Opinion
Criminal No. 04-072 (PG), Civil No. 06-1138 (PG).
March 22, 2006
REPORT AND RECOMMENDATION
INTRODUCTION
On February 6, 2006, petitioner Víctor De Castro Vicens filed a pro-se motion, affidavit and memorandum in support of a 28 U.S.C. § 2255 petition seeking to vacate his conviction and sentence imposed after a guilty plea in Criminal No. 04-072 (PG). Petitioner contends his attorney failed to submit arguments to the sentencing court to properly request a downward departure to the base offense level for his minimal or minor participation in the offense. ( Docket No. 1). The § 2255 petition was referred to this Magistrate Judge for report and recommendation. ( Docket Nos 2, 3).
The available record contradicts petitioner's claim. Accordingly, the petition is subject to summary dismissal, without further need for a government's reply, as discussed below.
Summary dismissal of a petition is appropriate when the petition is conclusively refuted as to the alleged facts by the files and the record of the case. United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
PROCEDURAL BACKGROUND
Above petitioner was charged in a one-count indictment with aiding and abetting by others, possessed with intent to distribute five (5) kilograms or more of cocaine, and one (1) kilogram or more of heroin, a violation to 21,United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2.On May 18, 2004, petitioner entered a straight plea as to Count One of Criminal No. 04-072 (PG). On October 14, 2004, petitioner was sentenced to a term of imprisonment of one hundred and thirty five (135) months, a supervised release term of five (5) years, and a special monetary assessment of one hundred dollars ($100.00).
Defense counsel filed an Anders brief on appeal. On July 1, 2005, the mandate was received and filed affirming the conviction in absence of non-frivolous basis for appeal on the record.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) (requiring counsel to accompany a request to withdraw with "a brief referring to anything in the record that might arguably support the appeal").
LEGAL ANALYSIS
A. Ineffective Assistance of Counsel.
Petitioner avers in the pro-se post-conviction claim that his counsel was ineffective for failure to properly argue a downward two (2) point departure for a minor or minimal participant in the offense. However, petitioner's claims of ineffective assistance of counsel are belied by the record.
Section 3B1.2 provides for a decrease in the offense level for a minimal participant in a criminal activity of four levels and for a minor participant by two levels.
A claim of ineffective assistance of counsel should first address this petitioner's non-compliance with the requisites inStrickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 2068 (1984). The legal standard applicable to the above-captioned petition is pellucidly clear. Petitioner must show both that counsel's performance fell below an objective standard of reasonableness and that prejudice resulted. Strickland, 466 U.S. at 687. See also López-Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990). Counsel's performance must be examined "not in hindsight, but based on what the lawyer knew, or should have known, at the time his tactical choices were made and implemented." United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1992). The "range of reasonable professional assistance" is quite wide. See Strickland, 466 U.S. at 689. Therefore, as the Supreme Court has noted, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id.
Pursuant to Strickland, 466 U.S. at 688 counsel's performance is ineffective only if it was objectively unreasonable under prevailing professional norms. In light of the circumstances, petitioner is required to identify acts or omissions by counsel which need to be outside the wide range of professional competent assistance. See Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993) (explaining elements needed to sustain a claim of ineffective assistance of counsel).
The record shows that at the time of sentencing counsel for petitioner indicated having filed an objection in writing to the pre-sentence report for not granting a two (2) level reduction for petitioner's minor role. (Transcript 10-14-2004, pp. 4-5).
In addition, defense counsel argued before the sentencing judge that petitioner was not the one driving the vehicle when the car was stopped upon unloading the narcotics and he had no knowledge of where the drugs were to be taken. Defense counsel further argued petitioner should be granted a minor role in the offense for having a limited function in a concerted criminal activity. Id. pp. 6-7. The government, however, objected to defense counsel's arguments. Id. pp. 8-9.
Defense counsel further argued to the sentencing court and obtained a two (2) point reduction under the safety valve and a three (3) level reduction for acceptance of responsibility. (Transcript 10-14-2004, pp. 11-12, 13).
As such, notwithstanding defense counsel's attempts to seek a minor role in the offense, the Court, although finding it was not precluded within its discretion from consideration of an adjustment under the sentencing guideline as a minor participant, found petitioner was one step up in the ladder from the average participant and did not deserve such departure. The court discussed, among others, that: petitioner's vehicle was used in the illegal venture; he knew the owner of the drugs; he knew he was going to pick up drugs; the drugs were placed in petitioner's car regardless of who was driving same at the time of arrest; and the sum of money involved of $40,000.00 was a substantial amount. Thus, the sentencing judge determined petitioner's conduct departed from the average participant in such a drug smuggling venture. (Transcript 10-14-2004, p. 10). See United States v. Vega-Encarnación, 914 F.2d 20, 24 (1st Cir. 1990) (explaining that a sentencing court's assessment of the factual record will be set aside only if "clearly erroneous")
A minor participant is a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant; i.e., as one who just unloaded the drugs and gets paid a minimal price. U.S.S.G. 3B1.2(b) comment (n. 5).
