Bernal v. United States of America
Filing
11
OPINION AND ORDER dismissing in part and otherwise 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-119-FTM-29DNF), 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 4/12/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FELIX ALBERTO BERNAL,
Petitioner,
v.
Case No: 2:14-cv-483-FtM-29MRM
Case No. 2:11-CR-119-FTM-29DNF
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on 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.
#124) 1 filed on August 21, 2014.
The government filed a Response
in Opposition to Motion (Cv. Doc. #8) on December 9, 2014.
For
the reasons set forth below, the motion is denied.
I.
On November 23, 2011, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #1) charging
petitioner and others in Count One with conspiracy to possess with
intent to distribute, and to distribute, 50 or more grams of
methamphetamine
1The
and
500
or
more
grams
of
a
mixture
with
a
Court will make references 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.”
detectable
amount
of
methamphetamine;
and
in
Count
2
with
possession with intent to distribute, and distribution or aiding
and abetting distribution of 5 or more grams of methamphetamine.
On June 7, 2012, petitioner appeared before the Magistrate Judge
for a change of plea hearing and entered a plea of guilty as to
both counts without the benefit of a plea agreement.
#79.)
(Cr. Doc.
On June 11, 2012, the plea was accepted and petitioner was
adjudicated guilty of both counts of the Indictment.
(Cr. Doc.
#82.)
The Presentence Report set petitioner’s Base Offense Level at
level 34 based on an amount of methamphetamine involving at least
150 grams but less than 500 grams.
Petitioner received acceptance
of responsibility, reducing his Total Offense Level to 31, and a
guideline range of 120 to 135 months based on his Criminal History
Category of I.
(Cr. Doc. #133.)
On October 1, 2012, the Court
sentenced petitioner to a term of imprisonment of 135 months as to
each count, to be served concurrently with each other, followed by
a term of supervised release.
Judgment
(Cr.
Doc.
(Cr. Doc. #103.)
#104)
was
filed
on
October
3,
2012.
Petitioner filed a Notice of Appeal (Cr. Doc. #105), and raised
two issues on appeal: (1) that the sentence was unreasonable
because the district court failed to consider any 18 U.S.C. §
3553(a) factors, and (2) that petitioner’s lack of candor was
improperly considered in denying a safety-valve reduction.
- 2 -
(Cr.
Doc. #121, p. 2.)
On May 10, 2013, the Eleventh Circuit affirmed
the convictions and sentences.
United States v. Bernal, 518 F.
App'x 800 (11th Cir. 2013).
On August 31, 2015, pursuant to a retroactive application of
Amendment 782 of the U.S. Sentencing Guidelines, petitioner’s
sentence was reduced to the minimum mandatory 120 months, or time
served, whichever was greater effective November 2, 2015.
Doc. #143.)
(Cr.
Petitioner sought reconsideration, which was denied
in light of the statutory minimum mandatory sentence of 120 months.
(Cr. Doc. #147.)
Petitioner’s motion under § 2255 was signed and executed on
August 9, 2014.
Giving him the benefit of the mailbox rule 1, the
motion was timely filed within one year of his conviction becoming
final.
28 U.S.C. § 2255(f); Kaufmann v. United States, 282 F.3d
1336, 1338 (11th Cir. 2002) (a petitioner “gets the benefit of up
to 90 days between the entry of judgment on direct appeal and the
expiration of the certiorari period.”).
II.
Petitioner asserts several grounds under the umbrella of two
grounds for relief.
In Ground One, petitioner asserts ineffective
assistance of counsel for the following reasons: (1) counsel’s
“[A] prisoner's pro se § 2255 motion is deemed filed the date it
is delivered to prison authorities for mailing.” Washington v.
United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (citation
omitted).
1
- 3 -
failure to argue a lack of evidence, and failure to investigate
the charges; (2) counsel’s failure to explain the plea agreement
and
charges,
counsel’s
making
failure
the
to
plea
explain
not
knowing
petitioner’s
or
voluntary;
exposure
under
(3)
the
guidelines when entering pleas of guilty and making unfulfilled
promises for a reduction.
Petitioner also argues that counsel
failed to object to the “false evidence and hearsay presented by
the prosecutor” at sentencing with regard to the safety valve.
