Opinion

Sanchez-Romo v. United States

Court
District Court, S.D. California
Filed
Sep 4, 2019
Cited by
0 cases
Authority
More cited than 19.0%

The opinion

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 UNITED STATES OF AMERICA, CRIM CASE NO. 16cr1766WQH

CIVIL CASE NO. 19cv948WQH

11 Respondent/Plaintiff,

v. ORDER

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JUAN CARLOS SANCHEZ-ROMO,

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Petitioner/Defendant.

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HAYES, Judge:

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The matter before the court is the motion under 28 U.S.C. § 2255 to vacate, set

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aside, or correct sentence by a person in federal custody filed by the Defendant. (ECF

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No. 49).

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On August 2, 2016, an indictment was filed in the Southern District of California

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charging Defendant with Conspiracy to Distribute Cocaine Intended for Importation in

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violation of 21 U.S.C. §§ 959, 960 and 963; and Conspiracy to Possess with Intent to

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Deliver Cocaine on Board a Vessel in violation of 46 U.S.C. §§ 70503 and 70506(b).

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Defendant was arrested and extradited from Spain to the Southern District of California.

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On September 19, 2017, Defendant entered a plea of guilty to Conspiracy to

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Distribute Cocaine Intended for Importation in violation of 21 U.S.C. §§ 959, 960 and

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963 as charged in Count 1 of the Indictment. Prior to the entry of the plea, Defendant

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and the Government entered into a Plea Agreement. (ECF No. 24). The Plea Agreement

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provided that the “crime to which Defendant is pleading guilty in Count 1 carries the

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following penalties: A. a maximum of life in prison, and a mandatory minimum 10

1 years.” Id. at 5. The parties jointly agreed to recommend a departure under the United

2 States Sentencing Guidelines of 2 levels for “Safety Valve,” and 2 levels for “Appeal

3 Waiver and/Early Resolution.” Id. at 9. The Plea Agreement stated:

4 *If Defendant truthfully discloses to the government all information and

evidence Defendant has concerning the offense and relevant conduct, and

5 if Defendant otherwise qualifies for the "safety valve" reduction contained

in § 5Cl.2, the government will recommend a two-level reduction under

6 § 2Dl.l(b)(l 7) and relief from any statutory mandatory minimum sentence

pursuant to § 5Cl.2. If Defendant does not qualify under § 5Cl.2,

7 Defendant may be subject to a statutory mandatory minimum sentence.

8 Id. The Government agreed to “recommend that defendant be sentenced within the

9 advisory guideline range recommended by the Government at sentencing.” Id. at 10.

10 Defendant agreed to waive “all rights to appeal and to collaterally attack every aspect

11 of the conviction and sentence, including any restitution order. The only exception is

12 that Defendant may collaterally attack the conviction or sentence on the basis that

13 Defendant received ineffective assistance of counsel.” Id. at 11. Defendant signed the

14 Plea Agreement and initialed each page.

15 On September 19, 2017 the Magistrate Judge conducted a plea hearing. The

16 Magistrate Judge stated in part:

17 THE COURT: Mr. Sanchez, as we discussed earlier, based on the type and

amount of drugs involved in your case, federal law imposes a mandatory

18 minimum sentence of ten years. The sentencing judge may impose that

mandatory minimum sentence even though the advisory sentencing

19 guidelines might suggest a lower sentence. Do you understand that?

THE DEFENDANT THROUGH THE INTERPRETER: Yes, sir.

20 THE COURT: Has each of you discussed the sentencing guidelines with

your attorney?

21 THE DEFENDANT THROUGH THE INTERPRETER: Yes.

22 (ECF No. 54-1 at 10). The Magistrate Judge confirmed that the Plea Agreement had

23 been translated to the Defendant in Spanish prior to the plea hearing, and that Defendant

24 had the opportunity to consult with defense counsel prior to the plea hearing.

25 Defendant stated that he was satisfied with the advice he had received from his counsel.

26 The Magistrate Judge found that Defendant knowingly, voluntarily, and intelligently

27 entered his plea agreement with the assistance of his counsel.

28 On October 31, 2017, this Court adopted the findings of the Magistrate Judge and

1 accepted the plea.

