Carreno-Gutierrez v. USA

Filing 18

ORDER - IT IS ORDERED that Magistrate Judge Michelle H. Burns's R&R (Doc. 14 ) is ACCEPTED and Petitioner Juan Carreno-Gutierrez's Second Amended Motion to Vacate Sentence (Doc. 8 ) is DENIED with prejudice. IT IS FURTHER ORDERED that the Motion to Vacate under 28 U.S.C. § 2255 (Doc. 332) in Case No. CR-09-1114-PHX-GMS is denied. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event Movant files an appeal, the Court decli nes to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). IT IS FURTHER ORDERED directing the Clerk of Court TERMINATE this action. Signed by Judge G Murray Snow on 5/26/2015. (ACL)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Juan Carreno-Gutierrez, Movant, 10 11 v. 12 No. CV-13-01114-PHX-GMS No. CR-09-1114-PHX-GMS USA, ORDER 13 Respondent. 14 15 16 Pending before the Court are Juan Carreno-Gutierrez’s Second Amended Motion 17 to Vacate Sentence (Doc. 8) and United States Magistrate Judge Michelle H. Burns’s 18 Report and Recommendation (“R&R”), which recommends that the Court deny and 19 dismiss the Motion with prejudice. (Doc. 14.) Movant filed objections to the R&R on 20 April 10, 2015. (Doc. 15.) Therefore, the Court will review the record on all relevant 21 matters de novo. For the following reasons, the Court adopts the R&R and denies the 22 Motion. 23 BACKGROUND 24 Movant was indicted in 2010 along with three co-defendants on charges of 25 conspiracy and possession with the intent to distribute 50 grams or more of 26 methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(viii), and 27 possession of firearms in furtherance of a drug trafficking offense, in violation of 18 28 U.S.C. § 924(c). The Government tendered a plea agreement to Movant, under which 1 Movant would plead guilty to one count of violating § 924(c)(1)(a)(i) and receive a 2 stipulated sentence of 60 months in prison. (Doc. 11, Ex. C, at 4.) Plea agreements were 3 also offered to all of the remaining defendants. Each plea was “expressly conditioned on 4 all co-defendants pleading guilty in this case.” (Id.) If any co-defendant did not plead 5 guilty, the Government reserved the right to withdraw from any plea agreements reached 6 with the other co-defendants and proceed to trial. (Id.) 7 After the plea agreements were presented, Movant’s counsel purportedly met with 8 Movant, the other trial defendants, and their defense counsel. (Id., Ex. D.) Movant’s 9 counsel has stated that during this meeting, he advised Movant of the terms of the plea 10 agreement and the potential sentence Movant would face if he were convicted following 11 a trial—which would trigger mandatory minimum terms of incarceration—and “strongly 12 recommended that he accept the proposed plea agreement.” (Id., Ex. D, at 1.) After 13 meeting with Movant, counsel e-mailed the Government and rejected the plea agreement 14 on behalf of Movant. (Id., Ex. B.) The other co-defendants also rejected the plea 15 agreements that had been tendered to them. (Id., Ex. D.) 16 At the final pretrial conference, the Government made a formal record of the 17 offering of a plea agreement to Movant, the terms of the agreement, and Movant’s 18 rejection of the agreement. Other defense counsel similarly memorialized their clients’ 19 rejections of the plea offers. No defendant objected at the time. After a trial, a jury found 20 Movant guilty, and the Court sentenced Defendant to a term of 180 months 21 imprisonment, followed by a five-year term of supervised release. Movant unsuccessfully 22 appealed his conviction to the Ninth Circuit Court of Appeals and filed a petition for 23 certiorari to the United States Supreme Court, which was denied. Movant now moves to 24 vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on grounds of 25 ineffective assistance of counsel arising out of the plea agreement process. (Doc. 6.) 26 STANDARD OF REVIEW 27 A federal prisoner may seek relief under 28 U.S.C. § 2255(a) if his sentence was 28 imposed in violation of the United States Constitution or the laws of the United States, -2- 1 was in excess of the maximum authorized by law, or is otherwise subject to collateral 2 attack. When a prisoner petitions for post-conviction relief, this Court “may accept, 3 reject, or modify, in whole or in part, the findings or recommendations made by the 4 magistrate.” Id. § 636(b)(1). If a Movant files timely objections to the R&R, the district 5 judge must make a de novo determination of those portions of the report or specified 6 proposed findings or recommendations to which objection is made. Id.; United States v. 7 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Fed. R. Civ. P. 72(b). 