Petition for Writ of Certiorari — Adalberto Martinez-Ramirez, Petitioner v. United States

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United States of America, Appellee, v. James Alfred Miller, Appellant.

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

91 F.3d 1160; 1996 U.S. App. LEXIS 19483; 45 Fed. R. Evid. Serv. (Callaghan) 386

No. 95-221OEA

June 10,1996, Submitted

August 6,1996, Filed

Editorial Information: Subsequent History

(1996 U.S. App. LEXIS 1} Rehearing and Suggestion for Rehearing En Banc Denied September 17,

1996, Reported at: 1996 U.S. App. LEXIS 24477.

Editorial Information: Prior History

On Appeal from the United States District Court for the Eastern District of Arkansas.

• f

Disposition:

Affirmed Miller's convictions, vacated his sentence, and remanded this case to the District

Court for resentencing.

Ci**

Counsel who presented argument on behalf of the appellant was Blake

Hendrix of Little Rock, Arkansas.

Counsel who presented argument on behalf of the appellee was

Patrick Harris of Little Rock, Arkansas. In addition the name of Paula J. Casey as United

States Attorney appears on the brief of the appellee.

Judges: Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge,

and ROSENBAUM, * District Judge.

Counsel

CASE SUMMARY

PROCEDURAL POSTURE: Defendant appealed a judgment of the United States District Court for the

Eastern District of Arkansas, which convicted him of conspiring to distribute and to possess with intent to

distribute methamphetamine, 21 U.S.C.S. § 846, distributing methamphetamine, 21 U.S.C.S. §

841(a)(1), and distributing methamphetamine to a pregnant person, 21 D.SVGiS: § 861(f), and sentenced

him under U.S. Sentencing Guideline Manual §3B1.1(a).A conviction for drug-related conspiracy was

proper where defendant sold resale amounts, but sentencing as an organizer or leader was improper

where there was no evidence that he controlled the resale in any way.

OVERVIEW: Defendant was convicted of conspiring to distribute and to possess with intent to distribute

methamphetamine, 21 U.S.C.S. § 846, distributing methamphetamine, 2T U.S.C.S. § 841(a)(1), and

distributing methamphetamine to a pregnant person, 21 U.S.C.S. § 861(f) The district court sentenced

him as the organizer or leader of a criminal activity that involved five or more participants pursuant to

U.S. Sentencing Guideline Manual § 3B1.1(a). In affirming defendant's conviction, the court held that

evidence that defendant sold resale quantities of drugs was sufficient to convict him of conspiracy. The

district court's denial of a continuance based on the government's failure to timely notify defendant of

certain witnesses' criminal backgrounds was not an abuse of discretion where it did not prejudice

defendant. While the district court's refusal to allow extrinsic evidence of a witness's prior inconsistent

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

statement was error, it was harmless given the weight of other evidence. The court reversed and

remanded for resentencing because there was no evidence that defendant controlled his buyers or their

resale. Therefore, application of § 3B1.1(a) was error.

OUTCOME: The court affirmed defendant’s conviction because evidence that he sold resale amounts of

drugs was sufficient to convict on conspiracy and failure to grant a continuance or allow extrinsic

evidence of a witness’s prior inconsistent statement was not prejudicial. The court remanded for

— resentencing because sentencing defendant as an organizer or leader was error where he did not control

any resale.

LexisNexis Headnotes

Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Conspiracy > General

Overview

Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution &

Sale > Conspiracy > Elements

To convict of conspiracy, the government has to establish that an agreement to engage in distributing

drugs existed between two or more people, including the defendant. Although numerous sales of small

amounts for personal use are insufficient to support a conspiracy conviction, evidence of multiple sales

of resale quantities of drugs is sufficient in and of itself to make a submissible case of conspiracy to

distribute.

Criminal Law & Procedure > Pretrial Motions > Continuances

A district court has wide discretion in ruling on motions for continuance's, and a district court's exercise of

that discretion will rarely be overturned.

Criminal Law & Procedure > Witnesses > Impeachment

Evidence > Scientific Evidence > Toxicology

Evidence > Testimony > Credibility > Impeachment > General Overview

Evidence > Testimony > Credibility > Impeachment > Prior Inconsistent Statements

A party may introduce extrinsic evidence of a witness's prior inconsistent statement if the witness is

given a chance to explain the inconsistency, the opposing party is afforded an opportunity to question the

witness about the inconsistency, and the inconsistent statements are material to the substantive issues of

the trial. Fed. R. Evid. 613(b).

Evidence > Relevance > Parol Evidence

Evidence > Testimony > Credibility > General Overview

Evidence > Testimony > Credibility > impeachment > General Overview

Evidence > Testimony > Credibility > Impeachment > Bad Character for Truthfulness > General

Overview

Evidence > Testimony > Credibility > Impeachment > Bad Character for Truthfulness > Opinion &

Reputation

Evidence > Testimony > Credibility > Impeachment > Bad Character for Truthfulness > Specific

Instances

Although Fed. R. Evid. 608(a) permits a party to introduce evidence regarding a witness's reputation for

•' fV*'-.' *;

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

truthfulness, Fed. R. Evid. 608(b) does not permit specific instances of a witness's conduct to be proved

by extrinsic evidence.

