Opinion
Case No. 02-20011-01-JWL
April 28, 2004
MEMORANDUM AND ORDER
Angel Serrano brings this motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (Doc. 98). Therein, Mr. Serrano alleges that appellate counsel was ineffective for failing to raise on direct appeal his objection to the district court's application of a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1). After thoroughly reviewing Mr. Serrano's pleadings and the record relevant to his claim, the court finds that he is entitled to no relief.
Generally, a court may summarily dismiss a § 2255 petition if the motion and record conclusively show that the petitioner is not entitled to relief. United States v. Housel, 2003 WL 84408, at *1 (D. Kan. Jan. 6, 2003) (citing United States v. Marr, 856 F.2d 1471, 1472-73 (10th Cir. 1988).
Specifically, the preponderance of the evidence at sentencing demonstrated that Mr. Serrano possessed a handgun in close proximity to the area where he stored narcotics and proceeds from his drug trafficking activity, and petitioner did not produce evidence demonstrating that it was clearly improbable that the weapon was connected to the offense. As such, the district court properly applied the enhancement, and appellate counsel's decision not to raise this issue on direct appeal did not violate Mr. Serrano's right to effective assistance of counsel under the Sixth Amendment.
BACKGROUND
On January 28, 2002, after a confidential source informed an officer with the Kansas City, Kansas Police Department Narcotics Division that Angel Serrano intended to sell approximately eight to ten kilograms of cocaine to John Doran, police set up surveillance of Mr. Serrano's residence. United States v. Serrano, 82 Fed. Appx. 607, 608, 2003 WL 22245951 (10th Cir. Oct. 1, 2003). In the early afternoon, Immigration and Naturalization Service Special Agent Tim Ditter observed Mr. Serrano exit his residence and place a duffel bag in his vehicle. Id. Shortly thereafter, he observed Mr. Serrano enter the vehicle and drive away from the residence. A Kansas City, Kansas police officer subsequently stopped Mr. Serrano after observing him make an illegal lane change. Id. During the stop, Mr. Serrano admitted to possessing eight kilograms of cocaine, which officers recovered from inside the duffel bag. Id. In a post-arrest interview, Mr. Serrano admitted that when officers stopped his vehicle, he was en route to deliver the cocaine to Mr. Doran. He also informed officers that they could recover a handgun and $9,000 of United States currency from the master bedroom of his home. The currency constituted proceeds from the sale of cocaine. After Mr. Serrano consented to a search of his residence, officers recovered approximately $9,000 in United States currency from a dresser drawer located in the master bedroom, a .38 caliber Colt firearm and ammunition from the closet in the master bedroom, approximately 25 grams of cocaine from a doorjamb in the master bedroom closet, and approximately 85 grams of cocaine from the pocket of a black leather jacket located in another area of the house.
The government charged Mr. Serrano with one count of possession with intent to distribute more than 5 kilograms of cocaine. Mr. Serrano pleaded guilty to the charge on August 29, 2002. The presentence investigation report ("PIR") attributed approximately 21.9 kilograms of cocaine to Mr. Serrano, resulting in a base offense level of 34. The PIR included a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) based on the discovery of the handgun in proximity to where Mr. Serrano kept narcotics. The PIR recommended a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of 33. The court adopted these recommendations, sentencing Mr. Serrano to a 135-month term of incarceration.
On direct appeal, the petitioner challenged the district court's drug quantity calculation. Mr. Serrano did not challenge the two-level enhancement based on the presence of the weapon at his residence. The Tenth Circuit affirmed the district court's sentence on October 1, 2003. Mr. Serrano timely filed his § 2255 petition on January 9, 2004.
ANALYSIS
Mr. Serrano contends that appellate counsel violated his Sixth Amendment right to effective assistance of counsel by failing to challenge the two-level gun enhancement on direct appeal. The government argues that Mr. Serrano was not prejudiced by appellate counsel's decision because the district court properly enhanced petitioner's sentence under U.S.S.G. § 2D1.1 (b)(1). The court agrees with the government's position.
