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United States v. Terrazas

United States District Court, D. Kansas

April 16, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
ERIK A. TERRAZAS, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         Erik Terrazas pleaded guilty to possessing a stolen firearm, and this Court sentenced him to 60 months in prison for that crime. This matter comes before the Court on Terrazas' Motion collaterally attacking that sentence. For the reasons explained below, Terrazas' Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 by a Person in Federal Custody (Doc. 40) is denied. Because review of Terrazas' Motion and the files and record of the case conclusively show that he is not entitled to relief under § 2255, the Court denies the Motion without an evidentiary hearing.

         I. Factual and Procedural Background

         Erik Terrazas is serving a 60-month sentence in federal prison for possession of a stolen firearm. The facts surrounding Terrazas' judgment of conviction are as follows. In July 2016, Detective Chad Graham of the Sedgwick County Sheriff's Office received a tip regarding the whereabouts of some recently stolen property. The stolen property-a four-wheel vehicle and a tool box-was purported to be stored in the garage of a Wichita, Kansas residence. Graham contacted the residence's owner, who informed the detective that the residence was being rented to his ex-daughter in law. The owner agreed to accompany Graham to the residence to inquire into the stolen property. When the pair arrived at the residence, they found three individuals inside the home, including Terrazas who was living in the residence's basement at the time. Terrazas had an active warrant for his arrest in Sedgwick County for a traffic violation and was taken into custody.

         Graham acquired written consent from the residence's occupant to search the garage, and the search revealed the stolen property. Law enforcement then used that information to obtain a warrant to search the entire residence. During the search of the home, officers found approximately 67 grams of methamphetamine in a bag that was identified as belonging to Terrazas; officers also found several stolen firearms.

         On September 13, 2016, a grand jury indicted Terrazas on five counts relating to possession of methamphetamine with intent to distribute, possession of a stolen firearm, and being a felon in possession of a firearm. Terrazas entered into a plea agreement in which he agreed to plead guilty to one count of possession of a stolen firearm in violation of 18 U.S.C. § 922(j). In exchange for Terrazas' guilty plea, the Government agreed to dismiss the remaining counts, to not file any additional charges, to recommend a sentence on the low end of the Federal Guidelines range, and to recommend a reduction of Terrazas' sentence because he acccepted responsibility for his crime.

         The plea agreement also stated that Terrazas understood that his sentence would be determined solely by the Court, that he faced a maximum prison sentence of ten years, and that the Government made no promises or representations as to what sentence he would receive. On February 28, 2017, Terrazas entered his plea of guilty with the Court. During this hearing, the Court addressed these details with Terrazas:

THE COURT: “I'm required to advise you that, in fact, the law provides that the penalty for being found guilty of this offense is a sentence of up to ten years in prison, a fine of up to $250, 000, you could receive up to three years of supervised release, and you'd be required to pay a hundred dollar mandatory special assessment. You understand that?”
THE DEFENDANT: “I do, yes, sir.”

         The plea agreement also included a provision limiting Terrazas' right to appeal or collaterally attack his eventual sentence. Paragraph 10 of the plea agreement stated as follows:

The defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, his conviction, or the components of the sentence to be imposed herein, including the length and conditions of supervised release, as well as any sentence imposed upon a revocation of supervised release. The defendant is aware that 18 U.S.C. § 3742 affords him the right to appeal the conviction and sentence imposed. The defendant also waives any right to challenge his sentence, or the manner in which it was determined, or otherwise attempt to modify or change his sentence, in any collateral attack, including, but not limited to, a motion brought under 28 U.S.C. § 2255 (except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)), or a motion brought under Federal Rule of Civil Procedure 60(b). In other words, the defendant waives the right to appeal the sentence imposed in this case, except to the extent, if any, the Court departs upwards from the sentencing Guideline range that the Court determines to be applicable. However, if the United States exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), the defendant is released from this waiver and may appeal the sentence received, as authorized by 18 U.S.C. § 3742(a). (Emphasis added).
The Court addressed the waiver provision with Terrazas at the February 28 hearing.
THE COURT: “All right. Let's go to paragraph 10, which explains that the law gives you a variety of rights to appeal in cases like this. [] You can appeal your prosecution of this case or your conviction of it. You can appeal the sentence you receive or how that sentence was calculated. You can appeal any terms and conditions of your supervised release, as well as any violation of those terms and conditions you might later be found to have committed. You can even, after this case is over, bring a collateral attack against what we did here by filing a new motion or a new case in which you charge that we didn't properly follow the law or the rules in this case and that, therefore, you shouldn't be held to any judgment or sentence issued against you in this case. But in paragraph 10, you're pretty much waiving all of those appeal rights. By and large, unless I were to give you a sentence above the top end of the guideline or unless the United States were to file its own appeal, other than in those cases you're otherwise pretty much waiving any appeal rights you would otherwise have. Do you understand that, sir?”
THE DEFENDANT: “Yes, sir.”
THE COURT: “And are you agreeing to do that?”
THE DEFENDANT: “I am, yes, sir.”

         In the plea agreement Terrazas also swore that he acknowledged “that he is entering into this Plea Agreement and is pleading guilty because he is guilty.” He further acknowledged “that he is entering his guilty plea freely, voluntarily, and knowingly.” At the February 28 hearing, the Court discussed this matter with Terrazas:

THE COURT: “Finally, paragraph 15, the last paragraph in this plea agreement, says that you acknowledge that you're entering into this plea agreement and you're pleading guilty because you are guilty, and that you're doing that freely and voluntarily. Is that a correct statement, sir?”
THE DEFENDANT: “Yes, sir.”
THE COURT: “Other than the promises made to you in this plea agreement which I've already discussed, has anyone made any other promises to you to persuade you to plead guilty?”
THE DEFENDANT: “No, sir.”
THE COURT: “Has anyone made any threats against you to make you enter this plea?”
THE DEFENDANT: “No, sir.”
THE COURT: “Has anyone used or tried to use any physical force or violence against you to make you enter this plea?”
THE DEFENDANT: “No, sir.”

         On May 22, 2017, the Court held Terrazas' sentencing hearing. Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report, which presented Terrazas at an Offense Level 21 and Criminal History Category IV, with an advisory guidelines range of 57-71 months. The Court sentenced Terrazas to a ...


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