Criminal Law & Procedure > Sentencing > Guidelines

Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution &

Sale > Penalties

rl J

Typically, the enhancement under U.S. Sentencing Guideline Manual § 3B1.1(a) applies to a defendant

who employs or otherwise arranges for intermediaries to sell his drugs. The terms "organizer" and

"leader" are broadly interpreted. Thus, the defendant need not "directly control" his intermediaries. But, if

the words "organizer" and "leader" are to have their ordinary meaning, a defendant must do more than

sell for resale.

Criminal Law & Procedure > Sentencing > Guidelines

Applying a plain-meaning approach to "leader and "organizer," their definitions relate to supervision of

people only. Leader is defined as a person who leads as a commander. Organizer is defined as a person

who travels for the purpose of establishing new organizations. A commander commands people, and

organizations are composed of people. Unlike a manager,..a leader's or. prganizer's actions must directly

affect other people. Consequently, a leader or organizer must control orjhfluence other people.

Opinion

Opinion by:

RICHARD S. ARNOLD

Opinion

{91 F.3d 1161} RICHARD S. ARNOLD, Chief Judge.

james Alfred Miller was convicted of three drug-related felonies and sentenced to a prison term of

twenty-four years and four months. We affirm these convictions, but remand this case to the District

Court for resentencing.

At trial, the government introduced evidence showing that from Janyary 1993 through April 1994,

James Miller sold methamphetamine to a number of people. One of .Miller's principal buyers was

Don FU>e, who was a drug dealer. Roe testified that he generally bought four ounces of

methamphetamine at a time, at a cost of $ 5,000 per purchase. On.tWo occasions, Roe purchased

one-pound quantities. The defendant sometimes "fronted" these drugs, that is, he gave them to{1996

U.S. App. LEXIS 2} Roe and did not demand payment until a later date. Roe testified that on

September 5, 1993, he and Jackie Bingham Williams went to Miller's house to buy

methamphetamine. Roe took this purchase back to his home, where the police discovered it later

that day. •

A number of witnesses corroborated Roe's testimony. Lisa Gulledge stated that she accompanied

Roe, whom she described as a well-known drug dealer, on trips to Miller’s house to purchase

methamphetamine. Mark Kenyon, who sold methamphetamine for Roe, testified that in early 1993,

he and Roe purchased methamphetamine from Miller. Donna Carter said that she bought

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

• .:

.\0ptst.

methamphetamine from Roe, and had seen the defendant dispense this drug to Guliedge, Kenyon,

and Kathy Reeves. Also, Jackie Bingham Williams confirmed Roe's account of the events of

September5, 1993.

Two other important witnesses were Jerry Wilson and Veronica Simone. Wilson testified that,

beginning in the spring of 1993, he purchased one-eighth of an ounce of methamphetamine from

Miller every month. Eventually, he started buying a pound at a time. The defendant sometimes

fronted these drugs to Wilson, who resold them. Veronica Simone testified that when she was

seven{1996 U.S. App. LEXIS 3} and one-half months’.pregnant, Miller.sold her methamphetamine.

{91 F.3d 1162} The jury convicted Miller of conspiring to distribute and to possess with intent to

distribute methamphetamine, 21 U.S.C. § 846, distributing methamphetamine, 21 U.S.C. §

841(a)(1), and distributing methamphetamine to a pregnant person, 21 U.S.C. § 861(f). Determining

__that Miller was the "organizer or leader of a criminal activity that involved five or more participants,"

U.S.S.G. § 3B1.1(a), the District Court increased Miller's base offense level by four levels and

sentenced him to a prison term of twenty-four years and four months.

II.

On appeal, Miller argues that there was insufficient evidence to support his conspiracy conviction,

and that the District Court erred by refusing to grant his request for a continuance and by not

permitting a number of proposed defense witnesses to testify. Miller also asserts that in sentencing

him, the District Court should not have applied a four-level enhancement.

We begin with Miller's claim that the government did not produce enough evidence to support his

conspiracy conviction. At trial, the government introduced evidence that Miller sold one-pound

quantities of methamphetamine, {1996 U.S. App. LEXIS 4} worth $ 10,000 each, to Don Roe, a

known drug dealer, and to Jerry Wilson. The government argues tHdt the jury could have inferred

that because Miller made such large sales, he knew that his purchasers were reselling the

methamphetamine. According to the government, the fact that Millej; 'fronted" the methamphetamine

to Roe, Wilson, Mark Kenyon, and Kathy Reeves also shows that Miller knew that the

methamphetamine was being resold, because the only way that Miller's buyers could have paid him

back was to resell the drugs.

'S' To convict Miller of conspiracy, the government had to "establish that an agreement to engage in

distributing drugs existed between two or more people, including the defendant." United States v.

