Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Arroyo

United States District Court, N.D. Illinois, Eastern Division

June 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RICARDO ARROYO, Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         This matter is before the Court on Petitioner Ricardo Arroyo's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [1]. For the reasons stated below, Petitioner's Section 2255 petition [1] is denied. The Court declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2) and directs the Clerk to enter judgment in favor of the United States. Civil case terminated.

         I. Background

         Petitioner Ricardo Arroyo (“Petitioner”) is currently serving a seventy-month sentence after pleading guilty to possession with intent to distribute in excess of 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). From approximately 2009 through October 2012, Petitioner assisted his father, Marcos Arroyo, in obtaining wholesale quantities of cocaine and heroin for multiple drug supplies and reselling drugs to multiple wholesale drug customers. Petitioner's activities in assisting his father included communicating and meeting with drug suppliers and customers, receiving and distributing drugs, and collecting and distributing drug proceeds. On April 25, 2013, Petitioner was charged (in this Court) with six violations of 21 U.S.C. § 841(a)(1), as well as a violation of 21 U.S.C. § 846. U.S. v. Ricardo Arroyo, No. 12-CR-821-4, Dkt. 77. The indictment also included a forfeiture allegation which sought, among other things, real estate-namely, a residence at 22820 Torrence Avenue, Sauk Village, Illinois, which Petitioner and his father had used for conducting drug transactions and for storing drugs and cash proceeds from the sales of drugs.

         On August 26, 2015, Petitioner pled guilty, pursuant to a written plea agreement, to a violation of 21 U.S.C. § 841(a)(1) as charged in Count Nine of the second superseding indictment. No. 12-CR-821-4, Dkt. 235. In the plea agreement, Petitioner agreed that the amount of narcotics involved in the conspiracy and relevant conduct for which he was accountable was more than approximately 50 kilograms of cocaine but less than 150 kilograms of cocaine and no less than approximately 1200 grams of heroin. Petitioner also agreed to the applicable United States Sentencing Guidelines calculations, namely, that pursuant to USSG§§ 2D1.1(a)(5), 2D1.1(c)(3), 3E1.1(a), 3E1.1(b), 5Cl.2 and 2D1.1(b)(16), and his criminal history category of I, his anticipated advisory sentencing guidelines range was 108 to 135 months' imprisonment. Id. at 8-9. The plea agreement also states that Petitioner may be eligible for a three-level reduction in the offense level for acceptance of responsibility under USSG§§ 3E1.1(a) and (b) and an additional two-level “safety valve” reduction under § 2D1.1(b)(6). Id. Additionally, Petitioner agreed to the forfeiture of $292, 500 and the real property located at 22820 Torrence Avenue, Sauk Village, Illinois, as proceeds obtained as a result of the offense and property which facilitated the offense. Id. at 12. Finally, Petitioner acknowledged that he had read the Agreement and carefully reviewed each provision with his attorney, and that he understood and voluntarily accepted each and every term and condition of the Agreement. Id. at 20.

         That same day, Petitioner engaged in a plea colloquy with the Court. No. 12-CR-821-4, Dkt. 343. Under oath, Petitioner stated that he had had enough time to talk to his attorney about the case and had told his attorney everything that he knew about the case. Id. at 6. He also said that he had read the indictment and discussed it with his attorney and he understood the charges against him. Id. at 7-8. He further told the Court that he had read the plea agreement and discussed it with his attorney before signing it. Id. at 13. Regarding drug quantities, Petitioner admitted, by agreeing with the government's summary of its evidence, that the amount of narcotics involved in the conspiracy and relevant conduct for which he was accountable was more than approximately 50 kilograms of cocaine, but less than 150 kilograms of cocaine, and no less than approximately 1200 grams of heroin. Id. at 23-24.

