Vega v. United States of America
Filing
19
OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:11-cr-59-FTM-29SPC), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 10/21/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JUAN CARLOS VEGA,
Petitioner,
v.
Case No:
Case No:
2:13-Cv-388-FTM-29SPC
2:11-Cr-59-FTM-29SPC
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner’s pro se Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence
by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #70) 1 filed on
May 23, 2013.
The government filed a Response in Opposition to
Motion (Cv. Doc. #7) on July 16, 2013.
The petitioner filed a Reply
(Cv. Doc. #8) on August 23, 2013.
I.
On June 22, 2011, a federal grand jury in Fort Myers, Florida
returned a seven-count Indictment charging petitioner Juan Carlos
Vega (petitioner or Vega) with six counts of distribution of cocaine
and one count of possession with intent to distribute cocaine, all
in violation of 21 U.S.C. Sections 841(a)(1) and 841(b)(1)(C). (Cr.
Doc. #1.)
1The
On October 14, 2011, the United States filed a Notice of
Court will make references to the dockets in the instant action
and in the related criminal case throughout this opinion. The Court
will refer to the docket of the civil habeas case as “Cv. Doc.”, and
will refer to the docket of the underlying criminal case as “Cr. Doc.”
Maximum Penalty, Elements of Offense, and Factual Basis (Cr. Doc.
#31), and on October 21, 2011, petitioner entered pleas of guilty
to all counts without the benefit of a plea agreement.
#34.)
(Cr. Doc.
The Court accepted the guilty pleas and set the date for
sentencing.
(Cr. Doc. ##35, 36.)
The Presentence Report found that petitioner was accountable
for the distribution of at least 340.4 grams of cocaine, which
resulted in a base offense level of 22 under the Sentencing
Guidelines.
(PSR ¶ 22.)
The Presentence Report added two levels
for possession of a dangerous weapon and an additional two levels
because
petitioner
maintained
a
premise
for
the
purpose
manufacturing or distributing a controlled substance.
27-28.)
of
(PSR ¶¶
After receiving a three-level downward adjustment for
acceptance of responsibility, petitioner’s total offense level was
23.
(PSR ¶¶ 33-34.)
Petitioner’s criminal history was Category II,
which resulted in a Sentencing Guidelines range of 51 to 63 months
imprisonment.
Prior
to
sentencing,
petitioner
through
counsel
filed
a
Sentencing Memorandum and Motion for Below Guideline Sentence. (Cr.
Doc. #39.)
In the motion, petitioner argued what he believed were
mitigating factors, including that he was a family man with a small
criminal history.
Id.
Further, petitioner argued that his arrest
was the result of the “classic sentence ratcheting scheme of law
enforcement.” Id.
Petitioner argued that if the Task Force Agents
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had arrested him at the first sale of cocaine, rather than conducting
more buys over an eight month period, the sentencing guidelines range
would have been lower, even assuming the enhancements and criminal
history category were left intact. Id.
Petitioner suggested that
a sentence within a guideline range of 21 to 27 months would be
sufficient
to
comply
with
Title
18
U.S.C
Section
3553.
Id.
Petitioner’s counsel did not address the appropriateness of the
sentencing
enhancements
for
possession
of
the
firearm
and
maintaining a drug premise, but simply argued that the Sentencing
Guidelines range should be reduced even “[a]ssuming the enhancements
and criminal history are left intact.” Id. at 4.
At the January 24, 2012 sentencing hearing, defense counsel had
no factual objections to the Presentence Report (Cr. Doc. #63, p.
4.), but objected to the two-level firearm enhancement and to
petitioner’s criminal history. Id. at 3-10. Counsel did not object
to the enhancement for maintaining a drug premises.
The Court
sentenced petitioner to a term of 51 months imprisonment as to each
of the seven counts, to be served concurrently (Cr. Doc. #42) and
denied petitioner’s motion for a below guidelines sentence. (Cr. Doc.
#41.)
Petitioner filed a timely Notice of Appeal. (Cr. Doc. #43.) On
December 11, 2012, the United States Court of Appeals for the Eleventh
Circuit affirmed petitioner’s conviction and sentence and remanded
to correct a clerical error.