Rodgers, 18 F.3d 1425, 1428-29 (8th Cir. 1994). Although "numerous sales of small amounts ... for

personal use are insufficient to support a [conspiracy] conviction," United States v. Eneft, 79 F.3d

104, 105 (8th Cir. 1996), we have held that "evidence of multiple sales of resale quantities of drugs is

sufficient in and of itself to make a submissible case of conspiracy to distribute." Ibid. 1 The

government did show that Miller sold resale quantities of drugs. {1996 U.S. App. LEXIS 5} This

evidence was, therefore, sufficient to convict Miller of conspiracy.

Next, Miller asserts that the District{1996 U.S. App. LEXIS 6} Courterred by not granting his request

for a continuance. There is "little question that a district court has wide discretion in ruling on motions

for continuances, and a court’s exercise of that discretion will rarely bd overturned." United States v.

Pruett, 788 F.2d 1395, 1396 (8th Cir. 1986). We do not believe that tl^e District Court abused its

discretion in this case.

.'V

Miller based his request for a continuance, which he made on the rpcming of trial, on three grounds.

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

First, Miller noted that the prosecution had not disclosed that its principal witness, Don Roe, had

been arrested in 1993 for drug possession and had tried to bribe the police.officers who had arrested

him. (The government says that its failure to disclose these facts was inadvertent.) Miller’s counsel

did discover this information the week before trial and was able to use it to {91 F.3d 1163}

cross-examine Roe. Miller suffered no prejudice from the Court's failure to grant a continuance.

The same is true of the other two grounds on which Miller based his motion for a continuance -- that

the prosecution had not told Miller until the day before trial that Charlotte Kirks, a government

witness, had a criminal record, and that{1996 U.S. App. LEXIS 7} the prosecution did not disclose

that Jackie Bingham Williams, another government witness, had lost custody of her child. In each

case, the prosecution's failure to disclose the information, which it says yvas inadvertent, did not

interfere with the ability of Miller's counsel to use these facts duringcross-examination. Thus, the

District Court's refusal to grant a continuance was not an abuse of discretion.

We now address Miller’s evidentiary claims. The District Court did not permit Miller to call a number

of witnesses who, Miller asserts, would have impeached the testimony of Don Roe. Weldon Davis,

the Jailor of Pulaski County, Arkansas, would have testified that on September 6, 1993, when Roe

was detained on state drug charges, Roe told a fellow prisoner that only two people, neither of whom

was Miller, knew about the pound of methamphetamine the police had discovered in his house on

September 5. Roe testified that he never made this statement.

We believe that the District Court erred by refusing to allow the defendant to question Weldon Davis.

A party may introduce extrinsic evidence of a witness's prior inconsistent statement if the witness is

given a chance to explain{1996 U.S. App. LEXIS 8} the inconsistency, the opposing party is

afforded an opportunity to question the witness about the inconsistency, and the inconsistent

statements are material to the substantive issues of the trial. Fed. R; Evid. 613(b); United States v.

Roulette, 75 F.3d 418, 423 (8th Cir. 1996). Miller's lawyer asked Roe to explain his prior statement,

and the government had the opportunity to question Roe on redirect examination. Also, Weldon

Davis's testimony would have been relevant to whether Miller sold ROe the methamphetamine that

the police found in Roe's house — certainly a substantive trial issue,;; '

However, this error does not cause us to reverse Miller's conviction. Jackie Bingham Williams

testified that she accompanied Roe on his trip to Miller's house to purchase the one pound of

methamphetamine that the police discovered on September 5. Williarps^s testimony corroborates

Roe's account of the events of September 5 and leads us to conclude thatJhe District Court's refusal

to allow Weldon Davis to testify was harmless error.

The defendant also asserts that he should have been permitted to call aS witnesses three police

officers who would have testified that Roe had attempted to bribe{1996 U.S. App. LEXIS 9} them.

The officers' testimony would not have shown that Roe had made an inconsistent statement material

to whether Miller was guilty of the crimes for which he was being tried. Instead, the officers'

statements would have been used purely to attack Roe's character. Trials are about charges in the

indictment, not the character of the witnesses. Thus, although Federal Rule of Evidence 608(a)

permits a party to introduce evidence regarding a witness's reputation for truthfulness, Rule 608(b)

"does not permit specific instances of a witness's conduct to be proved by extrinsic evidence." United

States v. Johnson, 968 F.2d 765, 766 (8th Cir.), cert, denied, 506 U,S. 980, 121 L. Ed. 2d 386, 113

S. Ct. 481 (1992) (citation omitted). We agree with the District Court that the proposed testimony of

the three officers was inadmissible.

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

i- ••

Finally, Miller argues that the District Court should not have given hliri a four-level enhancement for

being the "organizer or leader of a criminal activity that involved flvgcr^more participants." U.S.S.G.

