United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR RECONSIDERATION, DENYING
MOTION TO CORRECT CLERICAL ERROR, DENYING MOTION FOR RELIEF
FROM JUDGMENT, DENYING MOTION FOR THE APPOINTMENT OF COUNSEL,
AND DENYING MOTION FOR AN EXTENSION
HONORABLE THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.
Robert James Ocampo is a federal prisoner proceeding pro
se. After a jury convicted him of seven counts in 2007,
Ocampo began a lengthy and tortuous appeals process. Most
recently, on October 13, 2015 Defendant Robert James Ocampo
filed a pro se motion for retroactive application of
the sentencing guidelines to his drug offense under 18 U.S.C.
§ 3582. On November 18, 2015 he filed a second motion
for retroactive application through counsel. See ECF
Nos. 573, 593. At a hearing held on October 18, 2016,
Ocampo's motions were granted and he was resentenced.
See ECF No. 614.
response, on October 24, 2016 Ocampo filed a pro se
ex parte motion for reconsideration, seeking a lower
sentence. See ECF No. 617. Because Ocampo already
received the benefit of a two-point reduction, and because
resentencing was within this Court's discretion,
Ocampo's motion for reconsideration will be denied. His
additional pending motions will also be addressed.
See ECF Nos. 592, 622, 624, 626.
November 20, 2007, a jury convicted Robert James Ocampo of
(1) conspiracy to possess with intent to distribute at least
five kilograms of cocaine and at least 100 kilograms of
marijuana in violation of 21 U.S.C. §§ 841, 846 and
860; (2) maintenance of a residence within 1, 000 feet of a
school for the purpose of distributing cocaine and marijuana
in violation of 21 U.S.C. §§ 856(a)(1) and 860; (3)
distribution of less than fifty kilograms of marijuana in
violation of 21 U.S.C. § 841(a)(1); (4) possession with
intent to distribute less than fifty kilograms of marijuana
in violation of 21 U.S.C. § 841(a)(1); (5) being a felon
in possession of a firearm in violation of 18 U.S.C. §
922(g)(1); (6) possession of a firearm by an unlawful user of
any controlled substance in violation of 18 U.S.C. §
922(g)(3); and (7) possession of a firearm during a drug
trafficking crime in violation of 18 U.S.C. § 924(c).
was sentenced to serve a total of 420 months of imprisonment.
Specifically, he was sentenced to 360 months in custody based
on Counts 1, 2, 5, and 6, to be served concurrently with a 60
month sentence based on Counts 3, and 4, to be served
consecutively with a 60 month sentence based on Count 7.
See ECF No. 223. His sentence was to be followed by
a total of five years of supervised release, and ordered to
pay a fine in the amount of $20, 000. Id. The Sixth
Circuit affirmed Ocampo's conviction and sentences.
United States v. Ocampo, 402 F.App'x 90 (6th
Cir. 2010). The United States Supreme Court denied
2012, Ocampo filed a motion to vacate sentence. Ocampo's
motion, as amended, raised seven grounds for relief. On
January 28, 2013, upon the recommendation of a magistrate
judge and over the parties' objections, Ocampo's
motion to vacate sentence was granted in part and denied in
part, and he was denied a certificate of appealability. ECF
No. 459. Judgment was entered in January 2013. ECF No. 460.
the Court's judgment partially granted Ocampo's
motion, it resulted in the vacation of his conviction for
Count 6 (possession of a firearm by an unlawful user of any
controlled substance). An amended judgment of conviction and
sentence reflecting the change was entered, but it did not
affect his overall sentence of imprisonment. ECF No. 461. The
Sixth Circuit denied a certificate of appealability.
Ocampo v. United States, Nos. 13-1196/1278/1353 (6th
Cir. Sept. 6, 2013) (unpublished). On October 22, 2013, the
Sixth Circuit then denied Ocampo's motion for
authorization to file a second or successive habeas petition
under 28 U.S.C. §2255. ECF No. 497.
January 2014, Ocampo filed another motion to vacate sentence,
raising two grounds for relief. ECF No. 502. The Court
determined that Ocampo's motion was a second or
successive petition, and transferred it to the Sixth Circuit
because Ocampo had not obtained prior authorization from the
Sixth Circuit to proceed. ECF No. 507. The Sixth Circuit
again denied authorization to file a second or successive
motion to vacate sentence. In re Ocampo, No. 14-1144
(6th Cir. Nov. 3, 2014) (unpublished). Ocampo then filed
numerous motions for relief from judgment, all of which have
been denied. Ocampo also filed numerous motions challenging
alleged errors in his presentence report ("PSR), which
were denied. See ECF No. 575.
October 13, 2015 Defendant Ocampo filed a pro se
motion for retroactive application of the sentencing
guidelines to his drug offense under 18 U.S.C. § 3582.
On November 18, 2015 Attorney Joan Morgan from the federal
defender's office entered an appearance on Ocampo's
behalf. See ECF No. 573. Attorney Morgan then filed
a second motion for retroactive application pursuant to
§ 3582. See ECF No. 593. While the Government
conceded that Ocampo was eligible for resentencing, it argued
that the Court should exercise its discretion to deny
resentencing. See ECF No. 594. A motion hearing was
accordingly scheduled. See ECF No. 599.
hearing, held on October 18, 2016 the Court granted the
motions for retroactive application, and reduced Ocampo's
360 month sentence as based on Counts 1, 2, and 5 of the
fourth superseding indictment to 340 months. See ECF
No. 614. This effectively reduced Ocampo's overall
sentence to 400 months.
with this reduction, on October 24, 2016 Ocampo filed a
motion for reconsideration. See ECF No. 617. Through
that motion, Ocampo argues that he should be provided with
"the full benefit of the 2 point reduction sought
...." Id. He further argues that the Government
mischaracterized his criminal history, his level of remorse,
and his ongoing litigation. Id. In support of the
motion Ocampo has attached an affidavit in which he sets
forth numerous trial issues relating to the alleged
ineffectiveness of his trial counsel, issues with plea
negotiations, and objections to and alleged errors in his PSR
argument that he was not provided with the full benefit of
the two-point reduction under § 3582(c)(2) is without
merit. Ocampo's motions for retroactive application were
granted, and his sentencing guidelines were recalculated in
accordance with the retroactive application of 28 U.S.C.
§ 994(u) and U.S.S.G. § 1B1.10. At the time of his
original sentence, his guideline range for his conviction on
Counts 1, 2, 4, and 5 was 360 months to life imprisonment,
with a 15 year mandatory minimum sentence applicable to Count
5. As a result of the two-point reduction, his guideline
range as to Counts 1, 2, 3, and ...