defendant was not convicted are to be account ed for in sentencing, if they are part
of the same conduct for which the defenda nt was convicted.” United States v.
Mendez-Zamora, 296 F.3d 1013, 1020 (10th Cir. 2002). The petition to enter plea of
guilty advised defendant of this fact. Defendant also responded affirmatively when
asked by Judge DeGiusti at the plea hearing if he understood that the court would
consider all relevant conduct at the time of sentencing. As stated, the Probation
Office utilized 68.6 pounds or 31.1 kilogram s of methamphetamine in calculating
the base offense level of 36. Defense counsel was not deficient in failing to object
to that amount, when it was within the qua ntity of drugs the parties agreed and
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stipulated to in the plea agreement for sentencing purposes. Further, defendant
admitted during the plea hearing that approximately 68 pounds of a mixture
containing a detectable amount of methamphetamine was in the car he was driving
and that he intended to distribute, or participate in the distribution of, that
methamphetamine to others.
D.
Lastly, with respect to the fourth claim, the court finds that defendant has not
shown defense counsel performed deficiently . It is clear from the plea agreement
and the plea hearing that the agreement and guilty plea were entered knowingly and
voluntarily. Defendant received a much lower sentence by entering a guilty plea and
because of the strong advocacy of defense counsel.
Even if the court were to find defense counsel performed deficiently,
defendant cannot show prejudice. Defendant has not alleged that he would not have
pleaded guilty but would have gone to tria l in light of defense counsel’s “ill
advice[,]” Doc. no. 163, ECF p. 8, but even if he did, the mere allegation that he
would not have pleaded guilty but would have gone to trial, but for defense counsel’s
error, although necessary, is ultimately insufficient to entitled him to relief. Miller,
262 F.3d at 1072. As stated, the court mu st look to the f actual circumstances
surrounding the guilty plea to determine wh ether defendant would have proceeded
to trial rather than plead guilty. Id. By pleading guilty to the one-count Superseding
Indictment, defendant obtained the dism issal of Count 1 and Count 2 of the
indictment. Defendant faced a greater sentence had he gone to trial and been
convicted on one or both counts of the indict ment. As stated, it is highly unlikely,
based upon the government’s case, that a trial would have resulted in an acquittal on
either count. And as stated, it is—to put it mildly—unlikely that defendant would
have received a light senten ce had he gone to trial. Th e court therefore concludes
that defendant has not demonstrated that “t here is a reasonable probability that, but
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for counsel’s unprofessional errors, the re sult of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
E.
In sum and for the reasons stated, th e court concludes that under the plea
agreement, defendant waiv ed collateral challenge under 28 U.S.C. § 2255 of all
claims other than his claims of ineffectiv e assistance of counsel and as to each of
defendant’s claims of ineffective assistance of counsel, they fail on their merits.
IV.
Evidentiary Hearing
The court file and record conclusively show that defendant is not entitled to
relief under 28 U.S.C. § 2255. A heari ng is therefore not warranted. See, Sanders
v. United States, 373 U.S. 1, 21 (1963) (t he sentencing court has discretion to
ascertain whether the claim is substantial before granting a full evidentiary hearing
in a § 2255 matter).
V.
Certificate of Appealability
Under Rule 11(a) of the Rules G overning Section 2255 Proceedings for the
United States District Courts, the court must issue or deny a certificate of
appealability when it enters a final order adverse to the a pplicant. A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard,
the applicant must demonstrate that “reasonable jurists could debate whether (or, for
that matter, agree that) the [motion] should have been resolved in a different manner
or that the issues presented were adequa te to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
and citation omitted). When a § 2255 motion is also denied for procedural reasons,
the applicant must clear the added hurdle of showing “that jurists of reason would
Case 5:24-cv-01081-F Document 2 Filed 01/27/25 Page 13 of 14
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find it debatable whether the district court was correct in its procedural ruling.” Id.
Upon review, the court finds that defendan t cannot make such showing. The court
thus denies a certificate of appealability.
VI.
Conclusion
Accordingly, defendant Uriel Oc hoa-Santos’s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
(doc. no. 163), is DENIED. A certificate of appealability is also DENIED.
Judgment shall be entered forthwith.
IT IS SO ORDERED this 27th day of January, 2025.
22-0049p028 (Ochoa-Santos).docx
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