The government argues that Mr. Serrano's claim is procedurally barred because he failed to raise the issue on direct appeal. This argument is logically flawed because the petitioner's Sixth Amendment claim is founded on this very failure. Additionally, "[a]ttorney error amounting to constitutionally ineffective assistance of counsel constitutes `cause' for a procedural default." Hickman v. Spears, 160 F.3d 1269, 1272 (10th Cir. 1998).
Where, as here "a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issues." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (internal quotation marks and citation omitted). "If the omitted issues are without merit, counsel's failure to raise it does not constitute constitutionally ineffective assistance of counsel." Id. As explained below, the omitted issue was not meritorious.
Here, the trial court properly enhanced Mr. Serrano's base offense level for possessing a weapon during a drug trafficking offense. If a defendant is convicted for an offense involving drugs, the Sentencing Guidelines contemplate a two-level enhancement "[i]f a dangerous weapon (including a firearm) was possessed[.]" U.S.S.G. § 2D1.1(b)(1). The enhancement "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." Id. § 2D1.1 cmnt. n. 3. At sentencing, "[t]he government bears the initial burden of proving possession by a preponderance of the evidence[.]" United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997). "The government may satisfy this burden by showing that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant, or, in other words, mere proximity to the offense." United States v. Pompey, 264 F.3d 1176, 1180-81 (10th Cir. 2001) (quotations omitted). This initial burden is met when the government shows that a weapon was located near the general location where at least part of a drug transaction occurred. United States v. Alexander, 292 F.3d 1226, 1231 (10th Cir. 2002) (quotations omitted). If the government carries its burden, the enhancement is `"appropriate unless the defendant proves the exception-that it is clearly improbable the weapon was connected with the offense.'" United States v. Vaziri, 164 F.3d 556, 568 (10th Cir. 1999) (quoting Smith, 131 F.3d at 1400).
I. Nexus Between the Weapon and the Seized Cocaine
At sentencing, the government satisfied its initial burden of proving that the weapon was located near the general location where Mr. Serrano kept eight kilograms of cocaine that he intended to distribute to Mr. Doran. As explained above, Agent Ditter observed Mr. Serrano exit his residence carrying a dark colored duffel bag and saw him place the duffel bag in the back seat of the vehicle. When Mr. Serrano left his residence in the vehicle, officers stopped his car and recovered approximately eight kilograms of cocaine from inside the duffel bag. In a post-arrest interview, Mr. Serrano admitted that he was en route to deliver the cocaine to his co-defendant, Mr. Doran. Officer Santiago Vasquez further testified that Mr. Serrano had been under constant surveillance from the time he left the residence until the time he was stopped, eliminating the possibility that the cocaine was placed inside the duffel bag after Mr. Serrano left the residence. Moreover, Officer Vasquez testified that he recovered a .38 caliber handgun and ammunition from inside a cowboy boot located in the master bedroom closet of Mr. Serrano's residence. The district court properly concluded from this evidence that the government satisfied its initial burden to show a relationship between the drug transaction, the weapon and Mr. Serrano. See United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997) (finding enhancement appropriate where undisputed evidence established that semiautomatic firearm was found in the garage near the entrance to the drug lab); United States v. Contreras, 59 F.3d 1038, 1040 (10th Cir. 1995) (affirming district court finding that weapon was connected to drug offense where .22-caliber rifle was found under a couch in a living room of the house and agents also found approximately 238 pounds of marijuana in an attached garage approximately twenty-five feet from where the gun was found); United States v. Nguyen, 1 F.3d 972, 973 (10th Cir. 1993) (affirming enhancement despite fact that weapon was wrapped in towel, inside a guitar case, which was stored in a closet of the apartment where drug transactions occurred).
At sentencing, Mr. Serrano argued that his supplier delivered the cocaine to him in the duffel bag, and that he immediately placed it in the back seat of his vehicle and never brought the contraband into the house. The court found Agent Ditter's testimony to be more credible, in part, because it is unlikely that Mr. Serrano would have left approximately $120,000 worth of cocaine exposed to the public in the back seat of his car for several hours (between the time he received the supply to the time he left to distribute it to Mr. Doran). The court articulated several other reasons for its belief that Agent Ditter's testimony was more credible than Mr. Serrano's. The Tenth Circuit has explained that "the district court's determination of a witness's credibility at a sentencing hearing is virtually unreviewable on appeal." United States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003) (quotations and citations omitted).