United States v. Vega, 500 F. App'x
- 3 -
889, 892 (11th Cir. 2012).
No petition for certiorari was filed with
the Supreme Court, and the § 2255 motion is timely.
II.
Petitioner raises a single issue in his Section 2255 motion:
Whether his attorney provided ineffective assistance of counsel by
failing to object to the maintaining a drug premise enhancement under
U.S.S.G. § 2D1.1(b)(12).
For the reasons set forth below, the Court
finds petitioner’s attorney did not provide ineffective assistance
to petitioner despite his failure to raise this objection at
sentencing.
A. Evidentiary Hearing
A district court shall hold an evidentiary hearing on a habeas
petition “unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief. . .
.” 28 U.S.C. § 2255(b).
“[I]f the petitioner alleges facts that,
if true, would entitle him to relief, then the district court should
order an evidentiary hearing and rule on the merits of his claim.”
Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (internal
quotation marks and citation omitted).
However, a “district court
is not required to hold an evidentiary hearing where the petitioner’s
allegations are affirmatively contradicted by the record, or the
claims are patently frivolous . . . .” Id. at 715; see also Gordon
v.
United
States,
518
F.3d
1291,
1301
Winthrop-Redin v. United States, No. 13-10107,
- 4 -
(11th
F.3d
Cir.
2008);
, 2014 WL
4699391 (11th Cir. Sept. 23, 2014).
Here, even when the facts are
viewed in the light most favorable to petitioner, the record
establishes that the maintaining a drug premise enhancement was
appropriate and petitioner received effective assistance of counsel.
Therefore, the Court finds that an evidentiary hearing is not
warranted.
B. Ineffective Assistance of Counsel Principles
The legal standard for ineffective assistance of counsel claims
in a habeas proceeding is well established.
To prevail on a claim
of ineffective assistance of counsel, a habeas petitioner must
demonstrate both that (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness, and
(2) prejudice resulted because there is a reasonable probability
that, but for the deficient performance, the result of the proceeding
would have been different.
Hinton v. Alabama, 134 S. Ct. 1081,
1087-88 (2014) (citing Padilla v. Kentucky, 559 U.S. 356, 366 (2010);
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
The
proper
measure
of
attorney
performance
is
simply
reasonableness under prevailing professional norms considering all
the
circumstances.
Id.
at
1088.
A
court
must
“judge
the
reasonableness of counsel’s conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.”
Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S.
at 690).
This judicial scrutiny is highly deferential, and the Court
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adheres to a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.
466 U.S. at 689-90.
Strickland,
To be objectively unreasonable, the performance
must be such that no competent counsel would have taken the action.
Rose v. McNeal, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas,
611 F.3d 1259, 1290 (11th Cir. 2010).
Additionally, an attorney is
not ineffective for failing to raise or preserve a meritless issue.
United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992); Ladd
v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).
To establish prejudice under Strickland, petitioner must show
more than that the error had “some conceivable effect on the outcome
of the proceeding.”
Marquard v. Sec'y for the Dep’t of Corr., 429
F.3d 1278, 1305 (11th Cir. 2005) (quotation marks omitted).
Rather,
the petitioner must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.
Hinton, 134 S. Ct. at 1089.
“A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Id. (quoting Strickland, 466 U.S. at
694) (internal quotation marks and citations omitted).
C.
Application of Principles
Petitioner alleges that the Court should not have applied the
two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for having
maintained
a
premises
for
the
purpose
of
manufacturing
or
distributing a controlled substance, and therefore his attorney
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provided ineffective assistance by failing to object to the Court’s
application of U.S.S.G. § 2D1.1(b)(12) to his case.
(Cv. Doc. #1.)
Petitioner argues that his attorney’s performance was deficient
because he failed to object to and argue against the Court’s use of
this enhancement, and that he was prejudiced by this omission because
the Court of Appeals was forced to review the issue under a plain
error standard.
Petitioner argues that he would have prevailed on
the issue on appeal under the usual standard a preserved issue – clear
error review for findings of fact and de novo review for application
of the Sentencing Guidelines to the facts.