Ground
Two,
petitioner
unconstitutional
consider
factors
and
argues
unreasonable;
§
under
3553(a);
that
that
and
his
the
sentence
Court
that
failed
there
was
In
was
to
an
insufficient factual inquiry as to the amount of drugs.
A. Evidentiary Hearing Standard
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) (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.
- 4 -
United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (a hearing is
not
necessarily
required
counsel is asserted).
whenever
ineffective
assistance
of
To establish entitlement to an evidentiary
hearing, petitioner must “allege facts that would prove both that
his counsel performed deficiently and that he was prejudiced by
his counsel’s deficient performance.”
Hernandez v. United States,
778 F.3d 1230, 1232-33 (11th Cir. 2015).
Viewing the facts alleged
in the light most favorable to petitioner, the Court finds that
the record establishes that petitioner is not entitled to relief,
and therefore an evidentiary hearing is not required.
B. Ineffective Assistance of Counsel Standard
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,
proceeding would have been different.
___,
134
S.
Ct.
1081,
1087-88
the
result
of
the
Hinton v. Alabama, ___ U.S.
(2014)
(citing
Strickland
v.
Washington, 466 U.S. 668, 687, 694 (1984) and Padilla v. Kentucky,
559 U.S. 356, 366 (2010)).
“Because a petitioner's failure to
show either deficient performance or prejudice is fatal to a
Strickland claim, a court need not address both Strickland prongs
- 5 -
if the petitioner fails to satisfy either of them.”
Kokal v.
Sec'y, Dep't of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010)
(citations omitted).
The
proper
measure
of
attorney
performance
is
simply
reasonableness under prevailing professional norms considering all
the
circumstances.
omitted).
Hinton,
134
S.
Ct.
at
1088
(citations
“A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight,
to
reconstruct
the
circumstances
of
counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time.”
Strickland, 466 U.S. at 689.
See also
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (the Court looks to
facts at the time of counsel’s conduct).
This judicial scrutiny
is
adheres
highly
deferential,
and
the
Court
to
a
strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.
90.
Strickland, 466 U.S. at 689-
To be objectively unreasonable, the performance must be such
that no competent counsel would have taken the action.
Rose v.
McNeil, 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).
- 6 -
C. Knowing and Voluntary Guilty Plea Standard
“A guilty plea is more than a confession which admits that
the accused did various acts.”
United States v. Broce, 488 U.S.
563, 570 (1989) (citations omitted).
“By entering a plea of
guilty, the accused is not simply stating that he did the discrete
acts described in the indictment; he is admitting guilt of a
substantive crime.”
Id.
For this reason, the United States
Constitution requires that a guilty plea must be voluntary and
defendant must make the related waivers knowingly, intelligently
and with sufficient awareness of the relevant circumstances and
likely consequences.
United States v. Ruiz, 536 U.S. 622, 629
(2002); Hill v. Lockhart, 474 U.S. 52, 56 (1985); Henderson v.
Morgan, 426 U.S. 637, 645 (1976).
A criminal defendant who has
pled guilty may attack the voluntary and knowing character of the
guilty plea, Tollett v. Henderson, 411 U.S. 258, 267 (1973); Wilson
v. United States, 962 F.2d 996, 997 (11th Cir. 1992), or the
constitutional effectiveness of the assistance she received from
her
attorney
in
deciding
to
plead
guilty,
United
States
v.
Fairchild, 803 F.2d 1121, 1123 (11th Cir. 1986).
To be voluntary and knowing, (1) the guilty plea must be free
from coercion; (2) the defendant must understand the nature of the
charges;
and
(3)
the
defendant
must
consequences of his guilty plea.
F.3d 1318, 1322 (11th Cir. 1999).
know
and
understand
the
United States v. Mosley, 173
Relief from a Rule 11 violation
- 7 -
is available “only in the most egregious cases.”
United States
v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004).
III. Ground One
In Ground One, petitioner asserts ineffective assistance of
counsel because: (1) his attorney negotiated a plea agreement
despite the lack of evidence on the charges he faced; (2) the
guilty pleas were not knowing and voluntary because counsel failed
advise him as to the elements of the offenses, and counsel failed
to properly investigate the basis for the charges; and (3) counsel
failed to argue that under the “corroboration requirement” the
convictions cannot stand.