2 On March 12, 2018, the Government filed sentencing summary chart stating that

3 the guideline range was 135 to 168 months and recommending that the Court impose

4 a sentence of 168 months. The Government indicated that Defendant did not qualify

5 for safety valve pursuant to §§ 2D1.1(b)(17) and 5C1.2.

6 On April 3, 2018, Defendant participated in a safety valve debrief with agents

7 from the DEA, the Assistant United States Attorney, and his defense counsel. During

8 the debrief, Defendant was informed by the Assistant United States Attorney that he

9 would have to talk about the offense in its entirety in order to be eligible for safety

10 valve. Defendant continued to decline to answer questions. The interview ended.

11 On May 14, 2018, Defendant filed sentencing summary chart recommending a

12 two level departure for safety valve pursuant to §§ 2D1.1(b)(17) and 5C1.2, resulting

13 in a guideline range of 63-78 months.

14 On May 21, 2018, the Court held a sentencing hearing and scheduled an

15 evidentiary hearing to address Defendant’s compliance with the requirements of the

16 safety valve provision. At the hearing, the United States called DEA Special Agent Eric

17 Leach to testify regarding the April 3, 2018 debrief with the Defendant. Agent Leach

18 testified that Defendant declined to answer specific questions posed regarding the

19 cocaine shipments he directed and that he falsely denied sending GPS coordinates to a

20 co-conspirator who used the screenname, Simon. (ECF No. 54-3 at 6-16). Defense

21 counsel cross-examined Agent Leach regarding this debrief. Defendant did not call any

22 witnesses.

23 The Court heard extensive arguments from the United States and Defendant

24 regarding Defendant’s eligibility for safety valve. Id. at 22-29. Defense counsel

25 extensively argued that Defendant had provided all information regarding the offense

26 of conviction and satisfied the requirements of safety valve. The United States argued

27 that Defendant did not meet the requirements of safety valve because he declined to

28 answer specific questions citing the safety of his family members in Mexico and falsely

1 denying sending GPS coordinates to a co-conspirator. The Court found that Defendant

2 did not met the requirements for safety valve under § 5C1.2. The Court specifically

3 found that Defendant elected not to provide responsive information to relevant

4 questions from the Government concerning his participation in the offense.

5 The Court concluded that the applicable guideline range was 168 to 210 months

6 and applied the two level departure for appeal waiver and early resolution for a final

7 guideline range of 135 to 168 months. After considering all of the sentencing factors

8 under 18 U.S.C. § 3553(a), the Court imposed the mandatory minimum sentence of 120

9 months in the custody of the Bureau of Prisons and 5 year of supervised release.

10 Based upon the plain language of the plea agreement, the Court declined to

11 advise the Defendant that he had a right to appeal.

12 Defendant did not file a direct appeal.

13 On May 20, 2019, Defendant filed a motion pursuant to 28 U.S.C. § 2255.

14 Defendant asserts that he received ineffective counsel because his attorney failed to

15 provide him with a copy of the presentence report and failed to obtain the benefits of

16 safety valve, including a sentence below the mandatory minimum 120 months.

17 Plaintiff United States asserts that the Defendant waived his right to challenge his

18 conviction and sentence in the plea agreement. Plaintiff United States contends that

19 Defendant cannot establish ineffective assistance of counsel because his counsel

20 vigorously argued that he was eligible for safety valve, the issue was fully litigated, and

21 the Court ruled against the Defendant.

22 ANALYSIS

23 28 U.S.C. § 2255 provides:

24 A prisoner under sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence was

25 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

26 sentence was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack, may move the court which imposed the

27 sentence to vacate, set aside or correct the sentence.

28 Unless the motion and the files and records of the case conclusively show

that the prisoner is entitled to no relief, the court shall cause notice thereof

1 to be served upon the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of facts and conclusions

2 of law with respect thereto. If the court finds that the judgment was

rendered without jurisdiction, or that the sentence imposed was not

3 authorized by law or otherwise open to collateral attack, or that there has

been a denial or infringement of the constitutional rights of the prisoner as

4 to render the judgment vulnerable to collateral attack, the court shall

vacate and set aside the judgment and shall discharge the prisoner or

5 resentence him or grant a new trial or correct the sentence as may appear

appropriate.

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28 U.S.C. § 2255(a) and (b).

