Opinion
CASE NO. 05-CV-0533-TUC-FRZ, CASE NO. 04-CR-2234-TUC-FRZ.
September 26, 2005
ORDER
Petitioner has filed a "Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody ( 28 U.S.C. § 2255)."
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides, in relevant part, that
[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.
28 U.S.C. foll. § 2255.
Background
Pursuant to a plea agreement, Petitioner entered a plea of guilty to Count Two of the Indictment, which charged him with knowingly and intentionally possessing with the intent to distribute approximately 11.06 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II).
Pursuant to the plea agreement, Petitioner waived "any and all motions, defenses, probable cause determinations, and objections which [he] could assert to the indictment or to the Court's entry of judgment against [him] and imposition of sentence upon [him] consistent with [the plea] agreement." In addition, Petitioner waived "any right to collaterally attack [his] conviction and sentence under Title 28, United States Code, Section 2255."
The plea agreement provided for a sentencing range of 57-71 months. The United States reserved the right to withdraw from the plea agreement if Petitioner received a sentence of less than fifty-seven months. The Court imposed a sentence of fifty-seven months, the lowest possible sentence under the plea agreement.
Discussion
A. Downward Departure
In his motion, Petitioner seeks a reduction of his sentence based on his minor role in the offense, claiming that the Court "incorrectly determined" his role in the offense. This claim is waived pursuant to the plea agreement. Moreover, this claim is not the proper subject of a § 2255 motion. See Lizarraga-Lopez v. United States, 89 F. Supp. 2d 1166, 1168 (S.D. Cal. 2000) (section 2255 motion facially deficient when petitioner "seeks a downward departure, which is within the sentencing court's discretion but which does not implicate constitutional or jurisdictional issues with regard to his conviction or sentence."). Finally, the Court did not "incorrectly" determine Petitioner's role in the offense. The Court did not need to determine Petitioner's role in the offense before sentencing him to the lowest sentence available under the plea agreement.
B. Ineffective Assistance of Counsel
1. Ineffective Assistance in Plea Agreement
It appears Petitioner is asserting a claim of ineffective assistance of counsel related to his decision to plead guilty. Petitioner alleges that "defense counsel misrepresented and misadvised the plea to defendant about the condition of his plea bargain when specifically enquired by defendant, in as much as counsel knew that defendant's whole behavior and guilty plea was structured to avoid a plea agreement that would not result in a long sentence or prison time" and that Petitioner "detrimentally rel[ied] on counsel's advice, [and] pled guilty to the charge."
When a defendant pleads guilty based upon the advice of counsel, the defendant can "'only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel'" was outside "'the range of competence demanded of attorneys in criminal cases'" and was prejudicial. Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203 (1985) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973), and McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763 (1970)). "[T]o satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370.
Petitioner does not specify what advice counsel gave that fell outside the range of competence for criminal attorneys. Moreover, Petitioner faced a significantly more serious sentence had he been found guilty after a trial. He does not dispute that his Base Offense Level was 32, that he was eligible for a two-level reduction under the Safety Valve, and that he had a Criminal History I. Under the Sentencing Guidelines, the sentencing range for an Offense Level 30 and Criminal History I is 97-121 months. Petitioner has failed to demonstrate any reasonable probability that, when his "whole behavior" was structured to avoid a long prison sentence, he would have proceeded to trial facing a sentencing of 97-121 months, rather than accept a plea agreement which capped his sentence at 71 months. Accordingly, Petitioner's claim fails. See Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997) (Court "do[es] not have to evaluate both prongs of the [ Strickland] test if the defendant fails to establish one.").
Moreover, had Petitioner proceeded to trial, he would have also faced trial on Count One of the Indictment — importation of approximately 11.06 kilograms of cocaine.
2. Ineffective Assistance at Sentencing
Petitioner alleges that he was denied the effective assistance of counsel at sentencing because his attorney failed to investigate and present mitigating evidence at sentencing and seek a downward departure based on the fact that he was the sole caretaker and sole source of economic support for his family. He also alleges that his attorney was ineffective for failing to seek a downward departure based on his compliance with a "Fast Track" program, his compliance with an "Early Disposition" program, and the fact that his conduct was aberrant behavior.
To prevail on a claim of ineffective assistance of counsel, Petitioner must show both that his counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
First, Petitioner's attorney argued in his sentencing memorandum that the Court should consider the issues identified by the Probation Officer regarding Petitioner's aberrant conduct and significant family ties and responsibilities. Second, the Court actually did depart pursuant to the plea agreement "based on § ( 5K3.1) Early Disposition Program and savings to the government by early plea and waiver of appeal." Finally, Petitioner's attorney repeatedly urged the Court to adopt the Probation Officer's recommendation and sentence Petitioner to fifty-seven months' imprisonment, the lowest sentence under the plea agreement. The Court did.
Petitioner's plea agreement was designated as a "Fast Track 5K3.1" plea agreement.
Had Petitioner's attorney sought, and the Court imposed, a sentence below fifty-seven months, the United States would have had the right under the plea agreement to withdraw from the plea agreement. Had the United States done so, the Sentencing Guideline range would have been significantly higher. Additionally, there was no guarantee that the Court would have opted to depart based on the claims Petitioner raises and no guarantee that the Court would have imposed a sentence of less than fifty-seven months. Therefore, seeking a sentence below fifty-seven months ultimately could have resulted in a sentence that was significantly longer than the sentence actually imposed.
Petitioner's counsel's conduct was not unreasonable under the circumstances. Accordingly, Petitioner's ineffective assistance claim fails. See Pollard.
Conclusion
Accordingly,IT IS ORDERED that Petitioner's § 2255 Motion (U.S.D.C. document #23 in CR-04-2234-TUC-FRZ) is DENIED and this case (CV-05-533-TUC-FRZ) is DISMISSED. IT IS FURTHER ORDERED that the Clerk of the Court SHALL SERVE a copy of the Motion and this Order on Respondent and SHALL SERVE a copy of this Order on Petitioner.