To qualify as a minor participant and obtain the two (2) level reduction in the offense level, a defendant has to prove by preponderance of the evidence that he was less culpable than most other participants, this means, that he must be not only less culpable than his cohorts in the particular criminal endeavor, but also less culpable than the majority of those within the universe of persons participating in similar crimes. United States v. Teeter, 257 F.3d 14 (1st Cir. 2001) (finding no clear error in refusing to decrease defendant's offense level as a minimal or minor participant).
Departure decisions are discretionary and no appeal is warranted for a sentencing court's refusal to grant a downward departure. Teeter, 257 F.3d at 30.
The language in the Sentencing Guideline to least culpable of those involved has not been read to make the "least" or "less" culpable person in a given group crime automatically entitled to the adjustment. United States v. Royal, 100 F.3d 1019, 1030 (1st Cir. 1996); United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990). See Murphy 321 F3d at 8. Herein petitioner is unable to meet such a hurdle.
It is for a defendant in challenging a fact-based determination as to the role in the offense to prove the district court's determination to be clearly erroneous. United States v. Murphy, 193 F.3d 1, 8 (1st Cir. 1999). Petitioner bears a substantial burden of proving entitlement to such downward departure for his role in the offense. See United States v. Ortiz Santiago, 211 F.3d 146, 148-149 (1st Cir. 2000). See also United States v. Martínez Vargas, 321 F3d 245 (1st Cir. 2003).
In this case, the sentencing court weighed the totality of the facts available and the Probation Office's pre-sentence report's assessment that petitioner was not a minor participant and denied defense counsel's request for a downward departure at the sentencing stage. Accordingly, the sentencing court's determination was not clearly erroneous. Petitioner has failed to show otherwise.
In addition, petitioner is unable to establish that he was prejudiced. In the context of an ineffective assistance of counsel claim, "prejudice" occurs when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. See Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005).
Even when a petitioner is able to establish that counsel's performance was inefficient, which herein petitioner has not, to be entitled to post-conviction relief, petitioner would also be required under Strickland to establish prejudice has attained.Dugas at 319. Since the record of sentencing proceedings is clear that the presiding court, even acknowledging to have within its discretion authority to grant the two point reduction for minor participant, upon relevant factual determination ruled against same, petitioner is unable to establish prejudice.
Strickland requires both deficient attorney performance and resulting prejudice. 466 U.S. at 687, 104 S.Ct. 2052. See United States v. Colon-Torres, 382 F.3d 76, 90 (1st Cir. 2004) (finding prejudice by counsel's ineffective performance).
As such, a review of the record and above discussion as the sentencing court's refusal to grant the two (2) points departure, notwithstanding defense counsel's arguments, clearly establish petitioner's claims of ineffective assistance of counsel are unsubstantiated.
B. Evidentiary Hearing.
A prisoner who invokes section 2255 is not entitled to an evidentiary hearing as a matter of right. See United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). Even if a hearing is requested, a district court properly may forgo it when (1) the motion is inadequate on its face, or (2) the movant's allegations, even if true, do not entitle him to relief, or (3) the movant's allegations "need not be accepted as true because they state conclusions instead of facts, contradict the record, or are `inherently incredible.'" Id. at 225-26 (citation omitted); see also Rule 4(b), Rules Governing Section 2255 Proceedings. David v. United States, 134 F.3d at 477-478. Petitioner has not established that the post-conviction grounds raised in his petition would entitle him to relief.
Unless a mistake of law looms, a sentencing court's determination of a defendant's role in the offense would be set aside only for clear error. United States v. Tejada-Beltran, 50 F.3d 105, 110-11 (1st Cir. 1995).
Thus, from an examination of the available criminal record, the Rule 11 transcript, and the sentencing proceedings, this Magistrate Judge cannot find that petitioner has presented any basis for his claim that defense counsel's performance was unreasonable, there being no need for additional factual determinations to be made which would require an evidentiary hearing related to these contentions in the § 2255 petition.
CONCLUSION
In view of the foregoing, it is recommended that petitioner's § 2255 be summarily DENIED.IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round"). San Juan, Puerto Rico, this 22nd day of March of 2006.