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United States v. Ugarte

United States District Court, D. Nevada

December 23, 2019

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
JOSE UGARTE, Petitioner/Defendant.

          ORDER

          Gloria M. Navarro, District Judge United States District Court

         Pending before the Court is Petitioner Jose Ugarte's (“Petitioner's”) Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (“2255 Motion”), (ECF No. 148). The Government filed a Response, (ECF No. 151), and Petitioner did not file a reply.

         Also pending before the Court are Petitioner's Motion to Transfer, (ECF No. 145), and Motion for Order regarding the Motion to Transfer, (ECF No. 154). The Government did not respond to either Motion.

         For the reasons discussed below, Petitioner's 2255 Motion is GRANTED in part and DENIED in part. Petitioner's Motion to Transfer is DENIED.

         I. BACKGROUND

         On April 20, 2015, Petitioner participated in an armed bank robbery in Las Vegas, Nevada. (See Plea Agreement 4:8-5:8). About a year later, Petitioner and one of his co-defendants planned to carry out another armed robbery, but they were apprehended prior to its execution. (Id. 5:9-15).

         On May 19, 2016, the State of Nevada charged Petitioner with crimes relating to both the 2015 robbery and the 2016 attempted robbery in Case No. C-16-315046. (See State Docket, Ex. 1 to Resp. to 2255 Mot., ECF No. 151). On August 3, 2016, a federal grand jury returned the Indictment charging Petitioner and three co-defendants with Conspiracy to Interfere with Commerce by Robbery in violation of 18 U.S.C. § 1951(a) based on the same conduct for which Petitioner was charged in the state case. (See Indictment, ECF No. 1). On August 12, 2016, the United States Marshalls brought Petitioner into federal custody on a writ of habeas corpus ad prosequendum. (See Writ of Habeas Corpus Ad Prosequendum, ECF No. 10).

         On April 21, 2017, Petitioner pleaded guilty to the one count in the Indictment and admitted to his involvement in the 2015 robbery and 2016 attempted robbery. (Plea Agreement 3:22-5:22). Petitioner and the Government agreed to recommend his state and federal sentences run concurrently. (Id. 10:3-5). The Government represents that, “counsel for the Government's recollection is that the parties intended for Ugarte to receive a fully concurrent sentence (i.e., that Ugarte, who was in federal custody on a writ, receive credit toward his federal sentence back to the date of his state arrest).” (Resp. to 2255 Mot. 2:23-3:2).

         On November 17, 2017, the Court sentenced Petitioner to 60 months in custody to run concurrently to his anticipated state sentence. (See Judgement at 2, ECF No. 172). Petitioner was then returned to state custody, and he was sentenced on the state charges twelve days later. (See State Docket, Ex. 1 to Resp. to 2255 Mot.).

         II. LEGAL STANDARD

         Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the Court which imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Such a motion may be brought on the following grounds: “(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010).

         Motions pursuant to § 2255 must be filed within one year from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). “[A] district court may deny a Section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). “No evidentiary hearing is necessary when the issue of credibility can be conclusively decided on the basis of documentary testimony and evidence in the record.” Shah v. United States, 878 F.2d 1156, 1160 (9th Cir. 1989).

         III. ...


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