United States v. Vega,
500 F. App'x 889, 892 (11th Cir. 2012).
On appeal, the Eleventh Circuit Court found that because there
had been no objection in the district court, its review of the
propriety of the drug premises enhancement was under the plain error
standard.
Id. at 891.
error
applying
in
The Eleventh Circuit found there was no plain
the
drug
premises
enhancement
because
the
petitioner “sold cocaine out of his home on multiple occasions.”
Id.
Alternatively, the Eleventh Circuit found no plain error because no
binding
precedent
established
enhancement was erroneous.
that
the
application
of
the
Id.
The Court finds that the claim petitioner asserts his attorney
should have raised at sentencing is without merit, even without
resort to the plain error standard.
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Therefore, the failure to raise
the objection was neither deficient performance nor prejudicial to
petitioner.
Under U.S.S.G. § 2D1.1(b)(12), the base offense level is
increased by two levels “[i]f the defendant maintained a premises
for the purpose of manufacturing or distributing a controlled
substance”.
U.S.S.G. § 2D1.1(b)(12). “Subsection (b)(12) applies
to a defendant who knowingly maintains a premises (i.e., a building,
room, or enclosure) for the purpose of manufacturing or distributing
a controlled substance, including storage of a controlled substance
for the purpose of distribution.” U.S.S.G. § 2D1.1(b)(12) cmt. 17.
The Court looks to “(A) whether the defendant held a possessory
interest in (e.g., owned or rented) the premises and (B) the extent
to which the defendant controlled access to, or activities at, the
premises.” U.S.S.G. § 2D1.1(b)(12) cmt. 17.
Finally, the Comment
states that:
Manufacturing or distributing a controlled
substance need not be the sole purpose for which
the premise was maintained, but must be one of
the defendant's primary or principal uses for
the premises, rather than one of the defendant's
incidental or collateral uses for the premises.
In making this determination, the court should
consider how frequently the premises was used
by
the
defendant
for
manufacturing
or
distributing a controlled substance and how
frequently the premises was used by the
defendant for lawful purposes.
U.S.S.G. § 2D1.1(b)(12) cmt. 17.
The Eleventh Circuit has recently
discussed the parameters of this enhancement:
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Few circuits have addressed this guideline, and we have
done so only in a single unpublished opinion. United
States v. Vega, 500 F. App'x 889, 891 (11th Cir. 2012)
(unpublished) (concluding that the district court did not
plainly err in applying the enhancement where the
defendant sold cocaine from his home on multiple
occasions). We thus turn to the reasoning of our sister
circuits.
The Eighth Circuit considered the application of §
2D1.1(b)(12) to a premises that served both as the
defendants' home and a stash house. United States v.
Miller, 698 F.3d 699, 706–07 (8th Cir. 2012). There, the
court looked at numerous factors, such as quantities of
drugs involved, storage of “tools of the trade,”
maintenance
of
business
records,
and
customer
interactions, to determine whether the principal use of
the residence was drug distribution. The court had little
difficulty applying the enhancement to Mr. Miller, the
primary drug trafficker involved. But as to his wife, the
court found the enhancement applicable as well, despite
her more limited role in the distribution, because she was
specifically involved in at least three transactions at
the home, she used her son to deliver drugs to one of the
buyers, and she collected payment for drugs on several
occasions. Moreover, the court determined that under 21
U.S.C. § 856 and § 2D1.1(b)(12), Congress intended to deter
the use of primary residences as stash houses. In light
of all of these factors, the court found that the
enhancement would apply to a defendant who used her primary
residence to distribute drugs. Id. at 705–07.
Relying on Miller, the Seventh Circuit considered and
applied the enhancement to a defendant who sold drugs out
of his home. See United States v. Flores–Olague, 717 F.3d
526, 531–32 (7th Cir.), cert. denied, ––– U.S. ––––, 134
S. Ct. 211, 187 L. Ed. 2d 142 (2013). The court explained
that a defendant “maintained” a premises for drug
distribution if “he owns or rents premises, or exercises
control over them, and for a sustained period of time, uses
those premises to manufacture, store, or sell drugs, or
directs others to those premises to obtain drugs.” Id. at
532 (citing United States v. Acosta, 534 F.3d 574, 591 (7th
Cir. 2008)). The court also considered the number of drug
transactions that occurred on the premises. Because the
defendant in Flores–Olague had stored cocaine on the
premises for several years, sold it to at least ten regular
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customers, and had firearms in the home, the court
concluded that the enhancement applied.
