Sanchez-Cortez v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. Signed by Judge Larry Alan Burns on 10/6/15.(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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CASE NO. 14cr44-LAB-1 and 15cv951LAB
Plaintiff,

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vs.

ORDER ON MOTION TO VACATE,
SET ASIDE, OR CORRECT
SENTENCE

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ARISTEO ORTIZ-SANCHEZ,

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Defendants.

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Aristeo Ortiz-Sanchez entered a plea agreement and pled guilty to illegal reentry after

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deportation. (Docket no. 15.) In the plea agreement:

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C

He agreed that he had previously "suffered a felony conviction for Assault with

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Firearm on a Person, in violation of California Penal Code, Section 245(a)(2)." (Id. at

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3, 9.)

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C

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adjustment based on Ortiz's prior conviction. (Id. at 7.)
C

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The parties agreed that each side was free to argue for a Sentencing Guideline

The Government agreed to seek a sentence reduction under its Fast Track program.
(Id. at 2, 7).

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Ortiz acknowledged that the Government's recommendation would not be binding on

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the Court, and that the Court didn't have to follow the parties' sentencing

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recommendations. (Id. at 6–7.)

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At the plea hearing, Ortiz again acknowledged that the Court didn't have to follow sentencing

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recommendations and confirmed that, other than what the Government promised in the

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written plea agreement, no one had promised him anything to get him to plead guilty.

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(Docket no. 38 at 7, 10.)

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At the sentencing, the Court applied a 16 level Sentencing Guideline enhancement

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based on Ortiz's felony assault conviction. (Docket no. 31 a 17.) The Court also declined

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to reduce Ortiz's sentence based on Fast Track. (Id. at 19.)

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Ortiz has filed a 28 U.S.C. § 2255 motion to vacate/correct his sentence, arguing: (1)

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his counsel misled him to believe he'd receive a sentence reduction under the Fast Track

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program and, therefore, he received ineffective assistance of counsel; (2) the Court

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erroneously applied a 16 level sentence enhancement without a sufficient factual basis; and

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(3) the Court erroneously concluded that his state conviction was for a crime of violence.

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(Docket no. 35 at 6.)

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Ineffective Assistance of Counsel

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A petitioner claiming ineffective assistance of counsel must show both (1) deficient

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performance under an objective standard of reasonableness, and (2) prejudice. Strickland

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v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, "[t]he

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challenger's burden is to show that counsel made errors so serious that counsel was not

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functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington

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v. Richter, 562 U.S. 86, 104 (2011) (internal quotation marks omitted). Reviewing courts

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must apply a "strong presumption" that "counsel's conduct falls within the wide range of

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reasonable professional assistance." Strickland, 466 U.S. at 689. To demonstrate prejudice,

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the petitioner must show that "but for counsel's unprofessional errors," there is a reasonable

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probability "the result of the proceeding would have been different." Id. at 694.

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When a defendant challenges counsel's effectiveness during a guilty plea, the relevant

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inquiry is "whether the plea represents a voluntary and intelligent choice among the

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alternative courses of action open to the defendant." Hill v. Lockhart, 474 U.S. 52, 56 (1985).

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A petitioner's conclusory allegations that his counsel misled him are insufficient to warrant

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habeas relief. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).

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The premise of Ortiz's ineffective assistance claim is that his counsel misled him into

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believing that he would get the Fast Track sentence reduction if he signed the plea

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agreement. (Docket no. 35 at 6.) But, this argument is belied by the plea agreement and

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by Ortiz's testimony during the Rule 11 hearing. See United States v. Adamic, 2006 WL

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2507439, at *3 (E.D. Cal. Aug. 28, 2006) ("[I]n the absence of extraordinary circumstances,

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the truth of sworn statements made during a [plea hearing] is conclusively established, and

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a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that

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necessarily relies on allegations that contradict the sworn statements."). At that hearing,

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Ortiz confirmed he understood that the Court need not accept the Government's sentencing

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recommendations, and that he hadn't been promised anything outside of the plea agreement.

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His conclusory allegations made months after the fact don't establish deficient performance,

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and, even if they did, any prejudice was alleviated by the admonitions Ortiz received in the

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plea agreement and at the plea hearing.

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Factual Basis for 16 Point Sentence Enhancement

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Ortiz argues that there was no factual basis for the 16 level sentence enhancement.

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(Docket no. 35.) But there was. First, he admitted in the plea agreement that he had a prior

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felony conviction under Cal. Penal Code § 245(a)(2). (Docket no. 15 at 3.) Second, the

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Ninth Circuit has ruled that that particular offense is categorically a "crime of violence,"

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warranting a 16 level enhancement. See U.S.S.G. § 2L1.2(b)(1)(A)(ii); United States v.

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Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009); United States v. Heron-Salinas, 566 F.3d 898,

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899 (9th Cir. 2009); United States v. Jennen, 596 F.3d 594, 601 (9th Cir. 2010). Contrary

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to Ortiz's argument, there was a factual basis for the enhancement.

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Conclusion

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Ortiz's motion to vacate/correct his sentence (Docket no. 35) is DENIED.

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IT IS SO ORDERED.

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DATED: October 6, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge

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