United States District Court, N.D. Iowa, Western Division
INITIAL REVIEW ORDER
W. BENNETT, U.S. DISTRICT COURT JUDGE
INTRODUCTION AND BACKGROUND
Angel Solano-Fierro's Motion Under 28 U.S.C. § 2255
To Vacate, Set Aside, Or Correct Sentence By A Person In
Federal Custody requires me to determine whether, as
Solano-Fierro claims, he is entitled to relief under the
United States Supreme Court decision in Johnson v. United
States, 135 S.Ct. 2551, 2557-58 (2015). In
Johnson, the Supreme Court held that imposing an
increased sentence under the residual clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B), violates due process because it is
unconstitutionally vague. The Supreme Court has held that the
Johnson decision is retroactive because it announced
a new substantive rule of constitutional law. Welch v.
United States, 136 S.Ct. 1257, 1268 (2016).
§ 2255 motion is specifically before me for initial
review pursuant to Rule 4(b) of the Rules Governing §
2255 Proceedings for the United States District Courts, which
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States to file
an answer, motion, or other response within a fixed time, or
take other action the judge may order.
28 U.S.C. § 2255 Rule 4(b).
Criminal Case Proceedings
23, 2012, an Indictment was returned against Solano-Fierro,
and two co-defendants, charging him with conspiring to
distribute 500 grams or more of methamphetamine which
contained at least 50 grams or more of pure methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846 (Count 1), distributing a mixture or
substance containing methamphetamine which contained 5 grams
or more of pure methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C) (Count
4), distributing 50 grams or more of methamphetamine which
contained at least 50 grams or more of pure methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A) (Count 6), and possessing, and aiding and
abetting another in the possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. §§ 924(c) and 2 (Count 7).
October 29, 2012, Solano-Fierro appeared before then United
States Magistrate Judge Leonard T. Strand and entered a plea
of guilty to Counts 1, 4, and 6 of the
Indictment. Judge Strand filed a Report and
Recommendation in which he recommended that
Solano-Fierro's guilty plea be accepted. On this same
day, I accepted Solano-Fierro's guilty plea.
Solano-Fierro's sentencing, on February 14, 2013, the
prosecution presented the testimony of Solano-Fierro's
co-defendants that Solano-Fierro had a handgun in his jacket
during a methamphetamine deal, that he possessed the handgun
for protection and security, and that, while he conducted
deals from his home, he kept the gun in sight on the table.
Additionally, evidence was introduced that law enforcement
officers seized a handgun from Solano-Fierro's home.
Sentencing Tr. at 5-19. In light of this evidence, I
increased Solano-Fierro's offense level by two points,
pursuant to United States Sentencing Guideline §
2D1.1(b)(1), for possessing a firearm while committing the
charged offenses. Sentencing Tr. at 22; see United States
v. Garcia, 703 F.3d 471, 475-77 (8th Cir. 2013) (holding
that it was not clearly improbable that the weapon was
connected to the drug offense when guns were located in the
home where drug deals took place). Therefore, I concluded
that Solano-Fierro's total offense level was 40 and that
he was a criminal history category I. The resulting advisory
guidelines sentence was 292 to 365 months' incarceration.
I then took up Solano-Fierro's Motion for Downward
Variance. In arguing for a downward variance,
Solano-Fierro's attorney specifically pointed out
Solano-Fierro's lack of a criminal history, his long-time
methamphetamine addiction, and his attempt to cooperate with
the prosecution. I denied Solano-Fierro's motion. I found
that the nature and circumstances of the offenses outweighed
any of the mitigating factors. Sentencing Tr. at 29. I
sentenced Solano-Fierro to 292 months' imprisonment on
each count, to be served concurrently, and five years of
supervised release on each count, all to run concurrently.
appealed his conviction. In his appeal, Solano-Fierro
contended that I erred in increasing his sentencing offense
level by two points for possessing a firearm while committing
the charged offenses. The Eighth Circuit Court of Appeals
denied Solano-Fierro's appeal. See United States v.
Solano-Fierro, 536 Fed. App'x 666, 667 (8th Cir.
2013). The court of appeals concluded the prosecution had
proved that the gun was connected to the offense within the
meaning of United States Sentencing Guidelines Manual §
2D1.1(b)(1) and, therefore, found that my applying the
two-level increase was warranted. Id.
Petitioner's First § 2255 Motion
subsequently filed a Motion Under § 2255 To Vacate, Set
Aside, Or Correct Sentence By A Person In Federal Custody.
See Solano-Fierro v. United States, C14-4001-MWB
(docket no. 1). In that § 2255 motion, Solano-Fierro
alleged the following claims: (1) that I erroneously
increased his sentencing offense level by two points for
possessing a firearm while committing the charged offenses;
(2) that the drug quantity that I found at his sentencing
violated the United States Supreme Court's decision in
Alleyne v. United States, 133 S.Ct. 2151 (2013); and
(3) his counsel provided ineffective assistance by (a)
failing to object to my drug quantity determination; (b)
failing to object to my applying a three level sentencing
enhancement, pursuant to United States Sentencing Guideline
§ 3D1.1(b); (c) failing to properly advise Solano-Fierro
regarding how the dismissal of Count 7 would affect his
sentencing guidelines range; (d) failing to properly research
the law before Solano-Fierro's guilty plea concerning the
determination of who qualifies as conspiracy participants;
(e) failing to seek the possibility of a written plea
agreement; (f) failing to object to the unconstitutional
aggravating factors; and (g) failing to raise all issues on
the appointment of counsel and briefing, I denied
Solano-Fierro's § 2255 motion. See Solano-Fierro
v. United States, C14-4001-MWB (docket no. ...