(Cv. Doc. #2, p. 7.)
As a preliminary matter, petitioner’s arguments based on
errors related to counsel’s negotiation of a written plea agreement
will be denied because there was no plea agreement in this case,
written or otherwise. 2
Since there was no plea agreement to sign,
translate, or explain to petitioner, and no appeal waiver at issue,
these additional arguments made in Ground One (id., pp. 7-12, 21)
2
At the change of plea hearing, the Magistrate Judge stated:
THE COURT: All right. This is without a plea
agreement. Do either counsel -- are either
counsel aware of any verbal promises or other
representations not contained in writing that
would have a bearing on this plea?
Both counsel for petitioner and the government responded: “No,
Your Honor”. (Cr. Doc. #130, 5:3-8.) See also Cr. Doc. #133, ¶¶
5, 101.
- 8 -
are not supported by the record and the motion will be denied as
to these arguments.
A. Factual Basis for Charges
During petitioner’s plea colloquy 3 , the Magistrate Judge
explained the nature of the charges, and each of the elements that
the government would have to prove beyond a reasonable doubt for
petitioner to be found guilty as follows:
THE COURT: You've agreed to plead guilty to
Counts 1 and 2 of the indictment. Count 1
charges you with conspiracy to possess with
intent to distribute 50 or more grams of
methamphetamine and 500 or more grams of a
mixture or substance containing a detectable
amount of methamphetamine. Count 2 charges you
with knowingly and willfully possessing with
intent to distribute and distributing and
aiding and abetting the distribution of five
or more grams of methamphetamine.
. . .
In order for you to be found guilty of Counts
1 and 2, the Government must prove several
elements beyond a reasonable doubt. As to
Count 1, there are four elements. As to Count
2, there are also four elements. The elements
are as follows. As to Count 1, that two or
more people in some way agreed to try to
accomplish a shared and unlawful plan which
was to possess with intent to distribute
methamphetamine; secondly, that you knew the
unlawful purpose of the plan and you willfully
joined in it; three, that the object of the
unlawful plan was to possess with intent to
distribute and to distribute a quantity of
methamphetamine; and four, that the weight of
the controlled substance was at least 50 grams
of actual methamphetamine.
Petitioner was provided a certified Spanish interpreter during
the change of plea hearing. (Cr. Doc. #79.)
3
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The elements as to Count 2 are, first, that
you
knowingly
possessed
methamphetamine;
secondly, that you intended to distribute such
methamphetamine; third, that the weight of the
controlled substance was at least five actual
grams of methamphetamine; and that you aided
and
abetted
the
possession
and
such
distribution.
Do
you
understand
those
elements?
THE DEFENDANT: Yes.
(Cr. Doc. #130, 5:22-6:5; 12:10-13:5.)
Petitioner then admitted
the factual basis for each element and each count before his pleas
of guilty were accepted.
Petitioner initially only admitted what
he did in Atlanta, saying “[t]hat’s it.”
(Id., 13:17-18.)
As to
Count One, petitioner admitted that he delivered and sold illegal
drugs 4 in October or November 2011, and that co-defendant Eugenio
Bravo was the driver.
(Id., 14:4-25.)
Petitioner also agreed
that the total amount of drugs sold by him, and the co-defendants,
was 50 grams or more of what turned out to be Methamphetamine.
(Id., 17:21-25.)
As to Count Two, petitioner eventually admitted
that he provided the Methamphetamine sold by his brother, and that
it
was
5
grams
or
more.
(Id.,
18:16-19:15.)
Even
though
petitioner asserted that he had nothing to do with the actual drug
sale in Sarasota County, eventually petitioner admitted to the
following additional facts:
THE COURT: You understand that while you say
you had nothing to do with the drug sale in
Sarasota County on October the 31st, while you
Petitioner denied knowing it was Methamphetamine in particular.
(Cr. Doc. #130, 13:23-14:1.)
4
- 10 -
may feel like you didn't, if you supplied the
methamphetamine to your brother that he sold,
then you would have aided and abetted him, so
you were involved. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: That's the only reason that I'm
willing to recommend that the plea of guilty
be accepted as to that count is because you've
told me that you supplied the methamphetamine.
