Zazueta-Acosta v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. The Petition is denied. A certificate of appealability is also denied. Signed by Judge Larry Alan Burns on 4/2/2018.(All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,

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v.

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DULCE LLASMIN ZAZUETAACOSTA,

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Case No.: 15CR926-LAB-1 and
16CV2533-LAB
ORDER DENYING PETITION
UNDER 28 U.S.C. 2255

Defendant.

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Pursuant to a plea agreement, Petitioner Dulce Llasmin Zazueta-Acosta pled

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guilty to one count of conspiracy to distribute methamphetamine, and was

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sentenced to 120 months’ imprisonment followed by 10 years’ supervised release.

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In her plea agreement, she waived appeal and collateral attack, other than claims

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based on ineffective assistance of counsel. (Docket no. 29 (Plea Agreement) at

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12:3–20.)

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She then filed a motion under 28 U.S.C. ' 2255. Apparently, realizing she

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had waived all other claims, she has labeled all her claims as based on ineffective

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assistance of counsel. The things she contends her counsel should have done,

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however, are either things her counsel had no power to do, or things her counsel

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did do.
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15CR926-LAB-1 and 16CV2533-LAB

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Petitioner first claims the government promised her that she would receive a

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safety valve adjustment pursuant to U.S.S.G. 2D1.1(b)(16). (Docket no. 42 at 4.)

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Although she labels this an ineffective assistance of counsel claim, the only thing

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she says her counsel did wrong was to fail to ensure that the Court gave her the

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benefit of safety valve. (Id.) She does not claim she was misled into pleading

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guilty or agreeing to the plea agreement, or that she did not understand it. She is

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not seeking to set aside the plea agreement or withdraw her plea. Instead, she

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asks the Court to resentence her, giving her the benefit of the promises she claims

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the government made to her. (Id.)
The record shows Petitioner’s representations are incorrect.

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Even

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assuming, arguendo, she was told or believed she was told she would definitely

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receive the benefit of safety valve, she was disabused of that misapprehension

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when she was presented with the plea agreement, which she understood and

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signed. The record shows that, as of the time she agreed to plead guilty, she knew

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she was not being promised safety valve during sentencing. See Plea Agreement

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at 8:6–21 (confirming that sentence was within the judge’s sole discretion, that the

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plea agreement was not binding on the Court, and that no promises as to the

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sentence were being made); 8:22–9:19 (setting conditions for the government’s

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recommendation of safety valve, and explaining that Petitioner might not qualify

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for it); 15:1–6 (representing that Petitioner read the agreement, discussed it with

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counsel, and fully understands it). See also Docket no. 27, & 18 (Magistrate

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Judge’s findings that Petitioner’s guilty plea was made knowingly and voluntarily,

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and did not result from any promises other than those made in the plea

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agreement).

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Petitioner knew the government might not recommend safety valve. And in

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any event she knew her counsel had no power to ensure that the Court gave it.

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And in this case, it was not warranted; she did not qualify for it because of her role

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15CR926-LAB-1 and 16CV2533-LAB

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in the offense. (See Docket no. 34 (Defendant’s Sentencing Memorandum) at

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2:11–12.)

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She also says that both her counsel and the government assured her that

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she would be sentenced under the new drug guidelines. She believes this did not

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happen, and that she is entitled to a two-level reduction under Amendment 782,

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which became effective November 1, 2014. The fact is, both counsel did calculate

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her guidelines using the manual she says they promised to use. (See Docket nos.

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35, 37.) Petitioner imported 4,962 grams of actual meth. (See Docket no. 29 at

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4:16–20 (Plea Agreement admitting Petitioner imported over 4.5 kilograms of

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actual methamphetamine and her base level offense was 38) and 37

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(Government’s sentencing summary chart giving the amount as 4,962 grams of

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actual methamphetamine). So, under the guidelines as amended by Amendment

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782, her base level offense was 38. That is what both sides told the Court it was.

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(See Docket nos. 35, 37.) In other words, counsel for both sides did exactly what

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Petitioner claims they said they would.

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Finally, Petitioner claims her own counsel was ineffective for failing to make

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sure she would be able to participate in the “FBOP Drug Program or alternative.”

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(Docket nos. 42 at 6.) She admits the Court made that recommendation. (Id.; see

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also Docket no. 41 at 2 (Court’s recommendation to Bureau of Prisons that

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Petitioner be evaluated to participate in Residential Drug Assessment Program).)

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Petitioner’s counsel has no power to have the Bureau of Prisons admit her to this

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program; not even the Court has that power.

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ineffective for failing to do the impossible.

Petitioner’s counsel was not

The record shows that Petitioner’s counsel was not ineffective, and Petitioner

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is entitled to no relief. The Petition is DENIED.

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15CR926-LAB-1 and 16CV2533-LAB

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Because she has not made a substantial showing of violation of her

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constitutional rights, a certificate of appealability is also DENIED. See 28 U.S.C.

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§ 2253(c)(2).

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IT IS SO ORDERED.
Dated: April 2, 2018

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Hon. Larry Alan Burns
United States District Judge

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15CR926-LAB-1 and 16CV2533-LAB