The Sixth Circuit upheld the application of § 2D1.1(b)(12)
where the defendant had both a possessory interest in the
residence and controlled the access to the home. See
United States v. Johnson, 737 F.3d 444, 447 (6th Cir.
2013). In reaching this conclusion, the Sixth Circuit
explained that “[T]he more characteristics of a business
that are present” in the home—such as “tools of the trade
(e.g., laboratory equipment, scales, guns and ammunition
to protect the inventory and profits),” “profits,”
including large quantities of cash, and “multiple
employees or customers”—“the more likely it is that the
property is being used ‘for the purpose of’ [prohibited]
drug activities.” Id. at 447–48 (quoting United States v.
Verners, 53 F.3d 291, 295–97 (10th Cir. 1995) (discussing
21 U.S.C. § 856)).
Relying on this persuasive authority, we conclude that the
district court properly applied § 2D1.1(b)(12) to Cintora–
Gonzalez's guidelines calculations. The evidence at trial
showed that Cintora–Gonzalez used his apartment for the
purpose of manufacturing or distributing drugs. Cintora–
Gonzalez concedes his proprietary interest in the
premises. And the evidence showed Cintora–Gonzalez
controlled access to and activities at the apartment.
United States v. Cintora-Gonzalez, 569 F. App’x 849, 854-55 (11th
Cir. 2014)(footnote omitted).
Petitioner had multiple incidents occurring inside his home and
on his premises. On three occasions, November 4 2010, November 11
2010, and December 9 2010, petitioner invited the confidential
informant or undercover officer (UC) into his home for the exchange
and conducted the sale of cocaine inside his home. (PSR ¶¶ 7-11.)
On an additional three occasions, February 10 2011, March 17 2011,
and May 26, 2011, the UC would drive to the petitioner’s house, park
in the petitioner’s driveway, and the petitioner would come out of
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the house to the vehicle to conduct the sale. (PSR ¶¶ 12-16.)
Petitioner owned the premises with his wife, and resided there with
her and their son. (PSR ¶¶ 58, 59.)
Being his residence, petitioner
had complete controlled access to the entire premises and all
activities that occurred on the property. Id.
Upon the search of
the premises, DEA agents found a clear bag containing 41.6 grams of
cocaine in a bedroom. (PSR ¶ 18.)
In that same room, a metal safe
with the petitioner’s name on it was found. Id.
The safe contained
ledgers, plastic bags, a scale, a strainer, and a firearm. Id.
In
light of the multiple cocaine sales occurring on the petitioner’s
premises, as well as the evidence found during the DEA’s search of
the premises, petitioner’s use of the premises for distribution of
cocaine was not an incidental or collateral use of the property; it
was a primary use.
Under the undisputed facts, counsel made a reasonable choice
not to challenge this enhancement.
Even if it had been made, the
challenge would have been overruled given the facts of the particular
case.
In applying the factors that are considered in a U.S.S.G. §
2D1.1(b)(12) enhancement, the facts clearly indicate that the
petitioner’s premises was used to distribute drugs and therefore it
was reasonable for petitioner’s counsel to decide not to object to
the U.S.S.G. § 2D1.1(b)(12) enhancement. For these reasons, the Court
finds that petitioners claim of ineffective assistance of counsel
is without merit.
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Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Petitioner’s Motion Under 28 U.S.C. Section 2255 to Vacate,
Set Aside or Correct Sentence by a Person in Federal Custody (Cv.
Doc. #1; Cr. Doc. #70) is DENIED.
2.
The Clerk of the Court shall enter judgment accordingly and
close the civil file.
The Clerk is further directed to place a copy
of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition.
28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such a
showing, petitioner “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004),
or that “the issues presented were adequate to deserve encouragement
to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003)(internal quotation marks and citations omitted).
Petitioner
has not made the requisite showing in these circumstances.
- 12 -
Finally, because petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
October, 2014.
Copies:
Petitioner
Counsel of record
- 13 -
21st
day of
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