In his reply to the government's response, Mr. Serrano argues that the record only evidences the fact that officers observed him leave his residence with a gym bag. He contends that the "record does not state whether [or not] the drugs were subsequently discovered in the gym bag." This misstates the record. Agent Ditter testified that the duffel bag contained approximately eight kilograms of cocaine, and Mr. Serrano testified that his supplier delivered the cocaine to him in the duffel bag. Mr. Serrano also argues that the record does not exclude the possibility that he acquired the drugs after departing his residence, but before law enforcement officials stopped his vehicle. However, Officer Vasquez testified that Mr. Serrano was under constant surveillance from the time he left his residence until the time he was stopped, and Mr. Serrano testified that the drugs were in the duffel bag at the time he left his residence.
Mr. Serrano makes much of the fact that officers discovered the cocaine inside his vehicle, which was located several miles from the residence where officers subsequently located the firearm. This fact, however, is not a controlling factor in determining whether the enhancement should apply. The weapon enhancement is "designed to reflect the increased danger of violence when drug traffickers add firearms to the mix." United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998) (citing United States v. Contreras, 59 F.3d 1038, 1040 (10th Cir. 1995)). "Although in many cases the weapon will be involved with some sort of illegal transaction, it is not necessary for the Government to show that drugs and money changed hands near the weapon; the weapon may simply serve as a potentially deadly means of protecting the trafficker's goods, thereby increasing the danger of violence." Alexander, 292 F.3d at 1231 (citing Flores, 149 F.3d at 1280). Thus, "[t]he necessary nexus between the weapon, drug trafficking and defendant may be established by showing that the weapon was located nearby the general location where drugs or drug paraphernalia are stored or where part of the transaction occurred." Alexander, 292 F.3d at 1231 (quotations omitted). Here, the preponderance of the evidence at sentencing demonstrated that the weapon was located near the general location where Mr. Serrano stored the narcotics. As such, the district court properly applied the enhancement.
Mr. Serrano relies on several cases to support his argument that there was an insufficient nexus between the weapon and the contraband in this case. First, Mr. Serrano relies on United States v. Apple, 915 F.2d 899 (4th Cir. 1990). In Apple, the district court applied the enhancement based solely on the mere presence of the weapon in the defendant's home. Id. at 915. The Fourth Circuit remanded the decision to the district court after explaining that the Sentencing Commission did not intend to apply the enhancement based solely on the presence of a weapon in a defendant's home. Id. Here, however, the district court did not enhance Mr. Serrano's sentence merely because: (1) he was convicted of a drug crime; and (2) he possessed a weapon within his residence. Instead, the preponderance of the evidence established a temporal and spatial connection between the gun, Mr. Serrano, and the eight kilograms of cocaine he attempted to deliver to Mr. Doran.
Second, Mr. Serrano relies on United States v. Hall, 20 F.3d 1084 (10th Cir. 1994) for the proposition that the spatial proximity between the contraband and the weapon was insufficient to support the enhancement in this case. In Hall, however, the Tenth Circuit examined the sufficiency of the evidence pertaining to a violation of 18 U.S.C. § 924(c)(1) (using or carrying a firearm during or in relation to a drug trafficking crime). It did not address whether the facts supported an enhancement under § 2D1.1(b)(1). There, the Tenth Circuit recognized that a defendant "uses" a firearm for purposes of this statute when it is readily accessible, an integral part of the criminal undertaking, and it increases the likelihood that the crime will succeed. Id. at 1088-89. Because the gun was located on the top shelf of a closet in a bedroom on the top floor of a tri-level house and the drugs were found on top of the refrigerator on the main level of the house, the court concluded that the weapon was neither readily accessible, nor integral to the success of the transaction. Id. at 1089-90. Unfortunately for Mr. Serrano, the district court need not find that a weapon is readily accessible, an integral part of the drug crime, or that it helped the criminal venture to succeed to apply the enhancement under § 2D1.1(b)(1). See United States v. Mendoza, 118 F.3d 707, 709-10 (10th Cir.), cert. denied, 522 U.S. 961 (1997) (explaining that enhancement is permissible even if conviction under § 924(c) cannot be sustained). Instead, the government satisfies its initial burden of proof by showing possession by the preponderance of the evidence. For the reasons stated above, the government satisfied that burden at sentencing and Hall is inapposite.
