Not a Lexis Advance subscriber? Try it out for free.

Varela v. United States

United States Court of Appeals for the Eleventh Circuit

February 17, 2005, Decided ; February 17, 2005, Filed

No. 04-11725 Non-Argument Calendar

Opinion

 [*865]  PER CURIAM:

Victor Varela, a federal prisoner serving a 235-month sentence for conspiracy to possess with intent to distribute five kilograms or more of cocaine, appeals the district court's denial of his counseled 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We granted Varela a certificate of appealability ("COA") on several issues, including the following: "Is Blakely v. Washington, 159 L. Ed. 2d 403, 542 U.S. 296, 124 S. Ct. 2531 (2004), retroactive to cases on collateral review pursuant to Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)?" 1 After review, we affirm the denial of Varela's § 2255 motion.

 [**2] I. BACKGROUND

In January 1998, Victor Varela and several co-defendants were indicted for conspiracy to possess with intent to distribute "five (5) kilograms or more of a mixture or substance containing a detectable amount of cocaine . . . contrary to the provisions of Title 21, United States Code, Section 841(a)(1). In violation of Title 21, United States Code, Section 846."

Varela proceeded to trial, and on May 29, 1998, the jury found Varela guilty. The statutory maximum for the offense in the indictment is 240 months (20 years). 21 U.S.C. § 841(b)(1)(C).

The Presentence Investigation Report ("PSI") calculated that the offense involved 150 kilograms or more of cocaine, which corresponded to a base offense level of 38. See U.S.S.G. § 2D1.1(c)(1) (providing for base offense level of 38 when drug quantity is 150 kilograms or more of cocaine). The PSI indicated that on November 7, 1997, Varela and co-defendant Juan Rodriguez arrived in Tampa, Florida in a rented truck and picked up 150 kilograms of cocaine. Shortly after the pick-up, Florida Highway Patrol stopped the rented [**3]  truck, seized the cocaine, and found Varela in possession of two handguns, which were registered to Rodriguez.

The PSI also recommended a two-level increase for possessing a firearm during the offense, and a two-level minor-role reduction, which offset each other. Thus, Varela's total offense level remained 38. With a criminal history category of I, Varela's applicable sentencing range was 235 to 293 months' imprisonment.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

400 F.3d 864 *; 2005 U.S. App. LEXIS 2768 **; 18 Fla. L. Weekly Fed. C 227

VICTOR VARELA, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee.

Subsequent History: Rehearing denied by, En banc Varela v. United States, 143 Fed. Appx. 310, 2005 U.S. App. LEXIS 20498 (11th Cir. Fla., Apr. 5, 2005)

US Supreme Court certiorari denied by Varela v. United States, 126 S. Ct. 312, 163 L. Ed. 2d 269, 2005 U.S. LEXIS 7143 (U.S., Oct. 3, 2005)

Prior History:  [**1]  Appeal from the United States District Court for the Middle District of Florida. D. C. Docket Nos. 98-0009-CR-T-2, 01-00916-CV-T-26TBM.

United States v. Rodriguez, 207 F.3d 661, 2000 U.S. App. LEXIS 6514 (11th Cir. Fla., 2000)

Disposition: Affirmed.

CORE TERMS

sentence, collateral review, retroactive, cases, district court, kilograms, cocaine, apply retroactively, criminal procedure, drug quantity, maximum

Criminal Law & Procedure, Appeals, Standards of Review, Clear Error Review, Postconviction Proceedings, Motions to Set Aside Sentence, Clearly Erroneous Review, General Overview, Habeas Corpus, De Novo Review, Review, Civil Procedure, De Novo Review, Procedural Defenses, Retroactivity of Decisions, Sentencing, Imposition of Sentence, Factors, Juries & Jurors, Province of Court & Jury, Capital Punishment, Aggravating Circumstances, Trials, Jury Trials, Right to Jury Trial, Adjustments & Enhancements, Criminal History, Constitutional Law, Fundamental Rights, Criminal Process, Defendant's Rights, Right to Jury Trial, Sentencing Guidelines