§ 3B1.1(a). Typically, this enhancement applies to a defendant who employs or otherwise arranges

for intermediaries to sel irjis-dfugs-. See,' vm.y. ,~Unite^States v. McMullen., {1996 U.S. App. LEXIS 10}

86 F.3d 135, 138{8tht3ir. 1996); United States v. LogSf\54 F.3d 452, 456 (8th Cir. {91 F.3d 1164}

1995); United States v. Greene, 995 F.2d 793, 802 (8th CiK 1993). We have, however, "broadly

interpreted the terms 'organizer' and 'leader,'" United StatesV Maxwell, 25 F.3d 1389, 1399 (8th

Cir.), cert, denied, 513 U.S. 1031, 115S. Ct. 610, 130 L. Ed/2d 519(1994). Thus, the defendant

need/not "directly control" his intermediaries. Ibid. But, if the words "organizer" and "leader" are to

have\their ordinary meaning, a defendant must do more than sell for resale. See United States v.

975 F.2d 1357, 1364 n.7 (8th Cir. 1992) ("we have always required evidence that the

Rowl

Fed-the aid of underlings"). .

defendanfdt

Miller was not the "organizer" or "leader" of a conspiracy. Although Miller sold large enough

quantities of methamphetamine that it is reasonable to infer that he^kriew the drugs were being

resold, Miller did not have any involvement in the resales. There is no evidence that Miller controlled

his buyers in their resale of the methamphetamine. The government Contends that the four-level

enhancement should, nevertheless, apply because Miller supplied the drugs that his

co-conspirators{1996 U.S. App. LEXIS 11} later resold. But, as the jifth Circuit has explained,

irv*

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controlling property does not make one an "organizer" or a "leader' ;./ ,

•.

Applying a plain-meaning approach to "leader and ''organizer," we ;note that.their definitions

relate to supervision of people only. Leader is defined as a person who .leads as a commander.

Webster's Third New International Dictionary 1283 (1981). Organizer,is defined as a person who

travels for the purpose of establishing new organizations. Id. at 1590. A commander commands

people, and organizations are composed of people. Unlike a manager, a leader’s or organizer's

actions must directly affect other people. Consequently, a leader or organizer must control or

influence other people. United States v. Ronning, 47 F.3d 710, 712 (5th Cir. 1995). We therefore

agree with Miller that the District Court should not have applied >a fourrlevel enhancement on this

record.

For these reasons, we affirm Miller's convictions, vacate his sentence, and remand this case to the

District Court for resentencing.

Footnotes

• :

A number of circuits disagree with this view. See United States v. L-ephick, 18 F.3d 814, 819 (9th

Cir.) ("to show a conspiracy, the government must show not only that [the defendant] gave drugs to

other people knowing that they would distribute them, but also that lie had an agreement with these

individuals to so further distribute the drugs."), cert, denied, 513 u:S: 856, 130 L. Ed. 2d 100, 115 S.

Ct. 162 (1994); United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.) (en banc) (the sale of "large

quantities of controlled substances, without more, cannot sustain a Conspiracy conviction"), cert.

denied, 510 U.S. 982, 126 L. Ed. 2d 433, 114 S. Ct. 482 (1993); United States v. Howard, 966 F.2d

1362, 1364 (10th Cir. 1992) ("the huge quantity of crack cocaine involved in this case permits an

inference of conspiracy, but by itself this is not enough to convict defendant"). Nevertheless, as a

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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panel, we are not free to depart from our precedents.

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

APPEN DIV

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 20-2561

Adalberto Martinez-Ramirez

Appellant

United States of America

Appellee

Appeal from U.S. District Court for the District of Nebraska - Omaha

(8:18-cv-00490-RFR)

ORDER

The petition for rehearing by the panel is denied.

March 15,2021

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

Is/ Michael E. Gans

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 20-2561

Adalberto Martinez-Ramirez

Petitioner - Appellant

United States of America

Respondent - Appellee

Appeal from U.S. District Court for the District of Nebraska - Omaha

(8:18-CV-00490-RFR)

JUDGMENT

Before GRUENDER, WOLLMAN, and STRAS, Circuit Judges.

This appeal comes before the court on appellant's application for a certificate of

appealability. The court has carefully reviewed the original file of the district court, and the

application for a certificate of appealability is denied. The appeal is dismissed.

November 02, 2020

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

Appellate Case: 20-2561

Page: 1

Date Filed: 11/02/2020 Entry ID: 4971776

8:16-cr-00196-RFR-SMB Doc #289 Filed: 05/29/20 Page 1 of 12 - Page ID # 998

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA,

Plaintiff,

8:16CR196

ADALBERTO MARTINEZ-RAMIREZ,

MEMORANDUM

AND ORDER

Defendant.

This matter is before the Court on Adalberto Martinez-Ramirez’s (“MartinezRamirez”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a

Person in Federal Custody (Filing No. 227). The government opposes (Filing No. 237)

post-conviction relief. For the reasons stated below, Martinez-Ramirez’s § 2255 motion is

denied.

BACKGROUND

On July 19, 2016, a federal grand jury charged Martinez-Ramirez and others with

drug trafficking and money laundering in an eleven-count Superseding Indictment (Filing

No. 71). Martinez-Ramirez retained attorney Bassel F. El-Kasaby (“El-Kasaby”) to defend

him.

