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United States v. Nino-Cruz

United States District Court, D. Kansas

November 21, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ALFREDO NINO-CRUZ, Defendant/Petitioner.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         Alfredo Nino-Cruz pleaded guilty to two counts of aggravated identity theft, for which this Court sentenced him to a prison term of 48 months. This matter comes before the Court on Nino-Cruz's Motion collaterally attacking that sentence. For the reasons explained below, Nino-Cruz's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody (Doc. 31) is denied. Because review of Nino-Cruz's 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

         On July 17, 2018, a federal grand jury returned a superseding indictment against Alfredo Nino-Cruz. The Superseding Indictment charged Nino-Cruz with the following crimes: (Count 1) aggravated re-entry into the United States, (Counts 2, 4, and 6) bank fraud, (Counts 3, 5, and 7) aggravated identity theft, (Count 8) possession of a firearm by a convicted felon, (Count 9) possession of ammunition by a convicted felon, and (Count 10) possession of a firearm by an illegal alien.

         The Government and Nino-Cruz entered into a plea agreement. Nino-Cruz agreed to plead guilty to two counts of aggravated identity theft (Counts 3 and 5), and the Government agreed to dismiss the eight remaining counts. As a factual predicate for his guilty plea, Nino-Cruz admitted that on June 8 and August 22, 2016, he opened checking accounts in the name of Israel Delgado at Wells Fargo Bank and Intrust Bank in Wichita, Kansas. Nino-Cruz knew that Israel Delgado was a real person, and he used fraudulent identification documents to open these accounts with the intent of obtaining money from the bank. In paragraph six of the plea agreement, both parties agreed “to request two (2) consecutive sentences of two (2) years each for a controlling sentence of four (4) years.”[1]

         On October 9, 2018, Nino-Cruz appeared before the Court to enter his guilty plea. During this hearing, the Court confirmed with Nino-Cruz that he had discussed the plea agreement with his attorney, that his attorney answered any questions he had about the plea agreement, and that he understood the plea agreement.[2] The Court also told Nino-Cruz that by pleading to two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A, “[he] would be subject to a mandatory two-year sentence in prison on each of those counts, and those two counts would run consecutive[ly] . . . . So essentially this would call for a mandatory four-year sentence in prison.”[3] Nino-Cruz stated that he understood that he would receive a mandatory four-year prison term.[4]Later, the Court repeated that, pursuant to the plea agreement, the Government agreed to request that the Court impose the sentence that, by law, the Court is required to give: “two years plus two years for four years.”[5]

         During the October 9 hearing, the Court advised Nino-Cruz not to plead guilty if his decision was based on promises he received other than what was discussed in the plea agreement. And the Court and Nino-Cruz (via an interpreter) discussed this matter further:

The Court: “Other than the promises made to you in this plea agreement which I've gone over with you, has anybody made any other promises to you to persuade you to plead guilty?”
Nino-Cruz: “No.”
The Court: “Has anyone made any threats against you to make you enter this plea?”
Nino-Cruz: “No.”
The Court: “Has anyone used or tried to use any physical force or violence against you to make you enter this [plea]?”
Nino-Cruz: “No.”

         After this discussion, Nino-Cruz pleaded guilty to Counts 3 and 5. On January 3, 2019, the Court accepted the recommendation of the parties and sentenced Nino-Cruz to 48 months in prison to be followed by one year of supervised release.[6]

         On April 24, 2019, Nino-Cruz filed a Motion under 28 U.S.C. § 2255, seeking to modify his 48-month sentence to 24 months. The Motion, which is handwritten and at times difficult to read, raises three arguments in support of Nino-Cruz's request to modify his sentence. First, Nino-Cruz argues that his counsel promised him at various times that he would receive a 24-month sentence. Second, Nino-Cruz states that he wanted to file a direct appeal of his sentence but that his counsel never filed it. Third, Nino-Cruz argues that federal agents requested that his wife testify at his sentencing; when she refused, Nino-Cruz states that these agents “beat up” his wife and deported her to Mexico. In addition to reducing his sentence to 24 months, Nino-Cruz asks the Court to investigate the federal agents and initiate a lawsuit against them.

         II. Legal Standard

         Under 28 U.S.C. § 2255(a):

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts:

[T]he judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . . If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, ...

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