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CARRILLO v. U.S.

August 2, 2005.

ANSELMO CARRILLO, Movant,
v.
UNITED STATES of AMERICA, Respondent.



The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

Before the court is Anselmo Carrillo's Motion to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. Movant, Anselmo Carrillo ("Carrillo"), challenges his sentence for possession with intent to distribute cocaine, and conspiracy with intent to distribute cocaine. For the reasons stated below, the motion is denied.

I. BACKGROUND*fn1

  A. Facts

  In August 1998, Ross Braatsch ("Braatsch"), the owner of an electronics store, agreed to provide information to Drug Enforcement Administration ("DEA") agents regarding certain customers whom Braatsch suspected were involved in drug trafficking. Braatsch's store sold and installed hidden compartments in cars, called "traps," which could only be opened by remote control. These traps are commonly used for legitimate purposes, such as the storage of car stereo components. However, Braatsch informed DEA agents that one of his customers, Tavo Perez ("Perez") had these traps installed in twelve different cars, and Braatsch suspected that Perez was using the traps to transport drugs. Braatsch identified Carrillo as one of the individuals who came to pick up Perez's cars after the traps had been installed. Braatsch also indicated to the DEA agents that he had shown Carrillo how to operate the traps.

  In December of 1998, Perez brought two of his cars, including a red Mercury Sable, into Braatsch's store for repairs. While the Sable was being repaired, a DEA agent confirmed that it contained a trap and recorded the license plate number. The DEA then began conducting surveillance of Perez's residence. On January 27, 1999, the DEA observed the red Mercury Sable at Number 20, West 327 Belmont Place in Addison, Illinois and set up surveillance on that location as well. At 3:45 P.M. on that date, Carrillo and two other men arrived at the Belmont Place location. Carrillo then got into the Sable and drove to 109 Clarendon Street in Addison. Initially, the Sable was parked on the driveway of the residence, but the DEA agents later noticed it was no longer on the driveway, and the garage door had been closed.

  Approximately two hours after the cars arrived at the residence, Carrillo was seen driving away in the red Mercury Sable. Two other men then left in a red Toyota pick-up truck. The DEA agents attempted to follow the Toyota but it was driven evasively, and the agents lost the car. Approximately twenty minutes later they found the Toyota in a movie theater parking lot, and there were now three men inside the cab of the truck. The red Mercury Sable was also parked in the same lot. The Toyota left the parking lot and was again driven in an evasive manner. Upon returning to the movie theater parking lot, the truck was stopped by the DEA agents. At the time the Toyota was stopped, Carrillo was in the passenger seat. On his person, the agents found a garage door opener for 109 Clarendon, a house key to the basement at 109 Clarendon, and a computer chip that operated the trap inside the red Mercury Sable. Carrillo and the other two men were arrested and taken to the Addison Police Department. Carrillo identified himself using the alias of "Joshua Rivera," and had a driver's license in that name. During questioning by investigators, Carrillo gave multiple stories regarding his activities that day.

  Upon receiving consent to search the Sable, the DEA agents found 48 one-kilogram bricks of cocaine inside the car's trap. The agents also received consent to search 109 Clarendon and 20 West 327 Belmont. The agents found a trap in the basement floor of 20 West 327 Belmont that contained two kilograms of cocaine, a scale, a semi-automatic handgun, ammunition, and drug ledgers. Carrillo and another Defendant, Francisco Soto, were indicted for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and conspiracy with intent to distribute cocaine in violation of 21 U.S.C. § 846.

  B. Procedural History

  On December 10, 1999, a jury found Carrillo guilty of possession with intent to distribute cocaine, and conspiracy with intent to distribute cocaine. Carrillo called no witnesses on his behalf. On June 21, 2000, the court sentenced Carrillo to 151 months imprisonment and five years supervised release. On appeal, the Seventh Circuit affirmed both the conviction and sentence. Carrillo, 269 F.3d at 771.

  On November 6, 2002, Carrillo filed his Motion under 28 U.S.C. § 2255. The court then ordered the government to file a Response to Carrillo's Motion. On October 31, 2003, the government filed its Response. Finally, Carrillo filed his Reply to the Government's Response on December 4, 2003. Carrillo's Motion is fully briefed and before the court. II. DISCUSSION

  A. Standard of Decision

  Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct his or her sentence. This relief is available only in limited circumstances, such as where an error is jurisdictional, of Constitutional magnitude, or there has been a "complete miscarriage of justice." See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). The statute states:
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.
28 U.S.C. § 2255 ¶ 1. If the court determines that any of these grounds exists, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255 ¶ 2. In making that determination, the court must review evidence and draw all reasonable inferences from it in a light most favorable to the government. See United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000); Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992).

  Section 2255 petitions are subject to various bars, including that of procedural default. They are "neither a recapitulation of nor a substitute for a direct appeal." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted). Thus, a § 2255 motion cannot raise: (1) issues that were raised on direct appeal, unless there is a showing of changed circumstances; (2) non-Constitutional issues that could have been raised on direct appeal, but were not; and (3) Constitutional issues that were not raised on direct appeal. See Belford ...


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