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United States v. Ibarra-Diaz

United States District Court, D. Kansas

February 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS IBARRA-DIAZ, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         This matter is before the court on defendant Jesus Ibarra-Diaz's Motion to Vacate Sentence under 28 U.S.C. § 2255 (Dkt. 95), as well as defendant's motion to stay pending appeal (Dkt. 98). For the reasons explained below, the record conclusively shows that defendant is not entitled to relief on his § 2255 motion. Accordingly, the motion is denied without a hearing. Defendant's motion for a stay is likewise denied.

         I. Background.

         Defendant was one of three individuals charged with possession with intent to distribute 50 grams or more of a mixture containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii), and 18 U.S.C. § 2. Dkt. 19. The two other individuals pled guilty; defendant proceeded to trial and was convicted by a jury. Dkt. 54. Shortly thereafter, defendant filed a pro se motion for new trial alleging that his appointed counsel, Assistant Federal Public Defender Steven K. Gradert, had provided ineffective representation. The trial judge, the Hon. Monti L. Belot, found the allegations to be without merit, but in view of defendant's dissatisfaction, he appointed a different attorney to represent defendant at sentencing. Dkts. 59, 60. Judge Belot subsequently sentenced defendant to 188 months imprisonment, to be followed by four years of supervised release. Dkt. 72. Defendant filed a direct appeal. While the appeal was pending, Judge Belot granted a motion to reduce the sentence to 151 months based on a retroactive change in the sentencing guidelines. Dkt. 91. The Tenth Circuit subsequently affirmed the district court's judgment and sentence. Dkt. 94.

         The evidence presented at trial was as follows. See United States v. Ibarra-Diaz, 805 F.3d 908, 914-15 (10th Cir. 2015) (setting forth summary of evidence). An undercover detective with the Wichita Police Department received information from a confidential informant (CI) that defendant had several pounds of methamphetamine to sell. The officer provided the CI with his cell phone number and told him to set up a buy of a pound of methamphetamine from the defendant for $18, 000. On January 8, 2013, the officer received a phone call from defendant's girlfriend (and co-defendant) Ana Valeriano-Trejo, who asked him if he wanted to meet up, and whether he wanted to talk to “him” first or just “be ready.” The officer, who could hear a male voice in the background saying “see if he wants to talk first, ” replied, “Yeah, I want him to be ready.” They agreed to meet at a shopping mall in thirty minutes. Valeria-Trejo indicated that “he” would be with her and they would be driving a Chevrolet Malibu.

         Officers set up surveillance and the detective, who was wearing a body wire to record the transaction, waited in a parked car at the mall. About 45 minutes later, a blue Chevrolet Malibu arrived and parked next to the officer's vehicle. Defendant was driving; he was accompanied by Valeriano-Trejo and an eight month-old baby. The officer got into the back seat of the Malibu. After Valeriano-Trejo engaged in small talk with the officer, she asked the defendant, “Where is Ricardo?” Defendant told her, “In a little bit he will bring it, ” and then instructed her to “call him to come over here.” Valeriano-Trejo told the officer that Ricardo was “just our friend.”[1]

         At that point, a brown SUV arrived and parked on the other side of the detective's car. The driver, Ricardo Estrada, got out and spoke with the defendant through the open driver's side window of the Malibu. The officer couldn't fully hear what was said, but his body wire picked up the defendant telling Estrada, “Hey man, get it out and bring it in … get it and bring it in.” Estrada stayed put, however, and began staring at the officer. The detective heard Estrada tell the defendant that he (the detective) was a police officer. Although the officer did not initially recognize Estrada, he later remembered he had previously tried to talk him into becoming a CI. Defendant told the detective to “go up to the car, ” apparently referring to the SUV, and the officer got out of the Malibu. He went to Estrada and confronted him about his statement that he was a cop, at which point defendant told Estrada he was “going over there” and began to drive away. Officers stopped the Malibu.

         The detective arrested Estrada, and a search of the SUV turned up a plastic Walmart bag containing just under a pound of a methamphetamine mixture. Estrada told the detective there was an additional pound of methamphetamine at a residence he shared with defendant and defendant's girlfriend. In a subsequent interview, defendant admitted that he resided at the 46th Street house identified by Estrada, although he said he didn't own it. Officers confirmed that one of the keys from the key ring used by defendant to drive the Malibu opened the back door of the 46th Street residence.

         Officers obtained a search warrant for the house and found another plastic Walmart bag containing 432 grams of a methamphetamine mixture hidden in a bucket of tile adhesive in a utility area near the kitchen. They found Saran Wrap, like that used to wrap the methamphetamine, in a trash can. They also found documents with defendant's name and picture on them. In a bedroom they found men's and women's clothing and a diaper bag containing $1440.

         Laboratory tests revealed that the bag retrieved from the SUV contained 447.8 grams of a substance that was 72% pure methamphetamine (i.e., 322.41 grams of actual methamphetamine). The bag from the house contained 432.1 grams of a substance that was 79% pure methamphetamine (341.35 grams of actual methamphetamine).

         The defense cross-examined the government's witnesses at trial, but the defendant did not testify and the defense presented no evidence of its own. The jury was instructed it could find the defendant guilty if the government showed beyond a reasonable doubt that on or about the date alleged, the defendant knowingly and intentionally possessed more than 50 grams of a mixture containing a detectable amount of methamphetamine, or if he knowingly aided and abetted another person in doing so. At sentencing, the trial judge found that defendant was responsible for 663.76 grams of actual methamphetamine, the sum of actual methamphetamine from both Walmart bags. The initial 188-month sentence was at the low end of the applicable guideline range (188 to 235 months, based on an offense level of 36 and a Criminal History Category of I).

         II. Motion to vacate sentence - § 2255.

         Defendant's motion to vacate sentence alleges that his trial attorney provided ineffective representation in three respects. First, he alleges the attorney unreasonably failed to object to the duplicitous nature of the indictment, which (he contends) allowed him to be convicted on either of two separate offenses - i.e., possession of the methamphetamine in the SUV or possession of methamphetamine in the house. Dkt. 95 at 9. Second, he contends counsel should have raised the “issue in which [defendant] was classified as a principal in the present case.” Id. at 11. Third, he contends counsel unreasonably failed to object to testimony of the detective that was “irrelevant, inflammatory, and unfairly prejudicial.” Id. at 11.

         III. ...


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