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RULING OF THE COURT

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Waiver of Appeal

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In this case, the record conclusively shows that the Defendant waived his right

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to bring a § 2255 motion with the exception of a claim for ineffective assistance of

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counsel. In exchange for the Government’s concessions in the plea agreement, the

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Defendant waived “all rights to appeal and to collaterally attack every aspect of the

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conviction and sentence, including any restitution order. The only exception is that

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Defendant may collaterally attack the conviction or sentence on the basis that Defendant

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received ineffective assistance of counsel.” (ECF No. 24 at 11). This waiver is clear,

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express, and unequivocal. Plea agreements are contractual in nature, and their plain

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language will generally be enforced if the agreement is clear and unambiguous on its

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face. Davies v. Benov, 856 F.3d 1243, 1247 (9th Cir. 2017). The plea was knowingly

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and voluntarily made. Pursuant to the terms of the plea agreement, the Defendant

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waived his right to collaterally attack the conviction and sentence imposed except on

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the basis that Defendant received ineffective assistance of counsel.

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Ineffective Assistance of Counsel

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In order to prevail on a claim of ineffective assistance of counsel, Petitioner must

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show that representation of counsel fell below an objective standard of reasonableness,

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and that any deficiencies in counsel’s performance were prejudicial. See Strickland v.

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Washington, 466 U.S. 688, 690 (1984). Both deficient performance and prejudice are

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required before it can be said that a conviction or sentence resulted from a breakdown

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in the adversary process that rendered the result of the proceeding unreliable and thus

1 in violation of the Sixth Amendment. See United States v. Thomas, 417 F.3d 1053, 1056

2 (9th Cir. 2005).

3 In order to show that counsel’s representations fell below an objective standard

4 of reasonableness, Defendant must identify “material, specific errors and omissions that

5 fall outside the wide range of professionally competent assistance.” United States v.

6 Molina, 934 F.2d 1440, 1447 (9th Cir. 1991) (internal citation omitted). The inquiry

7 is “whether counsel’s advice was within the range of competence demanded of

8 attorneys in criminal cases.” Turner, 281 F.3d at 879 (internal quotations omitted). In

9 making this determination, the court applies a “strong presumption that counsel’s

10 conduct falls within the wide range of reasonable professional assistance....” Strickland,

11 466 U.S. at 689. A deficient performance requires showing that “counsel made errors

12 so serious that counsel was not functioning as ‘counsel’ guaranteed by the Sixth

13 Amendment.” Id. at 687.

14 United States Sentencing Guidelines Section 5C1.2 provides,

15 (a) Except as provided in subsection (b), in the case of an offense under 21

U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a

16 sentence in accordance with the applicable guidelines without regard to

any statutory minimum sentence, if the court finds that the defendant

17 meets the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth below:

18 (1) the defendant does not have more than 1 criminal history point, as

determined under the sentencing guidelines before application of

19 subsection (b) of § 4A1.3 (Departures Based on Inadequacy of Criminal

History Category);

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(2) the defendant did not use violence or credible threats of violence or

21 possess a firearm or other dangerous weapon (or induce another

participant to do so) in connection with the offense;

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(3) the offense did not result in death or serious bodily injury to any

23 person;

24 (4) the defendant was not an organizer, leader, manager, or supervisor of

others in the offense, as determined under the sentencing guidelines and

25 was not engaged in a continuing criminal enterprise, as defined in 21

U.S.C. § 848; and

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(5) not later than the time of the sentencing hearing, the defendant has

27 truthfully provided to the Government all information and evidence the

defendant has concerning the offense or offenses that were part of the

28 same course of conduct or of a common scheme or plan, but the fact that

the defendant has no relevant or useful other information to provide or that

1 the Government is already aware of the information shall not preclude a

determination by the court that the defendant has complied with this

2 requirement.

3 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.

4 In this case, Defendant was advised in the Plea Agreement that he was subject to

5 the 120 months mandatory minimum sentence unless he qualified for safety valve under

6 § 5Cl.2. Defendant entered into a Plea Agreement which specifically stated:

7 If Defendant truthfully discloses to the government all information and

evidence Defendant has concerning the offense and relevant conduct, and

8 if Defendant otherwise qualifies for the "safety valve" reduction contained

in § 5Cl.2, the government will recommend a two-level reduction under

9 § 2Dl.l(b)(l 7) and relief from any statutory mandatory minimum sentence

pursuant to § 5Cl.2. If Defendant does not qualify under § 5Cl.2,

10 Defendant may be subject to a statutory mandatory minimum sentence.

11 ECF No. 24 at 9. The Plea Agreement was thoroughly reviewed by the Magistrate

12 Judge in open court. Defendant participated in a debrief in an effort to qualify for safety

13 valve and was clearly informed of the Government’s position that he did not qualify.

