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United States v. Solis

United States District Court, Eastern District of Louisiana

January 23, 2015

UNITED STATES OF AMERICA
v.
NEY SOLIS[1]a/k/a ENRIQUE ORDONEZ MENDEZ a/k/a GILBERTO CO VELEZ a/k/a TITO

SECTION "N"

ORDER AND REASONS

KURT D. ENGELHARDT United States District Judge

Presently before the Court is a motion to vacate filed by Defendant pursuant to 28 U.S.C. §2255. See Rec. Docs. 660 and 674.[2] Having carefully considered the parties' submissions and applicable law, including the affidavit from Defendant's counsel, Steven Lemoine, [3] IT IS ORDERED that Defendant's motion is DENIED for essentially the reasons set forth in the Government's comprehensive and well-reasoned opposition memoranda (Rec. Docs. 670 and 677).[4]

Regarding the knowing nature of Defendant's January 7, 2009 guilty plea, the Court additionally notes that, at his February 2011 sentencing, Defendant, in response to the Court's query, re-affirmed his desire to plead guilty notwithstanding the Court advising that his conviction would render deportation, if ordered by the United States Attorney General, presumptively mandatory.[5] At sentencing, the Court also again found Defendant's guilty plea knowledgeable and voluntary as it had during the January 7, 2009 proceeding and confirmed that defense counsel was satisfied that Defendant was pleading guilty voluntarily and with full knowledge of consequences of his plea.[6]Additionally, regarding the possible downward departure, pursuant to § 5H1.1 of the United States Sentencing Guidelines (U.S.S.G.), concerning "Mental and Emotional Conditions (Policy Statement), " asserted by Defendant in his motion, Defendant, at re-arraignment, informed the Court that he had been under the care of a doctor in the past, denied taking any medication at that time of sentencing, and expressly confirmed that he understood the purpose of that proceeding.[7]Thereafter, at sentencing, Defendant confirmed that he had read (or had read to him) the Pre-Sentence Investigation Report ("PSR"), reflecting that Defendant "stated that he has never been seen by mental health professionals and describes his overall mental and emotional health as good. There is no evidence to suggest otherwise."[8]

Defendant also took advantage of the opportunity, at sentencing, to speak to the Court in mitigation of punishment prior to the imposition of sentence. During that time, Defendant made no reference to current or prior mental health concerns. Rather, he offered thanks to the Court, defense counsel, Government counsel, and FBI agent John Sablatura.[9] In any event, § 5H1.1 indicates that mental and emotional conditions may be relevant in determining whether a possible departure is warranted only if "such conditions . . . are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines."[10] There is no indication that such circumstances exist here. Rather, the Government's memoranda, the affidavit from defense counsel, [11] the re-arraignment and sentencing transcripts, particularly including the testimony offered at sentencing by Agent Sablatura, and the motion previously filed by the Government[12] strongly suggest the contrary. Given the foregoing, as well as the actual sentence imposed, the Court finds no basis to conclude that Defendant suffered any prejudice relative to the information provided to the Court regarding his mental health history.

Accordingly, for the reasons stated, the Court finds no basis to find that Defendant lacked mental competence at the time he entered his guilty plea or at sentencing, that Defendant's guilty plea was anything other than knowing or voluntary, or that Defendant's motion otherwise has merit. Accordingly, Defendant's motion is denied.


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