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United States v. Moreno

United States District Court, E.D. Michigan, Southern Division

June 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RODOLFO MORENO, Defendant.

          ORDER DENYING PETITION FOR HABEAS RELIEF [ECF No. 58]

          Victoria A. Roberts United States District Judge

         I. INTRODUCTION

         Rodolfo Moreno (“Moreno”) moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

         Moreno makes two arguments. First, he argues his sentence violates the due process clause of the Fifth Amendment because the Presentence Investigation Report (“PSIR”) writer made two errors, both of which were relied on by the Court and served as a basis for his sentence in 2016 as a career offender.

         Second, Moreno argues his appellate counsel was ineffective in violation of the Sixth Amendment because he failed to challenge the criminal history points assessed to Moreno's state court convictions - all of which led to the determination that Moreno had a state court conviction that established him as a career offender.

         For the reasons that follow, the Court DENIES Moreno's petition for habeas relief.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Moreno has an extensive history of drug crimes which resulted in his career offender status. Moreno pled guilty in state court to three separate offenses but received a single sentence for the delivery and manufacture of marijuana and felony firearm in 2006. Moreno also pled guilty to conspiracy to distribute controlled substances in federal court before the Honorable David Lawson in 2008. Judge Lawson erroneously classified Moreno as a career offender and sentenced him as such.

         In 2016, Moreno pled guilty to conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. § 846 and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). The Court sentenced Moreno to prison for 151 months, and four years of supervised release. In crafting that sentence, the Court acknowledged Moreno's extensive criminal history and career offender status. By the time of his 2016 convictions, the district court correctly classified Moreno as a career offender based on his state court convictions and his federal conviction in 2008.

         Moreno filed a timely appeal from the judgment of conviction. Moreno's appeal renewed his objection to the career offender classification and - for the first time, challenged the constitutionality of the career offender guidelines. United States v. Moreno, 685 Fed.Appx. 474, 475 (6th Cir. 2017).

         Moreno specifically argued that it was error for the district court to rely on the 2008 career offender classification at his 2016 sentencing because he was not a career offender in 2008. Moreno, 685 Fed.Appx. at 475. The Sixth Circuit agreed with Moreno that he was incorrectly classified as a career offender in 2008; by that time, he only had one qualifying offense. Id. at 476. But the appellate court also said the district court correctly calculated Moreno's guideline range because he did qualify as a career offender by the time of the 2016 appeal; his counsel even conceded the point. Moreno, 685 Fed.Appx. at 476.

         The Sixth Circuit also ruled that to the extent the district court relied on the erroneous career offender classification in crafting Moreno's sentence, the error was harmless. Id. Importantly, the appellate court ruled that Moreno's 2008 designation as a career offender was not the basis for this 2016 sentence. Id. The Sixth Circuit found “the district court's thorough discussion of [Moreno's] criminal history and the circumstances of this case make it clear that [Moreno's] commission of a drug offense while under sentence for a prior drug offense was decisive in crafting his [2016] sentence.” Id.

         The Sixth Circuit also denied Moreno's constitutional challenge to the career offender guidelines. The Court found that “sentencing guidelines are advisory rather than mandatory.” Moreno, 685 Fed.Appx. at 476 (citing United States v. Booker, 543 U.S. 220, 234 (2005)). According to the Sixth Circuit, district courts have substantial discretion in matters of sentencing and may depart from sentencing guidelines. Moreno, 685 Fed.Appx. at 476.

         The Sixth Circuit denied Moreno's appeal and affirmed the judgment. Moreno filed a petition for certiorari in the United States Supreme Court. It was denied. Moreno ...


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