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United States of America v. Antonio Lopez-Popoca

April 12, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANTONIO LOPEZ-POPOCA, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Antonio Lopez-Popoca has moved the Court pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence on a narcotics conspiracy charge. The indictment alleged that Lopez-Popoca participated in a drug trafficking operation that involved the receipt and resale of large amounts of cocaine and heroin. Lopez-Popoca pled guilty and was sentenced by Judge William Hibbler to a prison term of 188 months. In his section 2255 motion, Lopez-Popoca primarily asserts that his attorney rendered constitutionally ineffective assistance in violation of his Sixth Amendment rights. For the reasons stated below, the Court denies the motion in part and orders the government to submit additional materials in support of its position on one of LopezPopoca's claims.

Background

On May 10, 2007, Lopez-Popoca, German Pasion-Rios, and Ricardo DelgadoAcasio were indicted for participation in drug trafficking operations in Chicago. Lopez- Popoca was charged with one count of conspiracy to possess cocaine and heroin with intent to distribute, one count of possession of cocaine with intent to distribute, and one count of possession of heroin with intent to distribute.

Lopez-Popoca pled guilty to the conspiracy charge. He entered into a plea agreement with the government in which he admitted that the following facts were true and that they established his guilt beyond a reasonable doubt:

Beginning in or around at least January 2007 and continuing to on or about April 20, 2007, at Chicago, in the Northern District of Illinois, Eastern Division, and elsewhere, defendant conspired with . . . German Pasion-Rios, and with others, including Individuals A and B, knowingly and intentionally to distribute and to possess with intent to distribute controlled substances, namely, five kilograms or more of mixtures containing cocaine . . . and one kilogram or more of mixtures containing heroin . . . .

Specifically, beginning sometime in approximately early 2005 and continuing to on or about April 20, 2007, at locations in the Chicagoland area, defendant began to receive kilogram quantities of cocaine and, less frequently, kilogram quantities of heroin from two Mexican nationals. The Mexican nationals "fronted" the narcotics to defendant, meaning defendant received narcotics from the Mexican nationals without being required to pay for the narcotics immediately. Defendant negotiated with the Mexican nationals concerning price and logistics of delivery of the narcotics.

Often, the Mexican nationals delivered the narcotics to the basement apartment at 2957 N. Lawndale, Chicago, Illinois, where German Pasion-Rios and, more recently, Ricardo Delgado-Acasio, assisted defendant by receiving the narcotics on defendant's behalf and preparing it for resale to defendant's customers.

Two of defendant's customers were Individual A and Individual B. Overall, defendant supplied Individual A and Individual B with approximately 45 kilograms of cocaine and approximately three kilograms of heroin. Defendant "fronted" these narcotics to Individuals A and B.

In furtherance of the conspiracy, on April 20, 2007, defendant had a conversation with Individual A, who, by that time, unbeknownst to the defendant, was cooperating with agents of the Drug Enforcement Administration. Defendant told Individual A that defendant had "a hand in stock," meaning five kilograms of cocaine. During that and subsequent conversations, defendant and Individual A also discussed a kilogram of heroin. Defendant and Individual A agreed to meet in order for defendant to supply Individual A with narcotics, and defendant told Individual A to meet him "at the house," meaning 2957 N. Lawndale, Chicago, Illinois. Defendant then went to 2957 N. Lawndale, where Pasion-Rios and Delgado-Acasio were already present. Defendant, Pasion-Rios, and DelgadoAcasio met with Individual A and Individual B, and defendant supplied Individual A and Individual B with two kilograms of cocaine and one kilogram of heroin. Also located at 2957 N. Lawndale at the time was an additional kilogram of heroin and three additional kilograms of cocaine.

Pl. Ex. A. at 2-4. Judge Hibbler conducted a hearing on June 3, 2008, at which he questioned Lopez-Popoca about his decision and then accepted his guilty plea.

On August 26, 2008, Judge Hibbler held a sentencing hearing. After hearing arguments from counsel regarding the appropriate advisory Sentencing Guidelines calculation, Judge Hibbler concluded that the correct advisory range was 188 to 235 months. After hearing further argument and having the interpreter read into the record several letters from Lopez-Popoca's family and friends, Judge Hibbler stated:

It is always a difficult chore to impose [a] sentence after having considered many letters and communications that talk about the positive attributes of any defendant. But the Court is not only concerned with the defendant but with the conduct that caused him to be in this situation. And as I listen to the letters, or read letters, I am often concerned not only with the defendant but what is the result of the conduct of the defendant. And I sometimes wonder how many young people are now addicted or incarcerated or dead because of the defendant's conduct.

I hear about what a good worker and hard worker he is. And I cannot close my eyes to the fact that his work was distributing this poison to our young people that has caused so much injury and so much pain and so much sorrow across this country and across the world.

I think that the defendant has engaged in this conduct for some extensive period of time. He was involved with other individuals. And the only justification for his involvement was the almighty dollar, and it didn't matter who was hurt, as long as he was able to ply his trade and get the benefits of that trade.

I find no reason to not impose a sentence within the guideline range, even though that range, I think, is very draconian and it is. But that's a decision that I didn't make; the defendant made.

And therefore, based upon the defendant's conduct, based upon the facts of this case, I am going to sentence the defendant to a term in the Bureau of Prisons of 188 months. Upon release from imprisonment, the defendant shall ...


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