United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
FINAL REPORT AND RECOMMENDATION
CATHERINE M. SAUNAS UNITED STATES MAGISTRATE JUDGE
matters listed in the caption are before the Court on pro
se motions to vacate, set aside or correct sentence
filed pursuant to 28 U.S.C. § 2255 by federal inmates
William Espinoza and Remberto Argueta. See [1416
(Espinoza's § 2255 motion)], [1422 (Argueta's
§ 2255 motion)] & [1431 (Argueta's supplemental
filing)]. For the reasons that follow, I will recommend that
Espinoza and Argueta's § 2255 motions be denied and
that Certificates of Appealability also be denied.
relevant factual and procedural history is as follows:
Espinoza, Argueta, and 24 other defendants were indicted by a
federal grand jury for their conduct associated with [the La
Mara Salvatrucha gang (“MS-13”)]. According to
the indictment, MS-13 is one of the largest street gangs in
the United States, with about 10, 000 members. The indictment
alleged that members of MS-13 have committed various criminal
acts, including murder, robbery, illegal possession of
firearms, and assault. In many instances, MS-13 members
allegedly committed these acts in order to maintain or
increase their position in the gang.
Along with their codefendants, Espinoza and Argueta were
indicted in Count 1 for allegedly violating the conspiracy
provision of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §
1962(d). Count 1 named Espinoza in three overt acts in
furtherance of the conspiracy and Argueta in two. Some of
these overt acts also served as the basis for specific crimes
Espinoza and Argueta allegedly committed while in the gang.
Counts 22 through 25 applied to Espinoza. The indictment
alleged that Espinoza used a gun in an attempted murder on
July 20, 2008 and charged him with committing a violent crime
in aid of racketeering activities (“VICAR”), in
violation of 18 U.S.C. § 1959(a)(5) (Count 22), and
using a firearm in relation to this crime of violence, in
violation of 18 U.S.C. § 924(c) (Count 23). The
indictment also charged Espinoza with aiding and abetting a
VICAR murder on July 22, 2008, in violation of 18 U.S.C.
§ 1959(a)(1) (Count 24), and aiding and abetting the use
of a firearm during this crime of violence, in violation of
18 U.S.C. § 924(c) (Count 25). Espinoza offered to plead
guilty to Counts 1, 22, and 23[, ] but not Counts 24 and 25.
The government rejected this offer.
Counts 16 and 17 applied to Argueta. Count 16 alleged that on
April 13, 2007, Argueta murdered a man, in violation of 18
U.S.C. § 1959(a)(1). Count 17 alleged that Argueta used
a firearm in relation to this crime of violence, in violation
of 18 U.S.C. § 924(c).
Before trial, both defendants filed motions to suppress.
Espinoza moved to suppress a gun and ammunition found after a
warrantless search of his bedroom. He argued, inter
alia, that his roommate's consent to search their
shared room was insufficient to authorize the search of his
personal effects within that room. Argueta's motion to
suppress challenged the admission of statements he made to
Immigration and Customs Enforcement (“ICE”)
agents, asserting that the waiver of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), was
invalid. The magistrate judge considered evidence, described
below . . ., and, after making factual findings, recommended
denying both motions. The district court adopted the
magistrate judge's recommendations over the
Both defendants also objected to the admission of two types
of evidence. First, they objected to evidence of uncharged
gang activity (the “RICO enterprise evidence”),
which the government offered to support the RICO conspiracy
claim. They argued that their offer to stipulate that the
gang was an enterprise for purposes of the RICO conspiracy
claim rendered this evidence inadmissible. Second, invoking
Bruton v. United States, 391 U.S. 123 (1968), the
defendants objected to the admission of evidence that their
codefendants confessed to certain crimes when those
codefendants would not also testify at trial, arguing that
the confessions violated the Confrontation Clause of the
Sixth Amendment to the United States Constitution. The
district court overruled these objections.
After a lengthy joint trial, the jury convicted Espinoza of
one count of RICO conspiracy, one count of VICAR attempted
murder, and one count of use of a firearm in relation to the
crime of violence (Counts 1, 22, and 23, respectively).
Espinoza was acquitted of the charges in Counts 24 and 25. At
sentencing, Espinoza requested a two-level reduction in his
total offense level for acceptance of responsibility under
U.S.S.G. § 3E1.1 in the light of his pretrial offer to
plead to the charges of which he was [convicted]. The
district court denied this request and concluded that the
applicable Sentencing Guidelines range was 188 to 235 months.
The district court did, however, consider Espinoza's
acceptance of responsibility when it addressed the factors
set forth in 18 U.S.C. § 3553(a). The court explained
that, because it did not apply the acceptance of
responsibility reduction, it would sentence Espinoza at the
low end of the guidelines range. With an additional 60 months
tacked on as the statutory minimum for Count 23, the district
court sentenced Espinoza to 248 months' imprisonment and
five years of supervised release.
The jury convicted Argueta on all three charged counts: one
count of RICO conspiracy (Count 1), one count of VICAR murder
(Count 16), and one count of use of a firearm in relation to
a crime of violence (Count 17). For Counts 1 and 16, the
district court sentenced Argueta to concurrent terms of life
imprisonment, and for Count 17, the court sentenced him to an
additional five years' imprisonment to run consecutively.
Argueta also was sentenced to five years of supervised
United States v. Espinoza, 635 Fed.Appx. 739, 741-43
(11th Cir. 2015) (footnotes omitted). Espinoza and Argueta
appealed: “(1) the denial of their motions to suppress
evidence; (2) the admission of the RICO enterprise evidence
and their codefendant's confession; and (3) their
sentences.” Id. at 744-45. Finding no error,
the United States Court of Appeals for the Eleventh Circuit
affirmed. Id. at 745.
and Argueta have now each filed motions to vacate, set aside
or correct their sentences pursuant to 28 U.S.C. § 2255.
See ,  & . Espinoza asserts
two grounds for relief and Argueta raises four grounds for
relief, all of which I have construed liberally because the
movants are proceeding pr ...