Opinion
CV-22-00789-PHX-GMS (ASB) CR-05-00225-2-PHX-GMS)
12-12-2023
United States of America, Respondent/Plaintiff, v. Ruben Plaza-Uzeta, Movant/Defendant.
HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus United States Magistrate Judge.
Movant Ruben Plaza-Uzeta, who is confined in the Federal Correctional Institution in Mendota, California has filed a pro se Second Amended Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (CVDoc. 25).
Documents filed in CV-22-00789-PHX-GMS (ASB) will be referred to as “CVDoc.” while documents filed in the related criminal action, CR-05-00225-2-PHX-GMS, will be referred to as “CRDoc.” Movant's original Motion under 28 U.S.C. § 2255 was filed at Docket No. 313 in CR-05-225-2-PHX-GMS. He was permitted leave to amend, and the second amended motion was ultimately docketed at Docket No. 25 in CV-22-00789-PHX-GMS.
BACKGROUND
In March 2005, a federal grand jury indicted Movant and his three co-defendants of five felony counts: conspiracy to commit hostage taking (Count 1); hostage taking aid and abet (Count 2); conspiracy to harbor illegal aliens (Count 3); harboring illegal aliens (Count 4); and possession or use of a firearm in a crime of violence (Count 5). (CRDoc. 1.) Movant was arrested by the United States Marshals on a writ of habeas corpus ad prosequendum from state custody on April 27, 2005, made his initial appearance in District Court on the federal charges on May 11, 2005, and was ordered detained in this case on May 13, 2005. (CRDocs. 18, 19, 200.) Movant elected to proceed to trial, and he was tried with one of his co-defendants, Jesus Medina-Nevarez. (CRDoc. 99.) Following a 6-day jury trial in October 2006, Movant and Mr. Medina-Nevarez were found guilty of all five counts. (CRDoc. 107.)
On March 6, 2007, Movant was sentenced to concurrent terms of life imprisonment for Counts 1 and 2; 120 months' imprisonment on Counts 3 and 4 to run concurrently with each other and Counts 1 and 2; and a consecutive 84-month term of imprisonment for use of a firearm (Count 5). (CRDoc. 179.) The Court further imposed a 5-year term of supervised release on Counts 1, 2, and 5, and a 3-year term of supervised release on Counts 3 and 4, with all terms of supervised release running concurrently. (Id.) Following sentencing, the writ of habeas corpus ad prosequendum was returned and filed as executed, with the notation that Movant had been returned to state custody at ASPC-Safford. (CRDoc. 200.)
On March 8, 2007, Movant filed a timely Notice of Appeal. (CRDoc. 178.) The Ninth Circuit Court of Appeals affirmed Movant's convictions and sentences on June 10, 2008, and entered its formal mandate on July 2, 2008. (CRDoc. 223); United States v. Plaza-Uzeta, 282 Fed.Appx. 522, 2008 WL 2402230 (9th Cir. 2008) (cert. denied, 555 U.S. 962 (Oct. 14, 2008)). Movant subsequently filed an unsuccessful motion under 28 U.S.C. § 2255 concerning his initial judgment and sentence in CV-09-01231-PHX-GMS. Movant then filed a motion under Rule 36 under the Federal Rules of Criminal Procedure, and the motion was denied. (CRDocs. 247, 248.)
In October 2019, Movant filed another § 2255 Motion regarding his sentence on Count 5 (firearm possession or use in a crime of violence), and CV-19-05936-PHX-GMS was initiated. (CRDoc. 258.) He was appointed counsel. (CRDoc. 262.) On March 23, 2021, the Court adopted the Report and Recommendation of the Magistrate Judge, vacated Movant's 84-month sentence on Count 5, and set the matter for resentencing on Counts 1 through 4. (CRDocs. 258, 279.) The Court did so in the wake of United States v. Davis, 139 S.Ct. 2319 (2019), and United States v. Begay, 934 F.3d 1033 (9th Cir. 2019), because hostage taking could no longer be considered a crime of violence under the residual clause of 18 U.S.C. § 924(c)(3)(B).