Whether or not you came to Florida doesn't
matter. What matters is that you provided the
methamphetamine to your brother and he sold
it. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. And as to the conspiracy
count, which was Count 1, you've told me that
you were involved in November with the sale in
Atlanta.
You've
told
me
you
supplied
methamphetamine to your brother on this
occasion, so you understand you were, by the
law, a co-conspirator; correct?
THE DEFENDANT: Yes.
(Id.,
19:21-20:17.)
With
these
facts
established,
and
each
element addressed, the Magistrate Judge recommended acceptance of
petitioner’s pleas of guilty as to both counts.
The record clearly establishes that the charges and the
individual elements of each Count were explained, petitioner’s
liability
as
a
co-conspirator
explained,
and
that
petitioner
admitted the necessary facts to establish his guilty for each
count.
The
record
further
establishes
that
the
pleas
were
voluntarily and knowingly entered into, and not as a result of any
promises, threats, or coercion.
(Id., 20:25-21:7.)
- 11 -
Petitioner
has established neither deficient performance by, nor prejudice
resulting from, his attorney in connection with the guilty plea.
B. Possible Penalties
Petitioner argues that he was not fully apprised as to his
exposure under the Sentencing Guidelines when entering the pleas
of guilty, and counsel made promises that were not fulfilled with
regard to reductions.
Petitioner also argues that counsel failed
to object to testimony unfavorable to petitioner receiving a safety
valve.
(Cv. Doc. #2, pp. 12-13, 16.)
During
petitioner’s
plea
colloquy,
the
Magistrate
Judge
described the charges, and informed petitioner of his possible
sentences:
. . .
Count 1 carries a maximum sentence of a
mandatory minimum of 10 years up to life, a
term of supervised release of at least five
years to life, a fine of up to $4 million, and
a special assessment of $100.
Count 2 carries a maximum sentence of 5 years
mandatory minimum to a maximum of 40 years
without parole, followed by a term of
supervised release of at least four years to
life and/or a fine of up to $2 million, and a
special assessment.
Do you understand the penalties, sir?
THE DEFENDANT: Yes.
THE COURT: Have you and your attorney talked
about how the Sentencing Commission guidelines
might apply to your case?
THE DEFENDANT: Yes.
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(Cr. Doc. #130, 6:6-20.)
The Magistrate Judge went on to explain
the considerations that go into determining a sentence, and how no
predictions could be made without additional information:
THE COURT: Are you aware that the sentencing
guidelines allow the Court to take into
account such factors as the actual conduct in
which you engaged, any victim of your offense,
the role that you played, whether or not you
engaged in any obstruction of justice, and
whether you've accepted responsibility for
your acts, as well as other relevant factors?
THE DEFENDANT: Yes.
THE COURT: Do you also understand your
criminal history is an important factor in
applying the sentencing guidelines?
THE DEFENDANT: Yes.
THE COURT: The Court will not be able to
determine a guideline range for your case
until after a presentence report has been
completed and you and the Government have had
an opportunity to challenge the facts reported
by the probation officer in that report. It
may be necessary for the Court to resolve
disputed facts or matters contained in the
report,
and
that
also
may
affect
the
applicable guideline range to be applied in
your case.
At this point, it is unlikely that your
attorney can be specific as to a guideline
range which will apply in your case. That's
because he doesn't have all the necessary
information
yet.
He
hasn't
seen
the
presentence report.
. . .
THE COURT: Although the statutes under which
you're charged set forth maximum as well as
mandatory minimum sentences to be imposed, the
Court will consult the sentencing guidelines
as
well
as
other
relevant
factors
in
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determining your actual sentence. At this
time, your sentence will be somewhere between
10 years to life. Do you understand that?
THE DEFENDANT: Yes.
. . .
THE COURT: Very well. Mr. Bernal, do you
understand the possible penalties which apply
if you enter a plea of guilty to these charges?
THE DEFENDANT: Yes.
THE COURT: All right. Very well. Is there
anything you want to ask me or ask your
attorney that bears on your decision to plead
guilty that we've not already covered this
afternoon?
THE DEFENDANT: No, everything's okay.
(Id., 6:25-7:23; 8:7-14; 10:3-6; 20:18-22) (emphasis added).