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15 At the time of sentencing, the Government asserted that Defendant did not qualify

16 for safety valve on the grounds that Defendant had not truthfully disclosed all

17 information known to him at the safety valve debrief. Defense counsel vigorously

18 argued that Defendant had met the requirement to truthfully disclose evidence. The

19 Court held an evidentiary hearing. Plaintiff United States presented the testimony of

20 the agent present at the debrief. Defense counsel extensively cross-examined the agent

21 and continued to argue in favor of safety valve. The Court found that Defendant had

22 not satisfied the requirement that he “truthfully discloses to the government all

23 information and evidence Defendant has concerning the offense and relevant conduct.”

24 § 5C1.2(a)(5).

25 Defendant has not identified any “material, specific errors and omissions that fall

26 outside the wide range of professionally competent assistance.” United States v.

27 Molina, 934 F.2d 1440, 1447 (9th Cir. 1991) (internal citation omitted). Defense

28 counsel vigorously advanced the position that Defendant had complied with the

1 requirements of safety valve at all stages of the proceeding. After a contested hearing,

2 the Court ruled against the Defendant. There are no facts to support the conclusion that

3 defense counsel made any errors in representation. Defendant was fully informed of

4 the legal consequences for his decision not to provide information by defense counsel,

5 government counsel, and the Court.

6 Prejudice

7 To prevail on the prejudice prong of a claim of ineffective assistance of counsel,

8 the defendant must show that there is “a reasonable probability that, but for counsel’s

9 unprofessional errors, the results of the proceedings would have been different. A

10 reasonable probability is a probability sufficient to undermine confidence in the

11 outcome.” Strickland, 466 U.S. at 69. In this case, the Defendant signed a plea

12 agreement specifically informing him that he was required to truthfully provide all

13 information known to him concerning the offense and relevant conduct in order to avoid

14 the mandatory minimum sentence. The Court found that he did not comply. There are

15 no facts presented in the petition which would support any claim that he was prejudiced

16 by advice of his counsel.1

17 Conclusion

18 An individual filing a claim for federal habeas corpus relief under 28 U.S.C. §

19 2255 is entitled to an evidentiary hearing “unless the motion and the files and records

20 of the case conclusively show the prisoner is entitled to no relief.” United States v.

21 Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). This standard requires an evidentiary

22 hearing unless the movant's allegations, when viewed against the record, do not state

23 a claim for relief or are so palpably incredible or patently frivolous as to warrant

24 summary dismissal. Id. The record in this case conclusively shows that representation

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1 The Court finds that Defendant has not shown any prejudice resulted from his

27 claim that his counsel failed to provide him with a “draft of the PSI Report for his

reading, revision, and approval.” (ECF No. 49 at 4).

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of counsel did not fall below an objective standard of reasonableness, and that any

2|| alleged deficiencies in counsel’s performance were not prejudicial. Defendant is not

entitled to relief under 28 U.S.C. § 2255. The Court is not required to hold an

4|| evidentiary hearing.

5 A certificate of appealability must be obtained in order to pursue an appeal from

6 || a final order in a Section 2255 habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(B).

Acertificate of appealability may issue “if the applicant has made a substantial showing

8 || of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A certificate should

9 || issue where the prisoner shows that jurists of reason would find it debatable whether the

10 || petition states a valid claim of the denial of a constitutional right, and whether the

11 || district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473,

484 (2000). The Court finds that reasonable jurists could not find Defendant’s claim

13 || that he was entitled to relief under 28 U.S.C. § 2255 to be debatable. A certificate of

14] appealability 1s denied.

15 IT IS HEREBY ORDERED that motion under 28 U.S.C. § 2255 to vacate, set

aside, or correct sentence by a person in federal custody filed by the Defendant is

17 || denied.

DATED: September 4, 2019

19 bivten~ x. ages

20 United States District Judge

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_9- 16cr1766

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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