In preparation for Movant's resentencing, Movant's counsel filed a robust sentencing memorandum with seven exhibits. (CRDoc. 297.) In the memorandum, Movant's counsel made many arguments in mitigation. (Id.) Among them, counsel emphasized that Movant had been brought to federal custody on a writ, “which resulted in receiving zero days of pre-sentence credit at the time of sentencing in the federal case.” (Id. at 3.) He further contended that Movant's state offense “was part of the conspiracy alleged” in the instant federal case, and he noted that his co-defendant in the state case, Mr. Medina-Nevarez, received concurrent state and federal sentences. (Id. at 4, 7.) He therefore argued that his sentences should also run concurrently with the “since expired” state sentence and “[c]redit should be given from the date of May 19, 2004.” (Id. at 4.) He noted that Movant had represented himself and failed to make that request. (Id. at 7.) To support his request for a concurrent sentence, counsel cited U.S.S.G. § 5G1.3(b). (Id.) He went onto argue, “Since the state sentence has expired, this Court should subtract from the sentence imposed 52 months to account for the sentence served in state prison.” (Id.) In a footnote to that sentence, Movant's counsel provided the calculation from May 19, 2004 to September 1, 2008. (Id. at n. 6.)
In addition to the departure, Counsel moved for a variance under 18 U.S.C. § 3553(a) for post-sentencing rehabilitation, unwarranted disparity, lack of guidance/criminal guidance as a youth, and youthfulness at time of offense. (CRDoc. 297 at 7.) Counsel underscored the programming Movant had done during his time in custody, including vocational training, as well as Movant's written statement expressing remorse. (Id. at 4.)
Resentencing took place on April 18, 2022. (CVDoc. 32-1 at 1.) Movant's counsel requested that Movant be sentenced to 300 months' custody. (Id. at 5.) In so doing, counsel reiterated many of the themes contained in his sentencing memorandum, including rehabilitation and remorse. (See id. at 6-11.) He argued regarding disparity in sentences for other violations of 18 U.S.C. § 924(c). (Id. at 11-12.) He went on to request that “credit should go back to May 19th, 2004,” as Movant's “State incident was part and parcel to the conspiracy in this case.” (Id. at 16.) Counsel argued that the conduct in Movant's state conviction was relevant conduct and under the guidelines at the time that he was sentenced, since that sentence was unexpired, the guidelines said that it shall be concurrent with that sentence, but it wasn't.” (Id.) He concluded, “So we'd ask this Court to make this - to give credit back to May 19th, 2004, when he was arrested on that offense for which he was charged in State Court.” (Id.)
Following counsel's argument for Movant, the Court engaged in a dialogue with the attorneys about the when “the concurrent aspect of” the federal sentence began to run. (CVDoc 32-1 at 16-19.) Movant's counsel again argued that the acts for which Movant was convicted in state court were “part of the same conspiracy” as the federal case, and therefore the sentences should run concurrently beginning on May 19, 2004. (Id. at 18.) Alternatively, counsel argued the Court should use May 10, 2005, the date Movant was “writted over into federal custody.” (Id.) The Court also discussed with counsel whether other defendants, e.g., Messrs. Medina-Nevarez and Alvarez-Espinoza, were similarly situated. (See id. at 16-21.) To the latter point, the Government argued that Mr. Alvarez-Espinoza was not similarly situated, but that Movant was more similar to Mr. Medina-Nevarez. (Id. at 27-28.) The Government recognized Movant's rehabilitative efforts from the date he was originally sentenced and ultimately recommended Movant be sentenced to a term of 360 months' incarceration. (Id. at 29-30.)
After hearing from the attorneys, as well as Movant, the Court imposed sentence. The Court stated that it did not view Movant “as being materially different from Mr. Medina,” and sentenced Movant to serve 360 months on Counts 1 and 2 and 120 months on Counts 3 and 4, all to run concurrently with one another. (CVDoc 32-1 at 31.) The Court further ordered that the federal sentence run concurrently with Movant's state sentence. (Id.)
On May 9, 2022, Movant timely filed his Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CVDoc. 1, CRDoc. 313.) He filed an amended motion and a second amended motion (CVDocs. 6, 25.) The Government timely responded to the Second Amended Motion, and Movant filed a Reply. (CVDocs. 32, 33.)
