Opinion
No. 2:99-CV-780C
January 27, 2003
ORDER
On November 12, 1999, in Case No. 2:98-CR-00056C, Petitioner Jose Jesus Cromez-Aguayo pled guilty to illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. On February 22, 1999, the court adopted the factual findings and guideline application in the presentence report. After hearing arguments from the government and the defendant, the court sentenced Gomez-Aguayo to 77 months imprisonment, followed by 36 months of supervised release.
This matter is now before the court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Gomez-Aguayo, proceeding pro se, requests an evidentiary hearing and contends primarily that he was denied effective assistance of counsel. Specifically, Gomez-Aguayo claims that his attorney was ineffective in failing 1) to challenge alleged errors in awarding criminal history points in his presentence report, and 2) to seek downward departure on the basis of Gomez-Aguayo's alien status and willingness to be deported. In its analysis below, the court addresses the merits of these underlying claims by way Gomez-Aguayo's ineffective assistance of counsel claim.
The court recognizes that pro se litigants' pleadings should be construed more liberally than if outside counsel had drafted them. Haines v. Kerner, 404 U.S. 519, 520 (1972); Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Nonetheless, even under this more lenient standard, Gomez-Aguayo's claims for relief are meritless. For the reasons set forth below, both Petitioner's request for an evidentiary hearing and his motion to vacate are DENIED.
Analysis
I. Evidentiary Hearing
Gomez-Aguayo has requested an evidentiary hearing on this § 2255 motion. The law of this circuit holds that evidentiary hearings are not necessary where the petitioner's claims are "capable of review from the record of the proceedings alone." United States v. Wallgren, 2003 WL 77730, at *1 (10th Cir. Jan. 10, 2003) (citing Machibroda v. Unites States, 368 U.S. 487, 494-95 (1962)); Unites States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988). In a decision to dismiss a § 2255 motion summarily, without an evidentiary hearing, a district court must review the records in the case before making its decision, and further must "enumerate the issues raised by the prisoner, and explain the reasons for that action." Marr, 856 F.2d at 1472-73. In Gomez-Aguayo's case, this court has reviewed the pleadings and the relevant records (particularly the presentence report Gomez-Aguayo challenges), and based on the enumeration and analysis of the issues below, has determined that no evidentiary hearing is necessary to decide his § 2255 motion.
II. Ineffective Assistance of Counsel
To demonstrate ineffective assistance of counsel, "a petitioner must establish both that his attorney's representation was deficient and that he was prejudiced by that deficiency." James v. Gibson, 211 F.3d 543, 555 (10th Cir. 2000), cert. denied, 531 U.S. 1128 (2001) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The standard applies to sentencing proceedings and plea hearings as well as at trial. United States v. Glover, 97 F.3d 1345, 1349 (10th Cir. 1996). To succeed on the deficiency prong, a petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (citing Strickland, 466 U.S. at 689). "Judicial scrutiny of counsel's performance is highly deferential." Id. To succeed on the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694). There is a strong presumption that counsel provided effective assistance, and a § 2255 petitioner has the burden of proof to overcome that presumption. Id. A. Failure to Dispute the Assessment of Criminal History Points for a Reckless Driving Conviction and a No Insurance Conviction
Gomez-Aguayo argues that his defense counsel was ineffective for not disputing the assessment of criminal history points for two convictions, a reckless driving conviction and a driving without insurance conviction. Gomez-Aguayo is correct in pointing out that, under USSG § 4A1.2(c), the reckless driving conviction should not have been counted. Nonetheless, an adjustment correcting the pre-sentence report (PSR) does not affect his criminal history category. It is apparent from the PSR that the petitioner did not receive a sentence of thirty days for this offense, nor did he receive a period of probation of over one year as is required to include a reckless driving conviction. A correction to the PSR reflecting this change would reduce petitioner's criminal history points from fourteen to thirteen, but it would not take him out of criminal history category VI. On this ground, petitioner cannot show that he suffered any prejudice from this computation error.
Petitioner's other criminal history challenge, concerning his conviction for "no insurance," is also invalid. Under USSG § 4A1.2(c), all misdemeanor convictions not listed must be counted when computing the criminal history category ("Sentences for misdemeanor and petty offenses are counted, except as follows:"). Gomez-Aguayo attempts to analogize his "no insurance" conviction to "driving without a license or with a revoked or suspended license," an offense listed as an exception under USSG § 4A1.2(c). But his analogy is without merit. The offense of "no insurance" is not explicitly listed as an exclusion, and no argument for adjustment need have been made by Gomez-Aguayo's counsel. Gomez-Aguayo therefore cannot demonstrate that his attorney's failure to make such an argument was deficient or that there was any resulting prejudice.