Through counsel, Martinez-Ramirez moved to suppress (Filing No. 102) the

custodial statements he made to law enforcement following his arrest and all evidence

obtained as a result of those statements. On November 4, 2016, the Court granted (Filing

No. 115) Martinez-Ramirez’s motion and suppressed the challenged evidence.

Following successful plea negotiations, Martinez-Ramirez pled guilty on March 31,

2017, to Counts I and X of the Superseding Indictment. Count I charged him with

conspiring to distribute and possess with intent to distribute 500 grams or more of a mixture

or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

8:16-cr-00196-RFR-SMB Doc # 289 Filed: 05/29/20 Page 2 of 12 - Page ID # 999

(b)(1) and 846. Count X charged him with conspiring to commit money laundering, in

violation of 18 U.S.C. § 1956(h). Under the terms of Martinez-Ramirez’s written plea

agreement (Filing No. 169), the government agreed to dismiss the remaining charges

against him at sentencing, and Martinez-Ramirez agreed to limit his rights to appeal and

collaterally attack his conviction and sentence. In changing his plea, Martinez-Ramirez

testified under oath that El-Kasaby had done everything he had asked him to do and that

Martinez-Ramirez did not have any concerns or complaints about El-Kasaby or his

representation.

At a contested sentencing hearing on October 10, 2017, the Court accepted

Martinez-Ramirez’s plea agreement with the government. Upon hearing the extensive

evidence presented at the hearing, reviewing the presentence investigation report (“PSR”)

the probation office prepared on Martinez-Ramirez (Filing No. 204), and analyzing the 18

U.S.C. § 3553(a) sentencing factors, the Court sentenced Martinez-Ramirez to 324 months

imprisonment on Count I and 240 months on Count X, to run concurrently. MartinezRamirez did not appeal.

On October 16, 2018, Martinez-Ramirez timely moved for relief under § 2255,

alleging El-Kasaby provided ineffective assistance of counsel in violation of the Sixth

Amendment to the U.S. Constitution. The Court set the matter for an evidentiary hearing

and appointed Michael J. Wilson to represent Martinez-Ramirez under the Criminal Justice

Act of 1964, as amended, 18 U.S.C. § 3006A.

At the hearing on February 21,2020, Martinez-Ramirez, who participated by phone

with the assistance of an interpreter, and El-Kasaby both testified. The government also

admitted into evidence eight exhibits consisting of emails and attachments exchanged

between El-Kasaby and the government during plea negotiations and law-firm records of

El-Kasaby’s representation of Martinez-Ramirez.

After carefully considering that

8:16-cr~00196-RFR-SMB Doc #289 Filed: 05/29/20 Page 3 of 12 - Page ID # 1000

evidence and the balance of the record in this case, the Court finds Martinez-Ramirez is

not entitled to any relief.

II.

DISCUSSION

Allegations of Ineffective Assistance of Counsel

The Sixth Amendment guarantees a criminal defendant the right to effective

assistance of counsel at all critical stages of a criminal proceeding, including plea

negotiations, sentencing, and appeal. U.S. Const, amend. VI; Lee v. United States, 582

U.S.

, 137 S. Ct. 1958, 1964 (2017). Section 2255(a) authorizes a federal prisoner

whose “sentence was imposed in violation of’ that right to move the Court “to vacate, set

aside or correct [his] sentence.”

Martinez-Ramirez so moves, asserting El-Kasaby was unconstitutionally ineffective

in failing to (1) file an appeal as directed, (2) object to the inclusion of certain offense-level

adjustments under the United States Sentencing Guidelines (“U.S.S.G. or “Guidelines”) in

his PSR, and (3) timely communicate a more-favorable plea offer from the government

that Martinez-Ramirez says he would have accepted. To establish ineffective assistance of

counsel, a prisoner generally must meet the familiar two-part test articulated in Strickland

v. Washington by showing counsel’s representation was both deficient and prejudicial. 466

U.S. 668, 687-88 (1984) (explaining counsel’s errors must be “so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”). In

other words, the prisoner must show his “counsel’s representation fell below an objective

standard of reasonableness” and “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.” Id. at 688,

694.

The prisoner’s burden is a heavy one. See United States v. Apfel, 97 F.3d 1074,

1076 (8th Cir. 1996). He must overcome “a strong presumption that [his] counsel’s

conduct falls within the wide range of reasonable professional assistance” and could be

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considered sound strategy. Strickland, 466 U.S. at 689. “It is not sufficient for [him] to

show that the error had some ‘conceivable effect’ on the result of the proceeding because

not every error that influences a proceeding undermines the reliability of the outcome of

the proceeding.” Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir. 2004) (quoting Strickland,

466 U.S. at 693). Martinez-Ramirez does not meet his burden.

Failure to File an Appeal

Martinez-Ramirez first argues El-Kasaby was ineffective in failing to file a notice

of appeal despite Martinez-Ramirez’s instructions to do so. That claim is a little different

than the others. “[A]n attorney’s failure to file a notice of appeal after being instructed to

do so by his client constitutes ineffective assistance entitling petitioner to section 2255

relief, no inquiry into prejudice or likely success on appeal being necessary.” Barger v.