Finally, Mr. Serrano relies on United States v. Cooper, 274 F.3d 230 (5th Cir. 2001), to support his argument that the enhancement should not apply. In Cooper, defendant Faulk was arrested and a gun was seized from his vehicle. Officers did not recover any heroin from the vehicle, and the government produced no evidence linking the car to the heroin trafficking relevant to the charged conspiracy. Id. at 245. As such, Mr. Faulk argued that the district court erred by applying the enhancement. The Fifth Circuit agreed explaining that while "[it] is true that Faulk possessed the gun at a point in time during which the government charged that the conspiracy was still in progress . . . our research has revealed no cases in which the enhancement was applied without drugs being found with the weapon or evidence presented that the location of the weapon was used in connection with drug trafficking activities." Id. at 246. The facts in Cooper are easily distinguished from Mr. Serrano's case. Here, the government demonstrated that Mr. Serrano kept the eight kilograms of cocaine inside his residence on the day that he attempted to deliver the contraband to Mr. Doran. The government also demonstrated that the weapon was located inside the residence during that same time period. Thus, unlike Cooper, where the government failed to establish a spatial and temporal nexus between the weapon and the contraband, the preponderance of the evidence presented at Mr. Serrano's sentencing established such a connection.
II. Nexus Between Weapon and Drug Proceeds
Even if the preponderance of the evidence failed to establish a sufficient nexus between the cocaine, the weapon, and Mr. Serrano (an assumption the court entertains for analytical purposes only), the government also tied the weapon to the proceeds of Mr. Serrano's drug trafficking activity. In a post-arrest interview, Mr. Serrano informed officers that they could recover a handgun and proceeds from his drug transactions from his bedroom. Indeed, during the course of searching Mr. Serrano's residence, officers recovered $9,000 of United States currency from a dresser drawer located inside the master bedroom; the same bedroom where the weapon was recovered inside a closet. At the sentencing hearing the court concluded that the enhancement under § 2D1.1(b)(1) was justified in light of the relationship between the weapon and the drug proceeds. In his § 2255 petition, Mr. Serrano does not challenge the court's factual finding that the weapon was located in spatial and temporal proximity to the drug proceeds, or it's legal conclusion that the enhancement was proper in light of this fact.
Even if Mr. Serrano had challenged this legal conclusion, the omitted issue would not have prevailed on direct appeal. See United States v. Thomas, 294 F.3d 899 (7th Cir. 2002) (proximity of weapon to drug proceeds provides a sufficient nexus to conclude that it was not clearly improbable that the gun was connected with the offense); United States v. Johnson, 227 F.3d 807, 814 (7th Cir. 2000) (same); United States v. Edmonds, 9 Fed. Appx. 330, 332, 2001 WL 523461, at *2 (6th Cir. May 8, 2001) (explaining that proximity of weapon to drugs, proceeds or paraphernalia is relevant factor in determining whether enhancement applies); United States v. Carmona, 205 F.3d 1325, 2000 WL 234473, at *2 (2d Cir. Feb. 1, 2000) (finding enhancement not clearly erroneous where gun and $200,000 were located in apartment). While the Tenth Circuit has not squarely addressed this issue, the court believes that it would also conclude that the enhancement should apply where a weapon is found in close proximity to drug proceeds. The court's reasoning in United States v. Cline, 75 Fed. Appx. 727, 2003 WL 22138995 (10th Cir. Sep. 17, 2003) is instructive. In Cline, the defendant pled guilty to a one-count information charging her with interstate travel with the intent to promote the unlawful distribution of pseudoephedrine, knowing or having reasonable cause to believe that it would be used to manufacture methamphetamine, in violation of 18 U.S.C. § 1952(a)(3). Id. at 728. Ms. Cline owned and operated a lingerie store in Baxter Springs, Kansas. Id. After selling large quantities of pseudoephedrine from her store to undercover agents, law enforcement officials obtained a warrant to search her home in Quapaw, Oklahoma. Id. During the search, officers recovered approximately sixteen firearms, including a loaded 9mm semi-automatic weapon found in her purse. Located near the purse were various items relating to her business, including store receipts and a bank deposit bag containing cash proceeds from the business. Id. The district court applied the two-level enhancement found at § 2D1.11(b)(1) reasoning that Ms. Cline possessed a dangerous weapon. In applying the enhancement, the district court relied, in part, on the proximity between the gun and the bank deposit bag that contained more than $1,500 in cash. Id. at 729. Based on this and other evidence, the Tenth Circuit found that the district court reasonably inferred that Ms. Cline possessed the gun during the offense for which she was charged. Id. at 729-30. Thus, in Cline, the Tenth Circuit found that the proximity between a weapon and the proceeds of illegal activity was a relevant factor in determining whether to apply the two-level weapon enhancement. The court believes that the Tenth Circuit would apply the same reasoning to the facts of this case.
