Opinion
2:11-cr-00356-KJM
02-15-2023
United States of America, Plaintiff and Respondent, v. Sergio Mendez, Defendant and Movant.
ORDER
Defendant Sergio Mendez moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See generally Mot., ECF No. 388. He argues he received ineffective assistance from his attorney during plea negotiations and sentencing. As explained in this order, the motion is denied. Mendez has not shown a reasonable probability of a different outcome if he had received the assistance he argues was due, as necessary under Strickland v. Washington, 466 U.S. 668, 694 (1984).
I. BACKGROUND
The government indicted Mendez in 2011 for his role in a conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. See generally Indictment, ECF No. 10. His appointed attorney, Michael Chastaine, negotiated with prosecutors and met with Mendez and a Spanish-language interpreter to discuss his options and potential outcomes. Chastaine Decl. ¶¶ 3-4, ECF No. 428-1. Mendez ultimately decided to plead guilty even though he did not reach an agreement with the government. Id. ¶ 4. This allowed him to retain his rights to an appeal. Id.
The court held a change-of-plea hearing in 2013. See Mins., ECF No. 110; Plea Hr'g Tr., ECF No. 211. Mendez was represented by Chastaine and had the assistance of a Spanish-language interpreter during the colloquy. Plea Hr'g Tr. at 3. Mendez told the court he was satisfied with Chastaine's assistance. See id. at 8. He confirmed he had discussed his options with Chastaine and had decided to plead guilty because he “did what is said there.” Id. The court summarized the sentencing exposure Mendez would face if he pleaded guilty, including “a minimum ten years up to life imprisonment” for two of the charges and “a minimum five years up to 40 years imprisonment” for the third charge. Id. at 11. He said he understood. Id. Mendez also understood how the actual length of his sentence would be set; he had discussed it with his attorney. Id. at 13-14. After confirming Mendez was forgoing his trial rights, after reviewing the elements of the charges against him, and after he agreed he had done what the government alleged, the court formally took his guilty plea and scheduled a sentencing hearing. See id. at 1322.
The probation office prepared a Presentence Investigation Report for the court, and Mendez reviewed it with Chastaine and an interpreter. See Sent. Hr'g Tr. at 9-10, ECF No. 208. The court held a sentencing hearing a few months later. See Mins., ECF No. 139. A significant portion of this hearing was devoted to two letters Mendez had written to the court. See Sent. Hr'g Tr. at 3-9; Letter Translation, ECF No. 132-2. In these letters, he asked the court to consider the desperate circumstances that had driven him to violate federal drug laws, the relatively minor role he had played, his family, and his hope for a light sentence or clemency. See Sent. Hr'g Tr. at 12-13, 17-25 (discussing the letters' contents). His attorney similarly underscored Mendez's poverty and his role as a “front man” rather than a “kingpin.” See, e.g., id. at 20-25. Chastaine acknowledged these arguments were not “strictly legal.” Id. at 24. He proposed a sentence of fifteen years. Id. at 24. The court imposed a sentence of 262 months' imprisonment, or nearly 22 years -- the bottom of the Guidelines range -- based in part on Mendez's acceptance of responsibility, poverty, role in the offense, possession of a loaded firearm, and previous narcotics offense. See id. at 27-28. Mendez pursued an unsuccessful appeal with the assistance of appointed counsel. See Mem. Disp., United States v. Mendez, No. 13-10443 (9th Cir. Feb. 29, 2016), Dkt. No. 55-1.
The Circuit's mandate issued in April 2016. ECF No. 368. In June, Mendez filed a pro se motion to set aside or correct his sentence under 28 U.S.C. § 2255. ECF No. 371. The court referred the matter to the Office of the Federal Defender to advise whether it would represent Mendez in connection with his motion. ECF No. 372. In November, Mia Crager, Assistant Federal Defender, appeared as Mendez's counsel and dismissed his § 2255 motion voluntarily on his behalf. ECF Nos. 385, 386, 387. In December, Mendez filed a second § 2255 motion, Mot., ECF No. 388, and Crager withdrew, ECF No. 389; Min. Order, ECF No. 390. This second motion is pending.
Mendez raises two arguments. First, he claims he did not receive effective assistance from Chastaine in pursuing a plea agreement with the government. Mot. at 4-5. He argues, for example, that Chastaine did not press a claim that Mendez was only a “middle man” and did not show the government his gun had been out of reach under the seat. Id. at 4. Second, Mendez argues Chastaine provided ineffective assistance during sentencing. See id. at 5-6. He claims Chastaine should have objected to the Presentence Investigation Report's conclusions about his criminal history, the effects of his previous conviction for illegally entering the United States, and the potential for downward departures. See id.
