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United States v. Velasquez

United States District Court, N.D. Indiana, Hammond Division

October 11, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ARMANDO JOSE VELASQUEZ, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON, CHIEF JUDGE

         Armando Velasquez is one of 24 members of the murderous, drug-dealing Imperial Gangsters street gang of East Chicago, Indiana who were prosecuted on various charges in this case. On January 10, 2014, Velasquez pled guilty to three counts - conspiracy to participate in racketeering activity, attempted murder in aid of racketeering activity, and use of a firearm during and in relation to a crime of violence. [DE 796, 798.] On July 24, 2014, I sentenced Velasquez to a total term of imprisonment of 305 months. Here's how I got there: Velasquez received a sentence of 185 months on the racketeering conspiracy and 120 months on the attempted murder, to be served concurrent with one another; he also received a sentence of 120 months on the firearm charge to be served consecutive to the other two counts. [DE 1000, 1002.] No direct appeal was taken. Now before me is Velasquez's motion under 28 U.S.C. §2255 seeking to vacate, set aside or correct his federal sentence. Relief under §2255(a) is available for a defendant who can demonstrate “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.”

         Velasquez filed his §2255 pro se, raising four grounds for relief. I take up each of the arguments below.

         Issue One: - Compliance with Plea Agreement

         The first issue is whether Velasquez was sentenced in accordance with the terms of the plea agreement and its sentencing stipulation. The plea agreement in this case was a binding one under Fed.R.Civ.P. 11(c)(1)(C) meaning that once I accepted the plea agreement, I was required to follow the terms the parties agreed to as binding on the court. [DE 1821 at 6-7.] The provision of Velasquez's plea agreement binding on the court was his agreement that he would “not receive a sentence that includes a period of incarceration in excess of three hundred and sixty (360) months.” [DE 796 at ¶7(h)(i).] The government also agreed that it would recommend that I impose a sentence “equal to the minimum of the applicable guideline range.” [Id. at ¶7(g)(ii).]

         In his statement of Issue One, Velasquez correctly notes that at sentencing, the prosecutor argued for the bottom of the guidelines range, which was 355 months (235 months on the first two counts concurrently plus the mandatory consecutive 120 months on the gun count). [DE 1821 at 6, 14.] The sentence I ultimately imposed was actually less - an aggregate of 305 months. For that reason, I share the puzzlement expressed by the government in its response to Issue One. [DE 1827 at 2.][1] In his reply memorandum and incomplete supplemental memorandum, Velasquez fails to further address or to clarify Issue One. I can discern no right to relief on Issue One.

         Issue Two: - Credit for State Sentence

         Velasquez complains in Issue Two that he was not given full credit under §5K2.23 of the Sentencing Guidelines for the 76 months he had already served on two Indiana convictions for voluntary manslaughter and for carrying a handgun without a license, both of which were overt acts in the racketeering conspiracy charged in this court.[2] Section 5K2.23 provided that a downward departure “may be appropriate” if the defendant had completed serving a term of imprisonment for which §5G1.3(b) of the Guidelines would have provided an adjustment if the other sentence had been undischarged at the time of Velasquez's federal sentencing, and that “[a]ny such departure should be fashioned to achieve a reasonable punishment for the instant offense.” §5K2.23 U.S.S.G. (2013).

         At sentencing I agreed with Velasquez that he should be given appropriate credit under §5K2.23. But as I explained to Velasquez at the proceedings on both his plea of guilty and his sentencing, the Sentencing Guidelines are merely advisory rather than mandatory. [DE 1825 at 18-19; DE 1612 at 25.] In any event, the language of §5K2.23 - “may be appropriate” and “fashioned to achieve a reasonable punishment” - is not mandatory, and does not prescribe a particular arithmetical method of awarding sentencing credit. Instead, the provision leaves much to the discretion of the sentencing judge.

         At the sentencing hearing, I explained my Guidelines computation and how I applied credit for the 76 months Velasquez had already served on his related state sentence:

So the guidelines in this case, as I mentioned, are 235 months to 293 months. He has served 76 months of that time, essentially, which means the guidelines under the way I'm viewing the analysis pursuant to 5K2.23, the range actually is 159 to 217 for the counts not relating to the firearm. When you add in the 120 months that is required as a mandatory minimum, consecutive to the other counts, the total punishment range would be 279 months to 337 months.
I'm gonna select a point in the middle of that range, which I think is appropriate for all of the aggravating reasons that I've already alluded to on the record; but I have given the defendant a substantial consideration for the time he's already served on that earlier state court conviction.

[DE 1612 at 31.] In other words, I applied §5K2.23 to give Velasquez credit for his state imprisonment in the manner I deemed appropriate to achieve a reasonable sentence. Velasquez does not demonstrate any error in my application of §5K2.23, and certainly does not demonstrate any basis for relief on a motion to vacate under §2255.

         Issue Three: - ...


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