United States, 204 F.3d 1180, 1182 (8th Cir. 2000). “Even if the client waived his right to

appeal as part of a plea agreement, prejudice is presumed if the client asked his attorney to

file a notice of appeal and the attorney did not do so.” United States v. Sellner, 773 F.3d

927, 930 (8th Cir. 2014).

To succeed on this claim, Martinez-Ramirez “must show that he manifestly

‘instructed [his] counsel to file an appeal.’” Walking Eagle v. United States, 742 F.3d

1079, 1082 (8th Cir. 2014) (alteration in original) (quoting Barger, 204 F.3d at 1182).

Martinez-Ramirez’s “bare assertion” that he made such “a request is not by itself sufficient

to support a grant of relief, if’ more-credible evidence indicates otherwise. Barger, 204

F.3d at 1182. Such is the case here.

Martinez-Ramirez testified he and EI-Kasaby discussed the possibility of an appeal

four times: (1) when he signed the plea agreement, (2) when he received his PSR,

(3) immediately after the sentencing hearing, and (4) after the time to appeal had passed.

According to Martinez-Ramirez, when he told El-Kasaby he was concerned about pleading

guilty and getting a long sentence, El-Kasaby repeatedly assured him he could appeal no

matter what happened in court.

Martinez-Ramirez further testified that after he was

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sentenced, El-Kasaby again told him not to worry about the length of his sentence because

he would file an appeal but never did.

On cross-examination, Martinez-Ramirez claimed neither his plea agreement nor

El-Kasaby ever said anything about waiving or limiting his right to appeal. He testified it

was not until after he asked El-Kasaby why he had not appealed within the fourteen-day

deadline that El-Kasaby told him there was no possibility of appeal and that nothing could

be done. Martinez-Ramirez contends that before that, he fully expected El-Kasaby to file

an appeal.

El-Kasaby denies Martinez-Ramirez instructed him to appeal. El-Kasaby testified

he advised Martinez-Ramirez that pleading guilty would limit his appeal rights under the

terms of his plea agreement. El-Kasaby explained that when Martinez-Ramirez raised the

possibility of appeal after sentencing, El-Kasaby reminded him of his waiver and warned

him an appeal could be risky if the appeal breached the plea agreement. According to ElKasaby, Martinez-Ramirez never asked him to file an appeal after that and El-Kasaby never

told him he would. El-Kasaby states that if Martinez-Ramirez had asked, he would have

filed an appeal and a brief under Anders v. California, 386 U.S. 738 (1967).

While the supporting evidence does not weigh heavily either way, the Court finds

El-Kasaby’s testimony on this point to be more credible because it is more consistent with

the record as a whole.

For example, Martinez-Ramirez now says he expected all along

that El-Kasaby would appeal and suggests he never knew of any limit on his appeal rights

until after the time to appeal had expired. But in his signed plea agreement he “knowingly

and expressly waive[d] any and all rights to appeal [his] conviction and sentence” with

very limited exceptions. And in changing his plea, Martinez-Ramirez twice advised the

Court he understood he was giving up nearly all his rights to appeal his conviction and

sentence. In contrast, El-Kasaby credibly testified he explained to Martinez-Ramirez that

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he had more to lose than gain from an appeal given his appeal waiver and that MartinezRamirez never asked him to appeal after that.

Martinez-Ramirez has not persuasively established he manifestly instructed ElKasaby to appeal despite his appeal waiver.

Failure to Object to the Aggravating-Role Adjustment

Martinez-Ramirez’s next argument relates to the application of a four-level

aggravating-role increase he received under U.S.S.G. § 3Bl.l(a) for being “an organizer

or leader of a criminal activity that involved five or more participants or was otherwise

extensive.”

In Martinez-Ramirez’s view, El-Kasaby rendered ineffective assistance by

failing to object to that increase on the grounds that Martinez-Ramirez was not a leader or

organizer with respect to the money-laundering charge. The argument falls short.

Martinez-Ramirez’s counts of conviction—Count I (drug conspiracy) and Count X

(money-laundering conspiracy)—were grouped for Guideline-calculation purposes. See

U.S.S.G. § 3D1.2(d).

Under § 3D1.3(b), the Guideline for the money-laundering

conspiracy—§ 2S1.1—provided the offense level for the group because it resulted in the

highest offense level. Section 2S1.1(a)(1), in turn, required the Court to draw MartinezRamirez’s base offense level from the underlying drug conspiracy because, as MartinezRamirez points out, he “committed the underlying drug crime and the Base Offense Level

applicable thereto could be determined.”

After increasing Martinez-Ramirez’s base

offense level two levels under § 2SI. 1(b)(2)(B) because Martinez-Ramirez was convicted

under 18 U.S.C. § 1956, the Court added four levels under § 3Bl.l(a) based on MartinezRamirez’s role as a leader or organizer.

