Opinion
No. 06-15470.
Argued and Submitted January 12, 2007 San Francisco, California.
February 22, 2007.
Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding. DC No. CV 04-1558 JCM.
Before: NOONAN, TASHIMA, and CALLAHAN, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The district court granted Juan Jose Morales's 28 U.S.C. § 2255 motion for post-conviction relief based on the ineffective assistance of Morales' counsel at sentencing, and the United States appeals. The government argues that Morales' counsel did not perform deficiently in conceding that Morales was ineligible for safety valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2(a) (i.e., relief from a mandatory minimum sentence). Even if Morales' counsel did perform deficiently, the government contends that there was no prejudice to Morales as he would not have qualified for the safety valve in any case. The government also appeals from the district court's resentencing decision, arguing that the district court committed legal error in refusing to consider evidence not proven to a jury nor admitted by Morales. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(a), and 18 U.S.C. § 3742. We reverse the grant of the § 2255 motion, vacate the sentence, and remand for further proceedings.
Because the parties are familiar with it, we do not recite the procedural and factual background, except as necessary to understand our disposition.
We review de novo the district court's grant of a § 2255 motion, while reviewing the district court's factual findings for clear error. United States v. Alaimalo, 313 F.3d 1188, 1191 (9th Cir. 2002). A district court's determination as to whether counsel was constitutionally ineffective is also reviewed de novo. Id. Here, we conclude that the district court correctly determined that Morales' counsel performed deficiently, but remand for further fact-finding as to whether Morales was prejudiced by his counsel's flawed performance. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Morales was arrested in April 2003 as he delivered a package of methamphetamine to an undercover officer in a prearranged drug buy. Morales' companion, an individual named Chavez, was also arrested and a gun was found in his possession. Morales pleaded guilty to possessing at least 50 grams of actual methamphetamine with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii). Morales' counsel advised him that he was not eligible for safety valve relief because his co-defendant possessed a gun at the time of the offense. At sentencing, Morales' counsel conceded the inapplicability of the safety valve, and Morales was sentenced to the mandatory minimum of 120 months under 21 U.S.C. § 841(b)(1)(A)(viii).
Under 18 U.S.C. § 3553(f)(2) and U.S.S.G. § 5C1.2(a)(2), to qualify for relief from a mandatory minimum sentence, a defendant must show that, inter alia, he "did not . . . possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense." The commentary to U.S.S.G. § 5C1.2 provides that "the term `defendant,' as used in subsection (a)(2), limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused." U.S.S.G. § 5C1.2, cmt. n. 4.
We agree with the district court that it was objectively unreasonable for Morales' counsel to conclude that Morales was ineligible for safety valve relief based solely on a co-conspirator's possession of the gun. Although the Ninth Circuit has not so held, six other circuits had held prior to Morales' sentencing that a defendant cannot be found ineligible for safety valve relief based solely on co-conspirator liability for a co-defendant's possession of a firearm. See United States v. Figueroa-Encarnacion, 343 F.3d 23, 35 (1st Cir. 2003); United States v. Pena-Sarabia, 297 F.3d 983, 989 (10th Cir. 2002); United States v. Clavijo, 165 F.3d 1341, 1343 (11th Cir. 1999); United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997); In re Sealed Case (Sentencing Guidelines' "Safety Valve"), 105 F.3d 1460, 1462-63 (D.C. Cir. 1997);United States v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997) (per curiam). Minimal legal research by Morales' counsel would have revealed this unanimous view among the courts of appeals that have ruled on the issue, supplying him with at least an exceedingly strong argument that Morales was eligibile for safety valve relief.
We need not consider counsel's failure to contest the two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1), as Morales was sentenced to the statutory mandatory minimum sentence. Cf. United States v. Beng-Salazar, 452 F.3d 1088, 1096 (9th Cir. 2006) (Booker error is harmless where statutory mandatory minimum sentence was imposed (quotingUnited States v. Lake, 419 F.3d 111, 113-14 (2d Cir. 2005))). Because the imposition of the firearm enhancement does not preclude a defendant from safety valve relief, see United States v. Nelson, 222 F.3d 545, 551 (9th Cir. 2000), any error by counsel in not contesting the enhancement was harmless.
Contrary to the government's argument, the record indicates that Morales' counsel did not rest his concession of safety valve ineligibility on the fact that other guns were found in Morales' residence on the day of the offense. Further, even if Morales' counsel had relied on this fact, it would have been unreasonable for him to assume without any further investigation that the other guns were possessed in connection with Morales' drug trafficking offense, the disqualifying condition under the safety valve. See Wiggins v. Smith, 539 U.S. 510, 524-27 (2003); Williams v. Taylor, 529 U.S. 362, 395-96 (2000); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002). Whether a gun was possessed in connection with an offense is a fact-sensitive determination, so that counsel should have inquired into the factual circumstances of the guns' presence in Morales' home. See United States v. Ferryman, 444 F.3d 1183, 1186 (9th Cir. 2006) (concluding that district court's finding that firearms were possessed in connection with the offense was not clearly erroneous, based on "the circumstances in which the firearms were found, coupled with the implausibility of [the defendant's] explanations").
We cannot, however determine prejudice on the current record. The government argues that Morales would have been found ineligible for safety valve relief in any case because of the other guns found in his home. The district court rejected this argument, but in doing so refused to allow the government to introduce evidence regarding where the guns were found in relation to drugs and drug paraphernalia also discovered at Morales's residence. This evidence was relevant to whether Morales could have successfully shown that he did not possess the guns in connection with his methamphetamine trafficking offense.
The district court's determination that it could not consider evidence not proven to a jury nor admitted by Morales was erroneous. See United States v. Labrada-Bustamante, 428 F.3d 1252, 1263 (9th Cir. 2005) (finding that the judicial fact-finding required by the safety valve did not render the safety valve provision unconstitutional); see also United States v. Kilby, 443 F.3d 1135, 1140-41 (9th Cir. 2006); United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir. 2005) (en banc); United States v. Jordan, 256 F.3d 922, 933-34 (9th Cir. 2001). Upon remand, the district court should permit the parties to introduce evidence regarding the discovery of the other guns in Morales' house, and then evaluate in light of that evidence whether Morales has shown a "reasonable probability" that, but for his counsel's deficient performance, he would have qualified for the safety valve. See Strickland, 466 U.S. at 694.
Given our ruling, it is unnecessary for us to review the new sentence imposed by the district court. We reverse the grant of post-conviction relief under § 2255, vacate the new sentence, and remand for further proceedings consistent with this disposition.