The Magistrate Judge clearly informed petitioner that no
accurate prediction could be made with regard to his sentence until
such time as the presentence report was created and distributed,
and that the potential sentence could be the minimum mandatory 120
months all the way up to life imprisonment.
The record reflects
that petitioner was not told anything different by counsel at the
time the guilty pleas were entered.
not
applicable
until
counsel
Further, the safety valve was
prevailed
on
the
argument
at
sentencing to eliminate an increase for petitioner’s role as a
supervisor
or
manager.
The
Court
finds
that
the
record
establishes petitioner understood the nature of the charges, and
that
the
pleas
were
made
knowingly
knowledge of the possible penalties.
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and
voluntarily
with
the
Accordingly, this argument
in Ground One of the motion is denied.
C. Sentencing Hearing
At the sentencing hearing 5 on September 10, 2012, the Court
sustained the objection of counsel regarding defendant’s role as
a supervisor or manager, and deleted a three-level increase.
Doc.
#112,
38:17-22.)
With
application of a safety valve.
this,
petitioner
(Cr.
qualified
for
Counsel requested a continuance
to allow petitioner to provide a full debriefing, and possibly
qualify
for
a
safety
valve.
The
request
was
granted,
and
sentencing was continued until October 1, 2012.
Petitioner was interviewed prior to this second sentencing
hearing, but the case agent felt that petitioner was not truthful.
Based on this opinion, the government’s position remained that
petitioner was not entitled to the safety valve.
5:8-11.)
(Cr. Doc. #113,
The sentencing court did not defer to the government’s
assessment, but held an evidentiary hearing.
The case agent testified that petitioner stated to him that
he had only sold methamphetamine “twice, ever, in his lifetime”,
even
though
conspirators.
information
to
contrary
was
(Id., 7:7-23; 17:23-18:7.)
provided
by
other
Co-conspirators and
the confidential source all indicated otherwise, that defendant
The same certified interpreter was placed under oath and provided
services in Spanish to petitioner. (Cr. Doc. #112, 3:14-22.) A
separate interpreter was placed under oath to translate for
witnesses. (Id., 6:19-7:6.)
5
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was the supplier, and identified petitioner as Chiparro.
7:17-19; 8:10-13; 12:10-12.)
with
defendant,
the
case
(Id.,
During the safety valve interview
agent
asked
about
a
consent
search
conducted by the DEA on June 9, 2009, of his apartment where a
gun, over $10,000 in cash, and chemicals for making methamphetamine
were
found.
Petitioner
denied
knowing
anything
about
the
chemicals, even though they were in the kitchen, and it was
“virtually impossible for him not to know that they were there.”
(Id., 16:7-17:9.)
Petitioner
Merchant
or
also
Robert
testified,
Trevino,
and
or
denied
that
they
knowing
owed
Anthony
him
money.
Petitioner only admitted to knowing Barbara Trevino when he was
caught.
(Id., 22:20-23.)
Petitioner also testified that he had
sold his 2002 Jeep Cherokee to Jorge Beltran Carrion, who was
pulled over at a traffic stop with a large sum of money, even
though the vehicle was registered to petitioner.
Petitioner
testified that he kept the insurance on it as a favor while Carrion
had it switched.
(Id., 15:9-22; 24:6-21.)
Defense counsel cross-examined the case agent, and stood by
petitioner’s statements as being truthful and consistent with
prior
statements.
petitioner
still
Counsel
qualified
also
for
a
successfully
three
level
argued
decrease
that
for
acceptance of responsibility, even if he was not given credit under
the safety valve.
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The
Court
finds
that
counsel’s
performance
was
not
objectively deficient and did not cause prejudice to petitioner.
After considering all the testimony, and providing counsel the
opportunity to cross-examine the case agent, the Court found that
petitioner was not truthful in providing all the information that
he possessed with regard to the offenses of conviction, and denied
the safety valve.
This determination was not the result of
ineffective assistance of counsel.
IV. Ground Two
In
Ground
Two,
petitioner
argues
that
his
sentence
was
unreasonable because: (1) the sentence was imposed in violation of
Alleyne v. United States; (2) the sentence was harsh and unjust,
and failed to properly consider factors under § 3553(a); and (3)
there was an insufficient factual inquiry as to the amount of drugs
attributable to petitioner.
(Cv. Doc. #2, pp. 17-27.)
