Valencia v. USA

Filing 2

Order denying 1 Defendant's 28 U.S.C. section 2255 Motion to Vacate, Set Aside, or Correct Sentence. Signed by Judge Edward J. Davila on 4/9/2020. (ejdlc3S, COURT STAFF) (Filed on 4/9/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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UNITED STATES OF AMERICA,

Case No. 5:15-cr-00481-EJD

Plaintiff,
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v.
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BALDEMAR VALENCIA,

United States District Court
Northern District of California

Defendant.

ORDER DENYING DEFENDANT’S 28
U.S.C. § 2255 MOTION TO VACATE,
SET ASIDE, OR CORRECT
SENTENCE
Re: Dkt. No. 211

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Before the Court is Defendant Valencia’s motion to set aside, vacate, or correct his

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sentence pursuant to 28 U.S.C. § 2255. (“Mot.”), Dkt. 211. Defendant argues for a reduction to

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his sentence because he allegedly received ineffective assistance of counsel. Specifically,

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Defendant argues that his counsel failed to request (1) a 2-level reduction under the U.S.

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Sentencing Guidelines’ “safety valve” provisions and (2) a 2-level reduction for being a “minor

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participant.” On May 8, 2018, the Government filed a response to Defendant’s motion. United

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States’ Response to Def.’s Motion (“Response”), Dkt. 272. Because Defendant chose not to

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pursue a “safety valve” credit and was not prejudiced by a failure to argue for a “minor

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participant” reduction, Defendant’s motion is DENIED.

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I.

BACKGROUND
A. Factual Background
Defendant was indicted on October 8, 2015 and charged with conspiracy to possess with

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intent to distribute 500 grams or more of methamphetamine and possession with intent to

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distribute 500 grams or more of methamphetamine. Indictment, Dkt. 9, 1:1–11, 3:15–4:2. These

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Case No.: 5:15-cr-00481-EJD
ORDER DENYING DEFENDANT’S 28 U.S.C. § 2255 MOTION TO VACATE, REMAND, OR
CORRECT SENTENCE
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charges were supported by the facts subsequently set forth in the Presentence Investigation Report.

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Presentence Investigation Report (“PSR”), Dkt. 143. Defendant provided methamphetamine to a

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drug trafficking organization (“DTO”). PSR ¶ 17, 22, 63. Defendant communicated with the

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DTO regarding delivery times and pricing. PSR ¶ 21. On August 4, 2015, Defendant was arrested

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after a traffic stop during which officers discovered a non-factory compartment built into

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Defendant’s vehicle containing $28,970 in U.S. currency and methamphetamine weighing

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approximately 13.6 pounds. PSR ¶ 50–51. On the same date, agents searched Defendant’s

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residence and found additional drug paraphernalia and $60,500 in U.S. currency. PSR ¶ 52–

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53, 94.
B. Procedural History

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Defendant pled guilty on July 6, 2016. Dkt. 106. Defendant did not dispute the

United States District Court
Northern District of California

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information set forth in the PSR, nor the sentencing guidelines calculation contained therein.

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Defendant’s Sentencing Memorandum, Dkt. 145, 1:24–2:2. A sentencing hearing was conducted

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where Defendant and his counsel were present. Transcript of Sentencing Proceedings

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(“Transcript”), Dkt. 272-1, 2:6–16. Defendant was sentenced to 144 months of imprisonment.

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Sentencing, Dkt. 148.

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II.

LEGAL STANDARD
Ineffective assistance of counsel is found when such representation (1) falls below an

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objective standard of reasonableness and (2) prejudices the defendant. Strickland v. Washington,

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466 U.S. 668, 688, 693 (1984). Addressing both components is unnecessary if one is

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insufficiently demonstrated. Id. at 697. The objective standard “remains simply reasonableness

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under prevailing professional norms.” Id. at 688. This depends on whether assistance of counsel

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“was within the range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart,

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474 U.S. 52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). “A strong

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presumption that counsel’s conduct falls within the wide range of reasonable professional

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assistance” exists such that a court’s “scrutiny of counsel’s performance must be highly

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Case No.: 5:15-cr-00481-EJD
ORDER DENYING DEFENDANT’S 28 U.S.C. § 2255 MOTION TO VACATE, REMAND, OR
CORRECT SENTENCE
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deferential.” Strickland, 466 U.S. at 689. The second standard requires the defendant to “show

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

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proceeding would have been different. A reasonable probability is a probability sufficient to

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undermine confidence in the outcome.” Id. at 694. In a case involving a guilty plea, “the

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defendant must show that there is a reasonable probability that, but for counsel’s errors, he would

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not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59.

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III.

DISCUSSION
A. Safety Valve Credit

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Defendant chose not to pursue a “safety valve” credit. Transcript 9:15–25. It was clear
that Defendant could take advantage of the safety valve credit. See Transcript 9:12–14. However,

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United States District Court
Northern District of California

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Defendant’s attorney represented to the Court that “given the reality of threats . . . [Defendant]’s

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afraid that if he were even debriefed, he would place his family in danger.” This representation

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was made in open court in the presence of Defendant with a court certified translator.

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Transcript 2:14–15. The Defendant elected not to pursue a “safety valve” credit with the

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knowledge that it was an available option. This did not constitute ineffective assistance of

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counsel.

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B. Minor Participant Adjustment
Federal sentencing guidelines allow the possibility for a 2-level reduction in the sentence

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for someone who was a minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). “The

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determination whether to apply . . . subsection (b) . . . is based on the totality of the circumstances

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and involves a determination that is heavily dependent upon the facts of the particular case.”

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U.S.S.G. § 3B1.2, comment. (n.3(C)). “[A] defendant who is convicted of a drug trafficking

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offense, whose participation in that offense was limited to transporting or storing drugs and who is

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accountable under § 1B1.3 only for the quantity of drugs the defendant personally transported or

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stored may receive an adjustment under this guideline.” U.S.S.G. § 3B1.2, comment. (n.3(A)).

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Defendant was indicted for one count of 21 U.S.C. § 846 – Conspiracy to Possess with
Case No.: 5:15-cr-00481-EJD
ORDER DENYING DEFENDANT’S 28 U.S.C. § 2255 MOTION TO VACATE, REMAND, OR
CORRECT SENTENCE
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Intent to Distribute and to Distribute Methamphetamine and two counts of 21 U.S.C. § 841(a)(1) –

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Possession with Intent to Distribute. Indictment, Dkt. 9, 1:1–11, 3:15–4:2. These charges were

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supported by evidence that Defendant communicated with the DTO about delivery times and

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pricing and provided the DTO with methamphetamine. PSR ¶ 17, 21, 22, 63. As such,

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Defendant’s participation was not limited to only transporting or storing drugs. Therefore,

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Defendant did not qualify for a minor participant reduction. It follows that Defendant’s counsel

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did not render ineffective assistance by not pursuing a minor participant adjustment.

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IV.

CONCLUSION
Defendant has not met his burden under Strickland or Hill. He has thus failed to state a

claim for ineffective assistance of counsel. Accordingly, Defendant’s Motion to set aside, vacate,

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United States District Court
Northern District of California

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or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED.

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IT IS SO ORDERED.
Dated: April 9, 2020
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:15-cr-00481-EJD
ORDER DENYING DEFENDANT’S 28 U.S.C. § 2255 MOTION TO VACATE, REMAND, OR
CORRECT SENTENCE
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