Martinez-Ramirez contends that was a mistake that El-Kasaby should have

prevented. He bases the argument on Application Note 2(C) to § 2S1.1(a)(1), which

provides that the “application of any Chapter Three adjustment shall be determined based

on the offense covered by [§ 2S1.1] (i.e., the laundering of criminally derived funds) and

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not on the underlying offense from which the laundered funds were derived.” As MartinezRamirez sees it, “the sentencing record in this case” establishes (1) the Court erroneously

applied the four-level increase under § 3Bl.l(a) based solely on his role in the underlying

drug offense, not the money-laundering offense, and (2) El-Kasaby failed to object to the

calculation error, subjecting Martinez-Ramirez to a much longer sentence.

Martinez-

Ramirez asserts the government never alleged he was “a leader or organizer with respect

to the laundering Count.. . and has, therefore, waived such.”

The government rejects Martinez-Ramirez’s position.

It notes “the Guidelines

offense calculations in the PSR did not differentiate between Martinez-Ramirez’s role in

the drug conspiracy and the money laundering conspiracy.” Although the government does

not dispute that much of the discussion of the role enhancement at the sentencing hearing

focused on Martinez-Ramirez’s role as a leader and organizer in the drug conspiracy, the

government maintains “Martinez-Ramirez has not shown that his counsel was ineffective

concerning the role enhancement.” Alternatively, the government states that “[e]ven

assuming error, Martinez-Ramirez was not prejudiced because the evidence supported a

role enhancement as to the money laundering conspiracy.”

According to the government, Martinez-Ramirez fails to recognize the substantial

overlap between the two conspiracies and ignores what would have happened if El-Kasaby

had “objected to the manner in which the role enhancement was analyzed,” including the

presentation of additional evidence. In support, the government primarily relies on Avila

v. United States, No. CRM-11-319-2,2017 WL 1088354, at *12 (S.D. Tex. Feb. 17,2017),

report and recommendation adopted, No. 7:14-CV-50, 2017 WL 1079254 (S.D. Tex. Mar.

21, 2017), in which the court rejected a nearly identical argument based on Application

Note 2(C) because the prisoner seeking relief under § 2255 could not establish his counsel’s

’By Martinez-Ramirez’s calculation, El-Kasaby’s “unprofessional errors and

omissions”—and the resulting increase in Martinez-Ramirez’s offense level and Guideline

range—caused Martinez-Ramirez to suffer a 62-month increase in his sentence.

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representation was deficient and prejudicial. In reaching that conclusion, the Avila court

reasoned the prisoner failed “to account for the practical effects of such an objection,” such

as a likely amendment to the presentence investigation report addressing the issue and a

counter argument from the government. Id. at * 11.

The Avila court further found the prisoner failed “to show that his sentence was

improperly calculated or that the [sentencing court] lacked a sufficient, reliable factual

basis to support the enhancement as applied.” Id. Emphasizing that the prisoner did not

cite any “binding or persuasive precedent saying that the [sentencing] court was required

to separate [his] role in the concomitant criminal activities for each offense with . . .

exacting surgical precision,” the Avila court decided the sentencing court could “draw

reasonable inferences from the” reliable, unrebutted facts in the presentence investigation

report and reasonably conclude—based on that report and the facts in the record—that the

prisoner “played a significant role in the money laundering-independent of the drug

Count.” Id. at 11-12.

The government presses similar arguments here. According to the government,

Martinez-Ramirez’s ineffective-assistance claim based on Application Note 2(C) fails

because “[t]he two conspiracies” in this case “were intertwined” and the evidence

overlapped.

See United States v. Robertson, 883 F.3d 1080, 1086 (8th Cir. 2018)

(explaining how drug-trafficking and money-laundering conspiracies can be intertwined).

Highlighting key evidence from the contested sentencing hearing and the PSR, the

government contends “[t]he same evidence supporting Martinez-Ramirez’s role in the

methamphetamine conspiracy also showed his role in the money laundering conspiracy.”

In particular, the government emphasizes the number of participants involved in both

distributing the drugs and laundering the proceeds and their extensive use of a funnel

account to move proceeds from Omaha to the Mexico border. The government maintains

the aggravating-role enhancement was properly applied because the record evidence

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establishes “[t]here were five or more participants in each conspiracy, each was otherwise

extensive and Martinez-Ramirez acted as an organizer or leader in both. «2

Having carefully reviewed the parties’ arguments and the record in this case,

including the factual basis for Martinez-Ramirez’s guilty plea, the PSR, and the sentencing

transcript, the Court finds Martinez-Ramirez has not shown he is entitled to relief on this

claim. Martinez-Ramirez faults El-Kasaby for failing to object more specifically to the

aggravating-role enhancement for the money-laundering count, but El-Kasaby vigorously

objected to the enhancement as generally set forth in the PSR, describing it as the most

important sentencing issue. At the sentencing hearing, El-Kasaby—perhaps more focused

on money laundering than anyone—affirmatively challenged the factual basis for the

enhancement as it related to the money-laundering charge.