A. Alleyne v. United States 6
Liberally construed, petitioner argues that the finding that
petitioner
lacked
candor
at
his
debriefing
was
used
to
unconstitutionally increase his sentence because “any fact that
increases the mandatory minimum is an “element” that must be
submitted to the jury.”
2151, 2155 (2013).
Alleyne v. United States, 133 S. Ct.
This issue is without merit.
Under 18 U.S.C. § 3553(f)(5), for certain drug offenses, the
6
Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013).
- 17 -
Court shall impose a sentence “without regard to any statutory
minimum
sentence,”
if
truthfully
provided
evidence.”
See
5C1.2(a)(5).
the
to
Court
finds
that
“defendant
has
information
and
Government
all
U.S.
also
the
Sentencing
Guidelines
Manual
§
Whether a defendant qualifies for the so-called
safety valve is a determination for the Court, and not a jury.
United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000).
“[T]here is no requirement in § 3553(f), or otherwise in the law,
that the jury make findings beyond a reasonable doubt with regard
to the five prerequisites for application of the safety valve.”
United States v. Poyato, 454 F.3d 1295, 1299 (11th Cir. 2006).
Denial
of
defendant’s
safety
valve
statutory
applicability.
consideration
maximum
does
sentence,
so
not
increase
Alleyne
has
a
not
The motion will be denied as Alleyne does not
apply.
B. Section 3553 Factors & Reasonableness of Sentence
A § 2255 proceeding cannot be used to relitigate questions
which were raised and considered on direct appeal.
v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001).
United States
Therefore in most cases,
prior disposition of an issue on direct appeal precludes further
review in a subsequent § 2255 proceeding.
Mills v. United States,
36 F.3d 1052, 1056 (11th Cir. 1994), cert. denied, 514 U.S. 1112
(1995).
Similarly, where an issue which could have been raised
on appeal is not pursued, it will not be considered in a § 2255
- 18 -
proceeding absent a showing of cause and actual prejudice from the
errors of which he complains, or actual innocence.
Bousley v.
United States, 523 U.S. 614, 622 (1998); United States v. Frady,
456 U.S. 152, 167-68 (1982); Mills, 36 F.3d at 1055.
Cause for a
procedural default may be established if petitioner can show that
his attorney’s performance failed to meet the Strickland standard
for effective assistance of counsel.
Murray v. Carrier, 477 U.S.
478, 488 (1986); Reece v. United States, 119 F.3d 1462, 1465 (11th
Cir. 1997).
In this case, on direct appeal, petitioner raised two issues
related to his sentencing including the failure to consider 18
U.S.C. § 3553(a) factors.
The Eleventh Circuit rejected the
argument:
First, Bernal fails to show that his sentence
was procedurally unreasonable.
The court
addressed each of Bernal’s arguments regarding
his sentencing and said that it had considered
the policy goals and factors encompassed
within § 3553(a). So although the court did
not address each § 3553(a) factor, its
acknowledgement
that
it
had,
indeed,
considered
all
of
these
factors
was
sufficient. See [United States v. Talley, 431
F.3d 784, 786 (11th Cir. 2005), abrogated on
other grounds by Rita v. United States, 551
U.S. 338 (2007)]. . . .
Nor has Bernal demonstrated that his sentence
was substantively unreasonable.
To the
extent that Bernal is objecting to the court’s
weighing of the § 3553(a) factors, his
argument fails.
First, the weight given to
any specific § 3553(a) factor is committed to
the sound discretion of the district court.
- 19 -
Clay, 483 F.3d at 743. 7 Moreover, Bernal’s
lack of candor at his debriefing and before
the court was relevant to evaluating his
“history and characteristics,” and we will not
second guess the district court’s judgment
regarding the appropriate weight to give a §
3553(a) factor. Snipes, 611 F.3d at 872 8; 18
U.S.C. § 3553(a)(l). Because Bernal’s sentence
was within the applicable guideline range, we
would ordinarily expect the sentence to be
reasonable. Talley, 431 F.3d at 788. Finally,
Bernal’s 135-month sentence (equivalent to
11.25 years) was substantially below the
statutory maximums for both Counts One and
Two, life and 40 years respectively, yet
another indicator of reasonableness.
