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United States v. Molina

United States District Court, Tenth Circuit

December 13, 2013

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ADAN MOLINA, Defendant/Petitioner.



This matter is before the Court on Petitioner Adan Molina’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. 438). In his motion, Petitioner seeks relief on grounds that he was denied effective assistance of counsel with respect to his guilty plea and that the Government breached the Plea Agreement. The Government has responded (Doc. 442). After a careful review of the record and the arguments presented, the Court denies Petitioner’s motion without further evidentiary hearing.

I. Factual and Procedural Background

On April 15, 2009, Petitioner was indicted on 49 counts of methamphetamine trafficking offenses along with nine other defendants; a Superseding Indictment was filed on April 7, 2010, and contained 63 counts against seven defendants. In Count One, Petitioner was charged with conspiracy to possess with intent to distribute 500 grams or more of methamphetamine; the Superseding Indictment also included multiple counts of using a communication facility in committing and facilitating the conspiracy as well as distribution and possession of methamphetamine, conducting a financial transaction affecting interstate commerce, attempting to travel from Kansas to Arizona with the intent to promote, manage, establish and carry on the conspiracy, distribution of methamphetamine, and possession of firearms by illegal aliens.[1]Petitioner was represented by Mark L. Bennett, Jr. during pre-trial, plea, and sentencing proceedings.

On November 1, 2010, a jury trial commenced against Petitioner and his remaining co-defendant, Alfonso Rubio-Ayala.[2] On November 4, 2010, after the Government had presented two days of evidence and testimony, Petitioner entered a guilty plea to Count One of the Superseding Indictment charging him with conspiracy to possess with the intent to distribute and dispense methamphetamine, in violation of 21 U.S.C. § 846.[3]

As part of his plea, Petitioner admitted that he engaged in the following drug trafficking activity:

Between June 15, 2008, and June 17, 2009, Molina participated in an organization that distributed methamphetamine from Arizona, to Great Bend, Kansas, Topeka, Kansas and Kansas City, Kansas. The amounts of methamphetamine distributed during the course of this conspiracy exceeded 500 grams. Indeed, at the conclusion of this investigation, lawful search warrants were executed at the co-conspirator’ respective residences and at stash houses associated with this organization, based in part on the aforementioned affidavit. At that time, pursuant to said lawful search warrants, D.E.A. seized approximately $694, 000 in U.S. Currency, numerous firearms, several vehicles, and approximately 10 pounds of methamphetamine.[4]

Petitioner also waived his right “to appeal or collaterally attack any matter in connection with this prosecution, the defendant’s conviction, or the components of the sentence to be imposed, ” except as limited by United States v. Cockerham.[5] During the change of plea hearing, Petitioner acknowledged that his conviction on this charge could subject him to a sentence of not less than ten years nor more than imprisonment for life.[6] In the Plea Agreement, Petitioner represented that he “understands that the maximum sentence which may be imposed as to Count 1 of the Superseding Indictment to which the defendant has agreed to plead guilty is not less than ten (10) years nor more than life imprisonment . . . .”[7] At the plea hearing, the prosecutor advised Petitioner of this potential sentence in open court, and Petitioner indicated that he understood.[8] After engaging in a Rule 11 plea colloquy with Petitioner, this Court accepted his guilty plea.[9]

In calculating Petitioner’s total offense level, the Presentence Investigation Report (“PSR”) found that his base offense level was 38, pursuant to U.S.S.G. § 2D1.1(c)(1), as Petitioner was held accountable for over 1.5 kilograms of methamphetamine; added two levels under § 2D1.1(b)(1) because Petitioner possessed a firearm during the conspiracy; added two levels under § 2D1.1(b)(5)(A) because the offense involved importation of methamphetamine from Mexico; and added four levels under § 3B1.1(a) because Petitioner was an organizer or leader of the criminal activity.[10] These calculations yielded a total offense level of 43, [11] which combined with Petitioner’s Criminal History Category of I, resulted in an advisory Guidelines sentencing range of life imprisonment.[12]

Petitioner lodged two objections to the calculations in the PSR that are relevant to the instant motion: the two-level enhancement for importation of methamphetamine and the four-level enhancement for leader or organizer of the conspiracy, on the grounds that the Plea Agreement prohibited the Government from advocating for either of these enhancements.[13]Petitioner based his arguments on the fact that, in negotiating the plea, the parties struck language in the factual basis set forth in paragraph two of the Plea Agreement, referencing both Petitioner’s leadership role and the organization’s importation of the methamphetamine from Mexico. Specifically, the parties changed “Molina led an organization that distributed methamphetamine from Mexico, to Arizona . . .” to “Molina participated in an organization that distributed methamphetamine from Arizona . . . .”[14] The parties also struck the entirety of paragraph three of the Plea Agreement, in which the parties agreed that the Sentencing Guidelines should be applied by the Court:

3. Application of the Sentencing Guidelines

The parties request that the United States Sentencing Guidelines (Guidelines) be applied by the Court to calculate the applicable sentence in this case and that a sentence consistent with the Guidelines be imposed by the Court. The defendant further waives any right to have facts that determine the offense level under the Guidelines alleged in an indictment and found by a jury beyond a reasonable doubt; agrees that facts that determine the offense level will be found by the Court at sentencing by a preponderance of the evidence and agrees that the Court may consider any reliable evidence, including hearsay; and the defendant agrees to waive all constitutional challenges to the validity of the Guidelines. The parties further agree to request a sentence within the guideline range determined to be appropriate by the U.S. Probation Department. In other words, the United States will not request a sentence in excess of the high end of the guideline range and the defendant will not request a sentence below the low end of the guideline range. The parties understand this agreement binds the parties only and does not bind the Court.[15]

At the sentencing hearing, the Government presented testimony of Agent Douglas Garman, who testified about statement made by Petitioner and co-conspirators to law enforcement; items seized during the search at Petitioner’s residence, including $692, 000 in cash, firearms, and ten pounds of methamphetamine; and wiretap conversations between Petitioner and co-conspirators.[16] The Government argued that defense counsel had misconstrued the import of the changes to the Plea Agreement:

During the plea negotiations, and the reference to the factual basis, Mr. Bennett represented to me that Mr. Molina did not want to admit that he was the leader and that he imported the methamphetamine from Mexico. And I indicated, well, we’ll mark that out and we’ll fight over it at sentencing. And we in fact are. And for him to suggest that in any way, shape, or form that it was represented to him by myself or anyone else that we would not advocate that ...

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