El-Kasaby specifically

questioned the government’s witnesses about the scope of the money-laundering

conspiracy, Martinez-Ramirez’s connection to the funnel account, and his alleged role as

a leader or organizer of the money-laundering conspiracy.

At this point, the question is not whether El-Kasaby could have done more to

challenge the enhancement or articulate the precise issue; the question is whether ElKasaby’s “representation fell below an objective standard of reasonableness.” Strickland,

466 U.S. at 688. The Court concludes it did not. In these circumstances, any error in

failing to more effectively object to the aggravating-role enhancement for the money

laundering offense was not so serious that El-Kasaby “was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. at 687.

2The Court notes the government’s position aligns (at least to some degree) with

United States v. Lozano, 745 F. App’x 466, 467 (3d Cir. 2018) (unpublished), in which the

Third Circuit rejected the defendant’s argument that Application Note 2(C) ^‘precluded the

District Court from considering his role as a supplier in deciding if the four-level organizer

adjustment under U.S.S.G. § 3B1.1(a) applied to him” and upheld the court’s determination

that the defendant “was an organizer or leader of both the drug conspiracy and the money

laundering conspiracy.”

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Even assuming Martinez-Ramirez could establish El-Kasaby’s objection was

deficient, he still fails to show prejudice. When all is said and done, the Court is not

convinced there is a reasonable probability that Martinez-Ramirez would have received a

lower sentence even if El-Kasaby had made Martinez-Ramirez’s proposed objection based

on Application Note 2(C). See Strickland, 466 U.S. at 694 (“The defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.”). The evidence presented at the sentencing

hearing fairly established that Martinez-Ramirez was a leader or organizer in both

conspiracies under § 3Bl.l(a).

Failure to Timely Relay a More-Favorable Plea Offer

Martinez-Ramirez last argues El-Kasaby “was ineffective for failing to timely

communicate a plea offer” from the government in January 2017 that he calculates would

have reduced his sentencing exposure by 62 months. Martinez-Ramirez states he first

learned about the offer when reviewing the materials in the case file he obtained from ElKasaby. Martinez-Ramirez avers he would have accepted the more favorable offer had he

known about it before it expired.

The government does not dispute that the offer was made or that El-Kasaby had a

duty to convey it. See Missouri v. Frye, 566 U.S. 134, 145 (2012) (“[A]s a general rule,

defense counsel has the duty to communicate formal offers from the prosecution to accept

a plea on terms and conditions that may be favorable to the accused.”). The issue is whether

El-Kasaby conveyed the offer to Martinez-Ramirez. El-Kasaby says he did; MartinezRamirez says he didn’t.

Although El-Kasaby’s record keeping leaves a lot to be desired, see, e.g., Rodriguez

v. United States, No. 3:10-CR-05018-DGK, 2016 WL 1531819, at *3 (W.D. Mo. Apr. 14,

2016) (finding defense counsel’s testimony rebutting his client’s “allegations that he failed

to forward all plea offers to him is particularly trustworthy because it [wa]s corroborated

by numerous emails exchanged between Counsel and the prosecutor”), the Court is

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satisfied he did convey the offer and Martinez-Ramirez rejected it. At the § 2255 hearing,

El-Kasaby credibly testified that—consistent with his standard practice—he conveyed

every offer the government made to Martinez-Ramirez (including the January 2017 offer)

shortly after receiving it. El-Kasaby further testified at some length about his discussions

with Martinez-Ramirez about his plea negotiations with the government. According to ElKasaby, he advised Martinez-Ramirez to accept the January 2017 offer because of the

overwhelming evidence against him, but Martinez-Ramirez refused at that time to accept

any deal that required him to serve more than five years in prison.

The Court does not believe Martinez-Ramirez’s claim that El-Kasaby never relayed

the offer in question and that the only time he discussed a plea offer with El-Kasaby was

when he signed his plea agreement on March 26, 2017. Martinez-Ramirez’s hearing

testimony reveals that he frequently makes absolute statements that fail to withstand closer

scrutiny. Those dubious statements and his admitted inability to fully recall his meetings

with El-Kasaby undermine his credibility.

No Certificate of Appealability

Martinez-Ramirez cannot appeal the denial of his § 2255 motion without a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b). This Court

cannot issue a certificate of appealability unless Martinez-Ramirez “has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make such

a showing “by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.

322, 327 (2003). Upon careful review, the Court finds Martinez-Ramirez has not made the

necessary showing; therefore, the Court will not issue a certificate of appealability.

In light of the foregoing,

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IT IS ORDERED:

Adalberto Martinez-Ramirez’s Motion under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence (Filing No. 227) is denied.

No certificate of appealability will issue.

A separate judgment will be entered.

The Clerk of the Court is directed to mail a copy of this Memorandum and

Order and the Judgment to Adalberto Martinez-Ramirez at the address of

record for his current place of incarceration.

Dated this 28th day of May 2020.

BY THE COURT:

Robert F. Rossiter, Jr.

United States District Judge

Additional material

from this filing is

available in the

Clerk's Office.

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.