Additionally, Gomez-Aguayo raises a number of related arguments that he alleges his counsel could have made. First, he argues that his conviction for "retail theft" should not have been counted in his criminal history because (1) he only served one day in jail and had a six-month probation period imposed, and (2) this penalty is "no more serious as to [its] sentences or nature than are charges for prostitution, reckless driving, passing an insufficient fund check, and leaving the scene of an accident." (Pl's Mem. Supp. § 2255 Mot., 6-7). Again, Gomez-Aguayo's attempt to analogize his "retail theft" conviction to non-countable offenses must fail. The offense of "retail theft" is not explicitly listed as an exception under USSG § 4A1.2(c), and counsel's failure to argue against its inclusion was not deficient performance. Second, Gomez-Aguayo argues that his attorney should have explored whether he was represented by counsel on certain counted offenses. This argument is without merit because Gomez-Aguayo fails to allege any defect in the prior convictions or any resulting prejudice. Finally, Petitioner advances the novel argument that his conviction for "Attempted Distribution of a Controlled Substance" may be invalid since Utah "may" have criminalized the act of drug distribution and not the attempt. Where Gomez-Aguayo offers no legal basis for this argument, his counsel was not deficient for failing to explore this claim. And again, Gomez-Aguayo cannot show that he suffered any prejudice by the absence of this argument.
Gomez-Aguayo also contends that his attorney failed to investigate the validity of the offenses listed in his PSR, particularly "whether the offenses listed were supported by judgments of conviction." (Pl's Mem. Supp. § 2255 Mot., 10) Although, as Gomez-Aguayo points out, the listed offenses lack details on the circumstances of his various convictions, the PSR clearly recites dates and dispositions of sentences with respect to each offense. Furthermore, Gomez-Aguayo fails to allege that he was not convicted of any of the listed offenses.
B. Failure to Argue that Gomez-Aguayo's Status as a Deportable Alien and Willingness to be Deported were Signficant Mitigating Factors to be Considered in Sentencing
Gomez-Aguayo maintains that counsel failed to argue for downward departure. According to Gomez-Aguayo, downward departure was warranted both (1) to adjust for the disparity in sentencing United States citizens and deportable aliens (pointing in particular to the availability of a one-year sentence decrease to citizens who successfully complete the drug-abuse program), and (2) because he was willing to be deported. In support of this argument, Gomez-Aguayo cites United States v. Smith, which held that "a downward departure may be appropriate where the defendant's status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence." 27 F.3d 649, 655 (D.C. Cir. 1994). However, his reliance on the Smith decision is misplaced.
Gomez-Aguayo correctly points out that the sentencing court can depart downward from the sentencing guideline range under USSG § 5K2.0 if there is a "mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." Where, as here, an offender characteristic or circumstance is not, in the Commission's view, ordinarily relevant to the question of whether downward departure is warranted, it may become relevant if that characteristic or circumstance "is present to an unusual degree and distinguishes the case from the 'heartland' cases covered by the guidelines." USSG § 5K2.0; Koon v. United States, 518 U.S. 81, 93 (1996). Gomez-Aguayo's circumstances are clearly not outside the heartland where deportability and status as a deportable alien are by definition circumstances foreseen by the Sentencing Commission. Gomez-Aguayo pled guilty to 8 U.S.C. § 1326, which prohibits reentry of a person legally deported on a prior occasion without permission of the Attorney General. When the crime for which a defendant was sentenced is re-entry of the United States after having been deported, status as a deportable alien may not be considered as a factor militating in favor of downward departure. United States v. Gonzales-Portillo, 121 F.3d 1122, 1124 (7th Cir. 1997); See also, United States v. Martinez-Ramos, 1999 WL 548289 (9th Cir. 1999) (holding alien status cannot be ground for downward departure because deportable alien status is an element of a § 1326 violation). It is on this point that Smith's holding is distinguishable. In that case, the sentence imposed was for drug-trafficking, not for illegal reentry. At least four circuit courts have distinguished Smith on that basis. United States v. Vasquez, 279 F.3d 77, 81 (1st Cir. 2002); United States v. Garay, 235 F.3d 230, 233 (5th Cir. 2000); Gonzales-Portillo, 121 F.3d at 1125; United States v. Ebolum, 72 F.3d 35 37 (6th Cir. 1995). Because Gomez-Aguayo's "deportable" alien status is an inherent element of the crime to which the guideline applies, unquestionably foreseen by the Sentencing Commission, it cannot be a mitigating factor for downward departure purposes. His counsel was thus not deficient in his choice not to raise this issue.
Equally flawed is Gomez-Aguayo's argument that he has been deprived the sentencing benefits of participation in the drug-abuse program. Because Gomez-Aguayo was not convicted of a drug offense, the drug-abuse program was not available to him. Thus, his argument that he has suffered harsher conditions of incarceration as a result of his alien status fails, and he again cannot demonstrate either deficiency or prejudice as required by Strickland.
A similar analysis is appropriate in consideration of Gomez-Aguayo's argument that his willingness to stipulate to deportation warrants a downward departure. As an alien convicted of an aggravated felony, he has no defense to deportation. Furthermore, as the plea agreement he entered into clearly noted, the deportation was anticipated as part of that agreement. Under the circumstance where there is no defense to deportation, and the parties have voluntarily entered into an agreement contemplating deportation, Gomez-Aguayo can demonstrate neither deficiency nor prejudice.
Conclusion
For the reasons stated above, Petitioner's motion to vacate is DENIED.