         During the plea hearing, the government described its preliminary sentencing calculation as follows: the Base Offense Level begins at 34, because the offense involved more than 50 kilograms but less than 50 kilograms of cocaine and no less than approximately 1200 grams of heroin; a three-point reduction for acceptance of responsibility; and, if the Court agrees at the time of sentencing, a two-level “safety valve” reduction that would allow the Court to sentence Petitioner without regard to the statutory minimum. Id. at 14-15. Before the safety-valve reduction, the advisory guideline range would be 108 to 135 months, and with the safety-valve reduction, it would be 87-108 months. Id. at 15-16. Petitioner's counsel stated that he agreed with the government's calculations and had explained them to Petitioner, and when asked if he had any questions either for the Court or his attorney, Petitioner responded “No.” Id. at 16-17. The Court also informed Petitioner that before sentencing, the parties could “put in any additions or corrections they have to the Presentence Report, and any further position they want to take in regard to the sentencing guidelines, including the safety valve.” Id. at 17.

         The presentence investigative report (“PSR”) mirrored the government's preliminary sentencing calculation. No. 12-CR-821-4, Dkt. 239 at 6-7. It stated that the base offense level was 34 and the offense level was decreased by three for Petitioner's acceptance of responsibility. Id. It also noted that Petitioner met the requirements for a two-level safety valve reduction. Id. Given a criminal history category of I and a total offense level of 29, which includes the safety-valve reduction, the PSR calculated an advisory guidelines range of 87-108 months. Id. at 17. In response to the PSR, Petitioner's sentencing memorandum did not challenge the advisory guidelines calculations, but argued for a lenient sentence pursuant to the factors of 18 U.S.C. § 3553. No. 12-CR-821-4, Dkt. 243.

         At a March 22, 2016 sentencing hearing, the Court adopted the guidelines calculations set forth in the PSR and sentenced Petitioner to a below-the-range sentence of seventy months' imprisonment. No. 12-CR-821-4, Dkt. 278, 280. The Court also granted the government's preliminary order of forfeiture, seeking to forfeit a personal money judgment in the amount of $292, 500, and the property located at 22820 Torrence Avenue, Sauk Village, Illinois. Petitioner did not object to or challenge the motion. On August 17, 2016, the government moved for a final order of forfeiture, which was granted on September 1, 2016. No. 12-CR-821-4, Dkt. 299, 301, 302.

         On May 9, 2017, Petitioner filed the instant habeas petition [1]. He alleges that his conviction and sentence should be vacated because his attorney was ineffective. Specifically, he claims that defense counsel made two errors. First, Petitioner alleges that before he entered a guilty plea, defense counsel incorrectly said that Petitioner could challenge guideline calculations regarding drug quantity after pleading guilty and before sentencing. Id. at 4. Second, Petitioner says that defense counsel led him to believe that forfeiture of his real property would be negotiable after a guilty plea, instead of informing Petitioner that a guilty plea would lead directly to a forfeiture of his real property. Id. Petitioner asserts that if his counsel had advised him correctly, he would not have entered the guilty plea that he did. Id.

         Petitioner did not file a memorandum or affidavit support of his claims, but the petition stated that he would supplement the filing with a memorandum and affidavit. Id. at 13. The Court gave Petitioner and his counsel several chances to file a supplemental memorandum, but none has been filed. See [4], [10], [11], [12], and [15].

         II. Legal Standard

         Petitioner seeks habeas relief under Section 2255. The Seventh Circuit has stressed that “relief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Under § 2255, relief “is available only when the ‘sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). A Section 2255 motion is not a substitute for a direct criminal appeal. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (stating that a § 2255 motion is “neither a recapitulation of nor a substitute for a direct appeal” (internal citation and quotation marks omitted)).

         Petitioner argues that he received ineffective assistance of counsel in violation of the Sixth Amendment because defense counsel: (1) incorrectly told Petitioner that he would be permitted to challenge guideline calculations regarding drug quantity after pleading guilty and before sentencing; and (2) led Petitioner to believe that forfeiture of his real property would be negotiable after a guilty plea, instead of informing Petitioner that a guilty plea would lead directly to a forfeiture of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.