DISCUSSION
In his Second Amended Motion, Movant raises two grounds for relief. In Ground One, Movant alleges that he received ineffective assistance in his 2022 proceeding when counsel failed to present the mitigating factor that a co-defendant's concurrent state sentence was 10 years and Movant's concurrent state sentence was 5 years. In Ground Two, Movant alleges that he received ineffective assistance when counsel in the 2022 proceeding failed to move for a downward departure under U.S.S.G. § 5K2.23.
I. Legal Standard
Under § 2255, a person in custody may “move the court which imposed the sentence to vacate, set aside or correct the sentence” on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Ineffective assistance of counsel claims are “‘generally inappropriate on direct appeal' and should be raised instead in habeas corpus proceedings.” United States v. Steele, 733 F.3d 894 (9th Cir. 2013) (quoting United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000). The Court reviews claims of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Movant must show: (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defense. 466 U.S. at 687.
To establish that counsel's performance was deficient, Movant must show that “counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 688. There is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689.
To establish prejudice from counsel's errors, Movant must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id. The court need not determine whether counsel's performance was deficient before examining whether prejudice resulted from the alleged deficiencies. See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. (quoting Strickland, 466 U.S. at 697).
II. Analysis
A. Ground One
In Ground One, Movant argues that his counsel was inadequate because he failed to argue that Mr. Medina's state sentence was 10 years and Movant's was 5 years. He contends that he discharged his state sentence in 2008, while his co-defendant did not discharge his until 2013; therefore, Movant was “already serving ‘actual federal time' from 2008-2013 [while his] co-defendant was just getting credit for it.” (CVDoc. 33 at 3.) He emphasizes he, too, is entitled to “double credit.” (Id. at 3-4.)
The Court begins with some controlling statutory provisions concerning sentencing. First, as the Ninth Circuit has held, 18 U.S.C. § 3585(a) “mean[s] that a federal sentence cannot begin before the defendant has been sentenced in federal court.” Schleining v. Thomas, 642 F.2d 1242, 1244 (9th Cir. 2011) (emphasis in original). Therefore, even though a district judge has discretion under the Sentencing Guidelines “to consider [a] defendant's past state incarceration on related charges in determining an appropriate sentencing, any concurrent sentence he issues is entirely prospective.” Id. at 1248 n.8 (emphasis added). Presentence credit is governed by 18 U.S.C. § 3585(b). As Movant concedes, 18 U.S.C. § 3585(b) bars prior custody credit from being granted if the prisoner has received credit towards another sentence. Indeed, as the Supreme Court has observed, “Congress made clear that a defendant could not receive a double credit for his detention time” when it enacted 18 U.S.C. § 3585(b). United States v. Wilson, 503 U.S. 329, 337 (1992). Keeping those principles in mind, the Court turns to the instant Motion.
After reviewing the record, the Court agrees with Movant that his counsel did not argue Movant's sentence should be reduced by five years to account for a difference between Movant and Mr. Medina. However, Movant's instant Motion ignores key facts. First, Movant's counsel did ask for 300 months, not 360 months, and he repeatedly emphasized that Movant's state sentence was for relevant conduct. Second, Movant ignores that Mr. Medina had also been resentenced the very same day as Movant. When it sentenced Mr. Medina mere hours before Movant, the Court had considered Mr. Medina's state sentence and knew of its length. Just as the Court knew how long Mr. Medina's state sentence was and when it began, the Court knew how long Movant's state sentence was and when it had begun when resentencing Movant. The Court was keenly aware of the differences between the two defendants' state sentences. Nonetheless, the Court opted to impose the sentence that it did. Finally, the Court could not give Movant impermissible “double credit.” See Wilson, 503 U.S. at 337.
Mere conclusory allegations are insufficient to prove that counsel was ineffective. Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989). Movant bears the burden to show that counsel's conduct fell below an objective standard of reasonableness and, but for his counsel's errors, the result of the proceeding would have been different. Here, Movant has done neither.
Accordingly, because Movant does not assert a viable claim and fails to satisfy the Strickland standard, the Court will recommend that Ground One be denied.