A little more than three months after Mendez filed his second motion, he requested permission to supplement it. See Mot. Suppl., ECF No. 395. The court granted that request. ECF No. 396. Mendez also moved to appoint counsel, and the court granted that motion as well. ECF Nos. 397, 398. Erin Radekin, a CJA panel attorney, was appointed. ECF No. 400. The court allowed Mendez to amend his new motion, ECF No. 411, but Radekin then gave notice Mendez would not file a supplement, ECF No. 420. Despite that notice, and despite Radekin's status as his appointed counsel, Mendez filed two additional briefs on his own behalf raising several new claims. ECF Nos. 424, 427. These briefs also include arguments that might be construed as complaints about Radekin's assistance, see ECF Nos. 429, 433, so the court granted her motion to withdraw, ECF Nos. 433, 434. The government filed its opposition during the same period. See generally Opp'n, ECF No. 428. After Radekin withdrew, the court appointed Benjamin Ramos, ECF No. 435, who filed a reply on Mendez's behalf, see generally Reply, ECF No. 438. The matter is now submitted for decision.
Before turning to the motion, the court addresses the supplements Mendez filed on his own behalf while he was represented by appointed counsel. Litigants represented by counsel may not file legal memoranda and other documents on their own behalf. See, e.g., United States v. Arceneaux, No. 03-0371, 2019 WL 422562, at *1 (E.D. Cal. Feb. 4, 2019), Findings & Recommendations adopted, 2019 WL 1572244 (E.D. Cal. Apr. 11, 2019); Rodrigues v. Barnes, No. 12-2831, 2013 WL 4505590, *3 (N.D. Cal. 2013). This court appointed counsel to represent Mendez at his request, and an attorney's role is to provide “assistance” to the client. McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018). Attorneys provide assistance by deciding “what arguments to pursue,” among other things. Id. (quoting Gonzalez v. United States, 553 U.S. 242, 248 (2008)). For that reason, the court will not consider the arguments Mendez pursued on his own while he was represented, as district courts commonly decline to do. See, e.g., Ransom v. Herrera, No. 11-01709, 2019 WL 3817579, at *1 n.1 (E.D. Cal. Aug. 14, 2019) (disregarding pro se filings by represented person); Arceneaux, 2019 WL 422562, at *1 (striking pro se filings by represented defendant).
II. LEGAL STANDARD
Mendez claims Chastaine, the attorney who represented him during plea negotiations and sentencing, provided unconstitutionally ineffective assistance. There is no dispute Mendez was entitled to the effective assistance of an attorney at both points. See, e.g., Missouri v. Frye, 566 U.S. 134, 144 (2012) (plea negotiations); Wiggins v. Smith, 539 U.S. 510, 521 (2003) (sentencing). He is entitled to relief if he satisfies the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). First, he must show Chastaine's representation “fell below an objective standard of reasonableness” as measured against the “prevailing professional norms” of the legal community, reflected in “American Bar Association standards and the like.” Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688). Second, he must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
III. DISCUSSION
It is not necessary to decide whether Chastaine's representation fell short of professional standards because Mendez cannot satisfy the second part of the Strickland test, i.e., showing “a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Frye, 566 U.S. at 147.
Mendez makes two sets of arguments-one related to Chastaine's representation during plea negotiations and the other related to representation during sentencing. The first set relates to Chastaine's representation during plea negotiations. He claims Chastaine should have persuaded prosecutors that he “was only the middle man,” and he argues Chastaine did not emphasize “that the gun found in his car was in a secured compartment under the seat,” which made it practically inaccessible. Mot. at 4.
The record shows a more favorable result was not reasonably likely. Mendez does not dispute that he did what the government alleged, as summarized above. His role in the transaction and the gun's location were no secret. In fact, Chastaine had persuaded prosecutors “not to file the prior against Mr. Mendez and not to seek a leadership role” during plea negotiations. Chastaine Decl. ¶ 3. The government also confirmed on the record that it had pursued less severe charges and a lighter punishment for Mendez because he was not the supplier. See, e.g., Sent. Hr'g Tr. at 11 (acknowledging Mendez was not “an organizer or a leader” but emphasizing “Mr. Mendez was the most serious of the offenders” apprehended).
