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United States of America v. Hector Radames Roche-Moreno

February 7, 2011

UNITED STATES OF AMERICA
v.
HECTOR RADAMES ROCHE-MORENO



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is a motion (Doc. 75) filed pro se by petitioner Hector Radames Roche-Moreno ("Roche-Moreno") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Roche-Moreno claims his conviction was improper because he was denied effective assistance of counsel in violation of his Sixth Amendment rights under the United States Constitution. Specifically, he contends that trial counsel failed to move for suppression of evidence collected in the course of a search of his storage unit on the ground that he did not personally consent to the search. (See id. at 3.) In addition, Roche-Moreno argues that the court lacked subject matter jurisdiction to sentence him as a career offender. (See id. at 4-6.) For the reasons that follow, Roche-Moreno's motion (Doc. 75) will be denied.

I. Statement of Facts & Procedural History

Between the fall of 2003 and the fall of 2006, police officers arrested numerous individuals who had purchased multi-ounce quantities of cocaine hydrochloride and crack cocaine from Roche-Moreno in Lancaster, Harrisburg, and York, Pennsylvania (Doc. 83 at 4-5.)*fn2 Pursuant to these arrests, law enforcement agents obtained a court-authorized wiretap on a cell phone of one of RocheMoreno's customers. (Id. at 5.) On October 8 and November 8, 2006, law enforcement agents monitored and recorded telephone calls in which the customer ordered from Roche-Moreno both crack cocaine and cocaine hydrochloride. (Id.) Subsequent to the phone calls, surveillance officers observed Roche-Moreno travel to the customer's residence to complete the transactions. (Id.)

On May 2, 2007, officers executed a delayed-notification search warrant at a storage unit controlled by Roche-Moreno. (Id.) Officers discovered cash, documents indicating that Roche-Moreno used numerous identities, drug paraphernalia, an owner's manual for a Glock handgun, and a large digital scale. (Id.) Authorities arrested Roche-Moreno on May 14, 2007, and subsequently located a loaded Glock handgun at his residence. (Id. at 5-6.) Authorities also seized evidence indicating Roche-Moreno purchased, and caused other individuals to "straw purchase," numerous automobiles with large sums of cash. (Id. at 6.)

Authorities discovered that Roche-Moreno illegally re-entered the United States following deportation stemming from an earlier conviction for an aggravated felony in the Dauphin County Court of Common Pleas. (Id.) Roche-Moreno illegally re-entered the United States on or after November 10, 1993.

On November 29, 2007, Roche-Moreno pled guilty to a four-count superseding felony information charging him with: (1) illegal re-entry into the United States, in violation of 8 U.S.C. §§ 1326(a); (2) distribution and possession with intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1);

(3) conspiracy to commit money laundering, in violation of 18 U.S.C. §1956(h); and

(4) criminal forfeiture, in violation of 21 U.S.C. § 853(p). (Docs. 31, 34, 35.)

Prior to sentencing, the U.S. Probation Office prepared a Presentence Report ("PSR"), which set forth Roche-Moreno's criminal history. The report enumerated four prior convictions for controlled substance offenses. On April 16, 1991, RocheMoreno pled guilty in state court to three felony charges and was sentenced to concurrent terms of 3 to 6 years in prison. On September 27, 1991, Roche-Moreno pled guilty to a fourth felony charge and was sentenced to 1 to 3 years in prison, with his sentence to run concurrently with the sentences he received in April of that year. During the September 1991 sentencing hearing, the state prosecutor indicated that Roche-Moreno's fourth felony drug conviction ordinarily would have been presented for sentencing on April 16, 1991 with his other three convictions, but due to a bureaucratic error it had not.

Based on these prior drug convictions, the PSR noted that, for purposes of sentencing, Roche-Moreno qualified as a career offender.*fn3 The PSR listed the Roche-Moreno's offense level as 34 and, with the career offender criminal history classification, determined Roche-Moreno's applicable Guidelines range to be 262 to 327 months in prison.

At the sentencing hearing, Roche-Moreno challenged his designation as a career offender. (Doc. 63 at 4.) He argued that, but for the bureaucratic "glitch" by the prosecution before the state court, he would have been sentenced on all four of his prior drug offenses on the same day and would not have qualified as a career offender under the Federal Sentencing Guidelines. (Id. at 4-6.) This court overruled Roche-Moreno's objection to the career offender designation, but granted him a three-level departure for acceptance of responsibility and an additional three-level departure for substantial assistance to the government. (Id. at 9, 11, 19.) These departures lowered Roche-Moreno's offense level from 34 to 28 and decreased his Guidelines range to 140 to 175 months. (Id. at 19-20.) The court imposed an aggregate sentence of 140 months for each of his three offenses-cocaine possession and distribution, money laundering, and illegal re-entry-with the terms to run concurrently, a special assessment of $300, and a two-year term of supervised release.*fn4 (Doc. 59.)

Roche-Moreno appealed his sentence to the Third Circuit Court of Appeals, see United States v. Roche-Moreno, 331 Fed. App'x 110 (3d Cir. 2009), arguing that this court committed a procedural error in designating him as a career offender. Id. The Third Circuit held that the Federal Sentencing Guidelines provide a "straightforward, easily applicable rule for counting prior convictions." Id. at 112. The court concluded that this court correctly applied the Federal Sentencing Guidelines in counting Roche-Moreno's prior convictions and affirmed RocheMoreno's conviction and sentence on June 3, 2009. Id. at 112-13.

On May 10, 2010, Roche-Moreno filed a timely motion (Doc. 75) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. ยง 2255. The government submitted an opposing brief (Doc. 83) on July 2, 2010. The motion ...


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