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Martinez v. United States

August 10, 2009

OZIEL MARTINEZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Oziel Martinez's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 For the following reasons, the Court denies Martinez's Section 2255 motion.

BACKGROUND

On August 4, 2005, a grand jury returned a Superseding Indictment that charged Martinez and his co-defendants Adan Martinez, Andrews Macias, Ramiro Anguiano, and Santos Flores with conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and in excess of 100 kilograms of marijuana in violation of 21 U.S.C. § 846 in Count I. In Count III, the Superseding Indictment charged Martinez and his co-defendants with possession with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1).

On June 14, 2006, Martinez pleaded guilty to Counts I and III of the Superseding Indictment without entering into a written plea agreement with the government. Prior to the entry of Martinez's guilty plea, the government recited the following factual basis for the guilty plea:

[T]he defendant and his brother Adan Martinez [and] one of the co-defendants, worked for a drug trafficking organization that transported drugs from . . . Texas to, among other places, the Chicagoland area. The defendant participated in [these transactions by], among others things, overseeing the loading of the drugs, arranging for drivers to drive the semi-trailer tractors from Texas to the Chicago area, arranging for the warehouse [to] which these drugs were driven[,] traveling to Chicago to help unload the drugs from the trailer once they arrived in Chicago, and overseeing the retrieval and distribution of the drugs in Chicago.

In September [2004], . . . defendant arranged for two tractor trailers containing illegal narcotics to be driven from Texas to co-defendant Macias's warehouse [in Chicago]. One contained about 90 kilograms of cocaine and the other contained about 1,692 pounds of marijuana, which is 767 kilograms. The defendant informed co-defendant Macias of these shipments and also told him that his brother, Adan Martinez, another co-defendant, would be traveling to Chicago to oversee the delivery of these loads. The defendant also instructed co-defendant Macias to pickup his brother Adan at Midway Airport and to take him to accommodations in Chicago.

...

[T]he defendant also arranged for at least one of the drivers to transport these two shipments of drugs. Co-conspirator A was to drive the first load, and co-defendant [Anguiano] was the driver of the second load, which load was the load containing the marijuana.

In connection with the second load, the load that contained the marijuana, the defendant told co-defendant Macias in Chicago to purchase a cellular phone with prepaid minutes on it and to provide him with the telephone number so that number could be placed on a bill of lading that would accompany that shipment of marijuana from Texas to Chicago. . . . [A] few days later, defendant Macias did, in fact, call defendant Martinez and tell him a number of a phone that he had purchased here in Chicago. That telephone number was ultimately placed upon a bill of lading that accompanied that shipment of marijuana from Texas to its intended destination, Chicago.

On or about September 26, 2004, the defendant and his brother oversaw the loading of approximately 90 kilograms of cocaine into a trailer in a trucking yard in Texas. The truck was then driven from Texas to Chicago by Conspirator A. The defendant's brother, as the defendant was aware, flew to Chicago to meet that truck and to oversee the delivery of the cocaine on September 29, 2004. The truck load of marijuana that defendant helped arrange[] was intercepted in downstate Illinois as it was being driven by [Anguiano] to Chicago. That truck contained approximately 1,692 pounds of marijuana. After the marijuana was intercepted in downstate Illinois, the defendant received a telephone call from co-defendant Macias, who told him that he had heard that the shipment of marijuana had been intercepted because he had received a telephone call on the phone he had purchased from the state police indicating that was the case. The defendant told co-defendant Macias to pick up his brother from the motel where he was staying. His brother was staying in Chicago intending to unload that truckload of marijuana, and to take him to the bus station so that his brother, Adan Martinez, could return to . . . Texas.

Defendant also helped arrange another load of cocaine to be shipped from Texas to Chicago in October of 2004. On or about October 21, 2004, the defendant called his co-defendant in Chicago, Andres Macias, and told him that Conspirator A, who had delivered the earlier load of cocaine in September, was going to drive another load of cocaine from Texas to the warehouse in Chicago. The defendant told co-defendant Macias that he, the defendant, would be the person overseeing the unloading of the truck and that he would be flying from Texas to Chicago to do so.

About one or two days later, the defendant oversaw the loading of approximately 107 kilograms of cocaine into a tractor trailer in a trucking yard in Texas. The truck was then driven from Texas by Conspirator A, who was supposed to take the truck to the warehouse in Chicago. On or about October 24 of 2004, [] the defendant flew to Chicago, defendant Macias picked him up at Midway airport and took him to a motel near the warehouse. The next day, the defendant went to the warehouse to wait for Conspirator A to arrive with the cocaine. That afternoon the defendant received a call from the co-conspirator indicating that he was in Chicago with the cocaine. The defendant told him to drive the cocaine to the warehouse, the warehouse of co-defendant Macias. That afternoon, Co-conspirator A drove the trailer [to] the warehouse. The defendant, co-defendant Macias, and co-defendant Flores, all believing that the trailer contained cocaine, began to unload the trailer at that time.

(R. 9-2, Ex. A, June 14, 2006, Change of Plea Hr'g, at 12-17.)

Martinez and his attorney agreed to the government's factual basis -- except to the extent that it represented that Martinez led, organized, oversaw, or supervised his co-defendants' activities. (Id. at 17.) Also, Martinez and his attorney agreed that the offenses to which Martinez was pleading guilty involved approximately 197 kilograms of cocaine and approximately 1,692 pounds of marijuana. (Id. at 12, 15.)

The Presentence Investigation Report ("PSR") recommended that the sentencing court find the base offense level to be 38 pursuant to U.S.S.G. ยงยง 2D1.1(a)(3), (c)(1) because the offense involved 197 kilograms of ...


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