The language used for the weapon enhancement at § 2D1.11(b)(1) is identical to the language used for the enhancement at § 2D1.1(b)(1).
III. Mr. Serrano's Evidence that it was Clearly Improbable that the Weapon was Related to Drug Trafficking
As explained above, once the government satisfies its initial burden, the enhancement will apply unless a defendant can show that it was clearly improbable that the weapon was connected with the offense. At sentencing, Mr. Serrano testified that his neighbor gave him the weapon so that he could fix a defective trigger that rendered the gun inoperable. Based on this testimony, Mr. Serrano believed that it was clearly improbable that the weapon was connected with the offense. On collateral review, however, Mr. Serrano does not raise this issue.
Even if the court were to construe his petition to include this defense, it would not have prevailed on direct appeal. At sentencing, Officer Vasquez testified that the weapon was operable and that the trigger did not appear to be bent in the manner described by Mr. Serrano. Mr. Serrano also recognized at sentencing that the trigger was in working condition, but suggested that the officers must have repaired it subsequent to his arrest. Officer Vasquez, however, testified that law enforcement authorities did not repair the trigger and that the weapon did not show any evidence of repair. The district court found that the officers' testimony was more credible than Mr. Serrano's. Moreover, the court found Mr. Serrano's version of the events surrounding his acquisition of the gun (that he obtained it to repair the trigger) was inconsistent with the fact that law enforcement officials also seized .38 caliber ammunition near the handgun. That is, if he acquired the weapon only to repair the trigger action, the court questioned why he also acquired .38 caliber ammunition for the gun. The court concluded from the preponderance of the evidence at sentencing that the more likely explanation was that Mr. Serrano acquired the weapon for the conventional reasons why people involved in drug trafficking come into possession of such items: to protect their drugs or proceeds. These factual findings were supported by the record, and, therefore, were not clearly erroneous. United States v. Vaziri, 164 F.3d 556, 568 (10th Cir. 1999) (noting that the Tenth Circuit reviews factual findings under U.S.S.G. § 2D1.1(b)(1) for clear error). Thus, Mr. Serrano has failed to demonstrate that it was clearly improbable that the weapon was connected to his drug trafficking activity.
CONCLUSION
In the end, the preponderance of the evidence demonstrated that on the day that Mr. Serrano attempted to distribute approximately eight kilograms of cocaine to Mr. Doran, he stored the cocaine in the residence where he kept his .38 caliber handgun. Moreover, the handgun was located in close proximity to proceeds from his drug trafficking activities. In addition, Mr. Serrano has not established that it was clearly improbable that the weapon was not tied to the drug transactions. Thus, the court properly enhanced Mr. Serrano's sentence under § 2D1.1(b)(1). Because the court properly enhanced Mr. Serrano's sentence, appellate counsel was not ineffective for making the strategic decision not to raise this issue on appeal.
Mr. Serrano also argues that the probation department erroneously concluded that if the firearm enhancement was not applicable, Mr. Serrano was still subject to a 120-month mandatory minimum. Mr. Serrano argues that if the enhancement did not apply, he would have qualified for the safety valve under U.S.S.G. § 2D1.1(b)(6). The court will not address this issue given its finding that the district court correctly applied the weapon enhancement.
IT IS THEREFORE ORDERED BY THE COURT that Mr. Serrano's motion to vacate his sentence pursuant to § 2255 (Doc. 98) is denied.
IT IS SO ORDERED.