B. Ground Two
Next, in Ground Two, Movant argues that counsel provided ineffective assistance because he failed to move for a downward departure under U.S.S.G. § 5K2.23. The Government concedes that counsel did not invoke the provision but maintains that counsel was effective based on the totality of arguments he made.
As detailed above, the record shows counsel moved for a downward departure under U.S.S.G. § 5G1.3. (CRDoc. 297 at 4, 7.) However, counsel recognized that the sentence had “since expired.” (Id. at 7.) Therefore, counsel was making an argument to reduce Movant's sentence to reflect time Movant had served on an “expired” state sentence for relevant conduct.
U.S.S.G. § 5G1.3(b) provides that the sentencing court should adjust a defendant's sentence for the crime of conviction to take into account time already served on an undercharged prison term and order the federal sentence to run concurrently to any undischarged time. U.S.S.G. § 5K2.23 concerns terms of imprisonment that are discharged, as opposed to undischarged terms. It provides that a “downward departure may be appropriate if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of § 5G1.3 ... would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense.” Therefore, the record shows that counsel asked for the downward departure, but he asked for it under § 5G1.3 instead of § 5K2.23. As applied to when Movant was originally sentenced in 2007, § 5G1.3 was correctly cited. However, counsel's use of the word “expired” shows he recognized he was asking for the departure based on a sentence that had been discharged by the time resentencing occurred in 2022. The Court notes the analysis under the two Guidelines sections is the largely same, but the sentencing court is not required to depart for a discharged term of imprisonment under § 5K2.23. See U.S.S.G. § 5K2.23 (stating a departure “may be appropriate”) (emphasis added).
The Court need not determine whether counsel's performance was deficient before examining whether prejudice resulted from the alleged deficiencies. See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. (quoting Strickland, 466 U.S. at 697). However, even assuming arguendo that asking for a downward departure using the undischarged (as opposed to discharged) term of imprisonment provision of the Guidelines was somehow objectively unreasonable, the Court concludes that Movant has failed to demonstrate the result of his resentencing would have been different, but for his counsel's alleged deficiency. After considering the record, the Court concludes Movant's argument is essentially form over substance. The record is clear: counsel argued for a downward departure on the basis of Movant's discharged state sentence. Counsel contended, “Since the state sentence has expired, this Court should subtract from the sentence imposed 52 months to account for the sentence served in state prison.” (CR297 at 7.) He continued to advocate in the same fashion for Movant at resentencing. After carefully considering all of counsel's arguments, including the request for a downward departure, and applying 18 U.S.C. § 3553, the Court imposed a 360-month sentence. Movant has not shown prejudice. Therefore, Movant has failed to satisfy the Strickland standard for this ineffective assistance claim, and the Court will recommend that Ground Two be denied.
III. Evidentiary Hearing
The Court concludes that Movant is not entitled to an evidentiary hearing on his claims because “the motion and the files and records of the case conclusively show that [he] is entitled to no relief.” 28 U.S.C. § 2255(b). The testimony of Movant or his counsel would add little or nothing to record before the Court. “Section 2255 itself ‘recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner.'” Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). Although the Court recognizes “that when the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive... this is one of those cases in which an issue of credibility may be conclusively decided on the basis of documentary testimony and evidence in the record.” See Watts, 841 F.2d at 277 (internal citation and quotation marks omitted) (noting “[w]hen section 2255 motions are based on alleged occurrences entirely outside the record, which if true would support relief, the court must conduct a hearing on those allegations ‘unless, viewing the petition against the record, its allegations do not state a claim for relief or are so patently frivolous or false as to warrant summary dismissal.'”) An evidentiary hearing is not required by statute.
CONCLUSION
For the foregoing reasons, the Court finds that the claims presented in the Second Amended Motion fail on the merits. Movant has not raised facts or issues that entitle him to an evidentiary hearing on his claims. Accordingly, the Court will recommend that the Second Amended Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 be denied. Accordingly, IT IS RECOMMENDED that the Second Amended Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CVDoc. 25) be DENIED and that CV-22-00789-PHX-GMS (ASB) be DISMISSED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Movant has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.