The record also lacks evidence showing a particular government offer might have been on the table. Nor does Mendez claim he would have asserted his right to a trial. His claims are instead hypothetical: the government might have made a better plea offer, and he might have accepted it. See Mot. at 4. Mendez concedes he can cite no evidence in the record to show “counsel committed any prejudicial errors while advising [him].” Reply at 10. He cannot succeed by relying on generic claims about what might have been different. See, e.g., Grisby v. Blodgett, 130 F.3d 365, 372-73 (9th Cir. 1997) (rejecting “speculative” claim of prejudice); Cooks v. Spalding, 660 F.2d 738, 740 (9th Cir. 1981) (same).
Mendez's second set of arguments concerns Chastaine's assistance during sentencing. To begin, he argues Chastaine did not object “to points added in the Presentence Investigation Report (PSR) as to his criminal history.” Mot. at 5. He argues the Ninth Circuit “repudiated” the addition of these points in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), and he cites the Supreme Court's decision in Johnson v. United States, 576 U.S. 591 (2015). Chastaine could not have relied on Dimaya or Johnson, as both were decided two years after Mendez was sentenced, so Mendez has not shown Chastaine's assistance was ineffective in this respect. Similarly, Mendez argues Chastaine wrongly “failed to object to the PSR's two levels added for the illegal reentry conviction.” Mot. at 5. He claims the Sentencing Guidelines have been amended “to avoid having to include these types of additional points.” Id. It is unclear what amendments Mendez is relying on, but it is not necessary to investigate further. Mendez does not claim these amendments were available to Chastaine at the time.
Mendez also argues Chastaine should have helped him take advantage of a “fast track” program under section 5K3.1 of the Sentencing Guidelines. Mot. at 5. “Fast-track sentencing programs originated with federal prosecutors in states bordering Mexico, who were faced with increasing numbers of illegal reentry and other immigration cases.” United States v. Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005); see also Memorandum for All United States Attorneys from James M. Cole, Deputy Attorney General (Jan. 31, 2012) (Cole Memo).Defendants accused of certain immigration offenses could plead guilty and waive certain rights in exchange for a different charge or a prosecutor's promise to recommend a downward departure. See United States v. Heredia, 768 F.3d 1220, 1225 (9th Cir. 2014). Congress and the Sentencing Commission later authorized downward departures expressly. See Morales-Chaires, 430 F.3d at 1127. Under section 5K3.1 of the Sentencing Guidelines, “[u]pon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides.” U.S.S.G. 5K3.1 (2012).
https://www.justice.gov/sites/default/files/dag/legacy/2012/01/31/fast-track-program.pdf (last visited Feb. 14, 2023). The court takes judicial notice of this memorandum on its own motion as an undisputed matter of public record. See Daniels-Hall v. Nat'lEduc. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010).
The 2012 Sentencing Guidelines Manual applied in this case. See Presentence Investigation Report at 10, ECF No. 132.
The record does not include evidence to suggest a fast-track departure might have been available to Mendez. The prosecution did not pursue a charge for illegal reentry under 8 U.S.C. § 1326, “the largest category of cases authorized for fast-track treatment.” Cole Memo at 3. Prosecutors also commonly limit participation in fast-track programs based on previous drug trafficking convictions, and Mendez had previously been convicted of another felony drug offense. See id.; PSR at 12, ECF No. 132. In addition, a defendant must ordinarily agree to a number of conditions before participating in a fast-track program. Cole Memo at 3-4. For example, prosecutors may require defendants to waive appeals and post judgment collateral attacks, id., which Mendez decided not to do. He has not shown he would have accepted conditions such as these. Again, generic claims about what might have happened and hopes for a better outcome do not support his motion. See, e.g., Grisby, 130 F.3d at 372-73; Cooks, 660 F.2d at 740.
Finally, Mendez suggests in his reply that Chastaine misled him about how long his prison sentence was likely to be. See Reply at 13-20. This claim is not in his motion, but the record does not support it in any event. The court warned Mendez before he changed his plea that he faced a minimum sentence of ten years imprisonment and a maximum sentence of up to life imprisonment, and explained the Sentencing Commission's now-advisory ranges. Plea Hr'g Tr. at 11, 13-14. Mendez confirmed he had discussed sentencing with Chastaine, and Mendez said he understood that “regardless of any estimate that Mr. Chastaine may have given [him, the court] is the one that ultimately decides what the guideline range is . . . whether or not to depart from that range, whether or not to go above or below it, and that's [the court's] decision alone[.]” Id. at 13-14.
IV. CONCLUSION
Mendez has not shown by a reasonable probability that the result of his proceedings would have been different, so under Strickland v. Washington, this court cannot grant his motion. The motion to vacate or set aside (ECF No. 388) is denied.
IT IS SO ORDERED.