8 DISCUSSION 9 Movant asserts three claims that trial counsel was ineffective for (1) advising 10 Movant not to accept the plea agreement offered by the Government; (2) failing to advise 11 Movant that he faced deportation if he were convicted at trial; and (3) failing to advise 12 Movant to sign the plea agreement so that he could receive a reduction of sentence based 13 on acceptance of responsibility. Movant argues that, but for these alleged errors, he 14 would have accepted the proffered plea and received a more favorable disposition. The 15 R&R concludes that the factual predicate for Movant’s claims is contradicted by the 16 record. (See Doc. 14 at 6.) 17 To prevail on an ineffective assistance claim, the party seeking relief must show 18 (1) that counsel’s representation fell below an objective standard of reasonableness; and 19 (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the 20 result of the proceeding would have been different. See Strickland v. Washington, 466 21 U.S. 668, 687–88 (1984). “If it is possible to dispose of an ineffectiveness claim on the 22 ground of lack of sufficient prejudice, we may do so without examining the performance 23 prong.” Id. at 697. 24 Movant’s first three1 objections to the R&R are insufficient to raise a reasonable 25 1 26 27 28 Movant’s third objection is to the Magistrate Judge’s characterization of his claims as self-serving, wherein Movant argues that the terms of the plea agreement were such that “[a]nyone with common sense in the defendant’s position would opt to take the offer of the Government. . . .” (Doc. 15 at 3.) Movant’s desire to have been permitted to accept a guilty plea with the Government under the terms initially offered, independent of his co-defendants’ pleading guilty, is not the kind of specific challenge to the legal and factual findings made by the Magistrate Judge required to trigger de novo review of the -3- 1 question as to the adequacy of his trial counsel. Even if the trial record supports his 2 statement of events, Movant has not demonstrated any prejudice suffered by counsel’s 3 alleged failure to meet with him independently of his co-defendants to discuss the plea 4 agreement or any deficiencies in the colloquy with the Court in which Movant’s rejection 5 of the plea was put on the record. The plea agreement offered to Movant was part of a 6 “package plea” that was conditioned on the guilty pleas of all co-defendants; no 7 individualized plea agreement was offered to Movant specifically. Movant acknowledges 8 as much in his Objections, and further notes that his co-defendants opted not to plead 9 guilty, causing him to lose out on the plea bargain. (See Doc. 15 at 1–2.) Therefore, 10 because Movant could not have apparently accepted a plea agreement with the 11 Government, he cannot satisfy the second prong of the Strickland test. Cf. United States 12 v. Wheat, 813 F.2d 1399, 1405 (9th Cir. 1987) (“Defendants have no constitutional right 13 to plea bargain.”). 14 Movant’s fourth objection is to the nature of the plea agreements that were 15 extended by the Government to each co-defendant. However, package deal plea 16 agreements such as this, where the Government bargains with co-defendants as a group, 17 are not deemed to be so coercive as to constitute a violation of a defendant’s 18 constitutional rights. Id. In discussing “the constitutional implications of a prosecutor's 19 offer during plea bargaining of adverse or lenient treatment for some person other than 20 the accused,” such as package plea agreements, the Ninth Circuit has cautioned only that 21 “the trial court should make a more careful examination of” the circumstances 22 surrounding the bargaining process. United States v. Castello, 724 F.2d 813, 815 (9th 23 Cir. 1984). However, it remains the prerogative of the prosecutor whether to offer a 24 “package deal,” or no deal at all. Nothing in Movant’s objection suggests counsel was 25 ineffective in his transaction with the Government with respect to Movant’s plea. 26 27 28 record under Rule 72(b). However, to the extent that this objection also reiterates Carreno-Gutierrez’s claim that the Court’s plea colloquy did not sufficiently reflect his personal desire to reject the plea, the same analysis that addresses his first and second objections applies with equal measure to this point. -4- 1 IT IS ORDERED that Magistrate Judge Michelle H. Burns’s R&R (Doc. 14) is 2 ACCEPTED and Petitioner Juan Carreno-Gutierrez’s Second Amended Motion to 3 Vacate Sentence (Doc. 8) is DENIED with prejudice. 4 5 IT IS FURTHER ORDERED that the Motion to Vacate under 28 U.S.C. § 2255 (Doc. 332) in Case No. CR-09-1114-PHX-GMS is denied. 6 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 7 Section 2255 Cases, in the event Movant files an appeal, the Court declines to issue a 8 certificate of appealability because reasonable jurists would not find the Court’s 9 procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 10 11 12 IT IS FURTHER ORDERED directing the Clerk of Court TERMINATE this action. Dated this 26th day of May, 2015. 13 14 15 Honorable G. Murray Snow United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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