See
Gonzalez, 550 F.3d at 1324. 9
(Cr. Doc. #121, pp. 4-5.)
Also noted by the Eleventh Circuit,
there was no indicator that the sentence was unreasonable.
Eleventh
Circuit
considered,
and
determined
the
record
that
the
reflects
§
that
As the
3553
factors
were
the
factors
were
considered 10, this portion of the motion will be dismissed as
barred.
C. Factual Basis for Drug Quantity
Petitioner argues that a specific threshold quantity of a
controlled substance must be treated as an element of the offense,
7
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
8 United
9
States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010).
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
The Court stated: “Mr. Bernal, the Court is required to impose
a sentence that is of sufficient, but not greater than necessary,
after considering all the factors identified in Title 18, United
States Code, Section 3553. The Court has considered all those
factors, whether we talk about them or not. (Cr. Doc. #113, 33:610.)
10
- 20 -
charged in the indictment, and found beyond a reasonable doubt by
a jury if the sentence exceeds the “maximum allowable”.
pp. 22-23.)
(Doc. #2,
The motion will be denied because the threshold amount
of methamphetamine was in fact alleged in the Indictment, admitted
during the change of plea hearing, and also admitted as to the
facts in the Presentence Report.
The Indictment alleged a conspiracy involving 50 or more grams
of methamphetamine, and 500 or more grams of a mixture or substance
containing a detectable amount of methamphetamine in Count One,
and 5 or more grams of methamphetamine in Count Two.
#1.)
(Cr. Doc.
Petitioner was charged under 21 U.S.C. § 841(b)(1)(A)(viii)
providing that if 50 grams or more of methamphetamine are involved,
a person is subject to a term of imprisonment not less than 10
years,
or
more
than
life,
and
also
under
21
U.S.C.
§
841(b)(1)(B)(viii) providing that 5 grams or more subjects a person
to a term of imprisonment not less than 5 years.
(Id.)
Petitioner
pled guilty to both counts as charged in the Indictment.
During
the plea colloquy, petitioner admitted to both the 50 grams in
Count One, and eventually to 5 grams or more in Count Two.
(Cr.
Doc. #130, 17:21-25; 19:5-15.)
Petitioner
also
admitted
Presentence Report as follows:
to
the
facts
contained
in
the
On October 14, 2011, the Drug
Enforcement Agency (DEA) began using a confidential source to make
weekly purchases of crystal methamphetamine for $1,500 per ounce
- 21 -
from Rene Bernal, petitioner’s brother.
it
was
determined
that
Rene
Bernal
Through conversations,
answered
directly
to
his
brother, “the boss”, who sent vehicles with hidden compartments
containing
methamphetamine
from
(Cr. Doc. #130, ¶¶ 16-17, 20-21.)
Atlanta
to
Southwest
Florida.
On November 17, 2011, DEA agents
met the confidential source who contacted petitioner for a meeting
in Georgia.
Eventually, petitioner produced a gift bag contained
methamphetamine
in
exchange
for
$7,800
from
the
confidential
source with the expectation that the remaining balance would be
paid to his brother Rene Bernal as the agreed to price had been
$9,000.
Petitioner
also
indicated
that
methamphetamine to his brother in Florida.
48.)
he
had
already
sent
(Id., ¶¶ 34, 46, 47,
The conspiracy involved distribution of a total of at least
359.5
net
grams
of
a
mixture
or
substance
containing
methamphetamine or 256.10 net grams of actual methamphetamine
between October 14, 2011, and November 17, 2011.
¶ 50.)
(Cr. Doc. #133,
Petitioner’s range of imprisonment was 120 months to 135
months, and even after application of Amendment 782, petitioner’s
range of imprisonment could only be lowered to the statutory
minimum of 120 months.
case.
Petitioner elected to plead guilty in this
The motion will be denied as to this last claim.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
- 22 -
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. #124) is DISMISSED IN PART and
otherwise DENIED as set forth above.
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.”
showing,
Petitioner
28 U.S.C. § 2253(c)(2).
“must
demonstrate
that
To make such a
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)(citations and internal quotation marks omitted).
Petitioner
has
not
made
the
requisite
circumstances.
- 23 -
showing
in
these
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
of April, 2017.
Copies:
Petitioner
AUSA
- 24 -
12th
day
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