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Mariscal v. United States

United States District Court, Seventh Circuit

October 23, 2013




Petitioner Miguel Mariscal, Jr. is currently serving a 20-year prison sentence for conspiracy to distribute and possession with intent to distribute more than five grams of cocaine and more than 1, 000 kilograms of marijuana. His appeal was dismissed, although the court of appeals declined to rule on whether petitioner’s attorney provided ineffective assistance of counsel in the negotiation of the appeal waiver in the plea agreement. See United States v. Mariscal, 365 Fed. App’x 16, 17 (7th Cir. 2010). That issue is now before the Court in petitioner’s pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government has responded (Doc. 9), and petitioner has replied (Doc. 12).


Randall Baker and Tilden Crase were arrested driving a semi through Madison County, Illinois, with 144 kilograms of cocaine. They informed investigators that petitioner, Miguel Mariscal, Jr., was responsible for coordinating the shipment. Agents from the U.S. Drug Enforcement Agency then arranged a meeting in which Baker secretly recorded petitioner discussing the seized cocaine shipment and telling Baker he would need to deliver two additional drug shipments to make up for the one that was seized. Law-enforcement officers executed a search warrant of petitioner’s home that same day. They found a loaded semi-automatic pistol and 24 grams of cocaine in his bedroom.

Petitioner was indicted for conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and for possession with intent to distribute cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). He pleaded guilty to both counts.

In his plea agreement, he and the government agreed that petitioner’s relevant conduct included about 144 kilograms of cocaine and 1, 800 kilograms of marijuana. He would have an initial guidelines offense level of 38, and a criminal-history category of II. The government recommended a reduction for affirmative acceptance of responsibility for his criminal conduct, resulting in an offense level of 35 and an advisory sentencing-guidelines range of 188 to 235 months. The government, however, had also filed an information under 21 U.S.C. § 851 to establish a prior felony conviction, which gave petitioner a mandatory minimum sentence of 240 months.

In exchange for petitioner’s continued cooperation under the terms of the plea agreement, the government agreed not to file a second § 851 information about another prior felony. The second information would have subjected petitioner to a mandatory life sentence in prison.

After petitioner’s plea was entered, the U.S. Probation Office issued its presentence-investigation report. The report concluded that petitioner’s offense level was 38, but that it should be reduced to 35 for acceptance of responsibility. However, the report also assessed a two-level increase for possession of a weapon during the offense, based on the pistol found in petitioner’s bedroom, and a three-level increase for petitioner’s role in the offense, finding that he was a manager or supervisor of an organization that involved five or more participants. Thus, petitioner’s offense level increased from 35 to 40. The report also found that petitioner had a criminal-history category of III. These computations resulted in a sentencing-guidelines range of 360 months to life.

Petitioner’s attorney, John Stobbs, filed motions opposing the report’s recommendations, to withdraw petitioner’s guilty plea, and to withdraw as attorney.[1] The Court held a hearing on the motions. It granted Stobbs’s motion to withdraw as attorney, but took the others under advisement. Petitioner was appointed a new attorney, Ronald Jenkins. Jenkins eventually asked the Court to leave petitioner’s guilty plea in place, i.e., to withdraw the motion to withdraw the guilty plea.

At petitioner’s sentencing, the government recommended a downward departure of 120 months, under U.S.S.G. § 5K1.1, based on petitioner’s complete cooperation and substantial assistance throughout the investigation and prosecution. The Court granted the departure and sentenced petitioner to 240 months’ imprisonment, on each of counts 1 and 2, to run concurrently.

Petitioner appealed. See United States v. Mariscal, 365 Fed. App’x 16 (7th Cir. 2010). Among other things, he argued that his plea was not knowing and voluntary. The court of appeals rejected that claim, however, because petitioner was advised of his rights during the plea colloquy (and the only potential error was harmless). Id. at *16–17. His other claims were barred by the appeal waiver in petitioner’s plea agreement. Id. at *17. Finally, the court noted that petitioner’s claim of ineffective assistance of counsel in the negotiation of his appeal waiver would best be raised on collateral review. Id.

Petitioner now moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, primarily alleging ineffective assistance of counsel. He claims (1) Stobbs misled him and did not research the facts of his case when calculating petitioner’s sentencing-guidelines range; (2) the government breached the plea agreement by not filing a motion under Federal Rule of Criminal Procedure 35; (3) Stobbs misinformed petitioner about the weapon enhancement and the amount of drugs that could be attributed to him; and (4) Jenkins failed to research the case and consider going to trial.[2]


A federal prisoner “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 sentencing court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Relief under § 2255 is “reserved for extraordinary ...

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