Alvarez v. USA

Filing 10

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment for the United States and close the civil case. Signed by Judge Susan C Bucklew on 10/10/2013. (GMS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROLANDO COCA ALVAREZ,
Petitioner,
v.

Case No. 8:13-cv-766-T-24-AEP
Case No. 8:10-cr-512-T-24-AEP

UNITED STATES OF AMERICA,
Respondent.
___________________________________/
ORDER
This cause comes before the Court on Petitioner Rolando Coca Alvarez’s Motion under
28 U.S.C. § 2255. (Cr. Dkt. 69, Civ. Dkt. 1.) The Government filed a response in opposition.
(Civ. Dkt. 9.) The Petitioner was given an opportunity to reply but failed to file a reply.
I.

BACKGROUND
On March 6, 2010, Petitioner Rolando Coca Alvarez and other persons entered the iGov

Technologies warehouse in Tampa, Florida, disarmed the alarm system, and removed
approximately 3,000 computers, scanners, and other electronic equipment, all belonging to the
United States Military.
On December 8, 2010, Petitioner was charged with one count of theft of Government
property in violation of 18 U.S.C. § 641. (Cr. Dkt. 1.) On February 28, 2011, Daniel Hernandez
filed a notice of appearance as Petitioner’s counsel. (Cr. Dkt. 14.) Three months later, Mr.
Hernandez withdrew as Petitioner’s counsel, and Assistant Federal Public Defender Jenny
Devine was appointed as counsel. (Cr. Dkts. 30-35.)
On August 22, 2011, Petitioner pled guilty without a plea agreement to one count of theft
of Government property in violation of 18 U.S.C. § 641. (Cr. Dkts. 1, 62.) The Presentence

Investigation Report (“PSR”) held Petitioner accountable for a total loss amount of
$7,406,901.46, resulting in a 20-level increase under § 2B1.1(b)(1)(K) of the United States
Sentencing Guidelines (“USSG”). Petitioner’s total offense level was 23, with a criminal history
category of I, USSG range of 46 to 57 months of imprisonment.
Both the Government and Petitioner filed objections to the PSR (the Government for
failure to include a four-level role increase and Petitioner as to the loss amount and restitution
amount) but, at sentencing, withdrew their objections. (Cr. Dkt. 60.) The Court adopted,
without objection, the facts and the guideline recommendations in the PSR. (Cr. Dkt. 60.) The
Court sentenced Petitioner to 57 months of imprisonment. (Cr. Dkts. 52, 60.)
Petitioner appealed his sentence, arguing that it was procedurally and substantively
unreasonable because the Court did not adequately explain its decision, the Court credited a
detective’s unsworn testimony, and the sentence was greater than necessary. (Cr. Dkt. 56.) On
June 19, 2012, the Eleventh Circuit affirmed Petitioner conviction and sentence. (Cr. Dkts. 67,
68); United States v. Alvarez, 472 Fed. App’x 880 (11th Cir. 2012).
On March 25, 2013, Petitioner filed a timely 28 U.S.C. § 2255 motion, setting forth the
following four grounds of relief based on ineffective assistance of counsel: (1) statements from
Mr. Hernandez prejudiced the Court and Ms. Devine; (2) Ms. Devine failed to object to the total
loss amount; (3) Ms. Devine failed to ask the Court to clarify its finding that Petitioner was not
truthful at the sentencing; and (4) Ms. Devine failed to argue for a downward departure based on
Petitioner’s cooperation with the Government.
II.

STANDARD
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court created a two-

part test for determining whether a defendant received ineffective assistance of counsel. First, a

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defendant must demonstrate that his attorney’s performance was deficient, which requires a
“showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed ... by the Sixth Amendment.” Id. Second, a defendant must demonstrate that the
defective performance prejudiced the defense to such a degree that the results of the trial cannot
be trusted. Id. “There is no reason for a court deciding an ineffective-assistance-of-counsel
claim to approach the inquiry in the same order, or even to address both components of the
inquiry, if the prisoner makes an insufficient showing on one.” Lockwood v. Hooks, 415 F.
App’x 955, 956 (11th Cir. 2011) (citations omitted).
Under the performance component of the Strickland inquiry, a movant “must show that
counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 688. The reasonableness of an attorney’s performance is evaluated from counsel’s
perspective at the time of the alleged error and in light of all the circumstances. Id. at 690. The
movant carries a heavy burden, as there is “a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance” and “that, under the circumstances,
the challenged action might be considered sound trial strategy.” Id. at 689.
Simply showing that counsel erred is insufficient; the defects in counsel’s performance
must be prejudicial to the defense. Id. at 691-92. Under the prejudice component of Strickland,
a movant must show that there was a reasonable probability that the results would have been
different but for counsel’s deficient performance. Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
III.

PETITIONER’S § 2255 MOTION
A.

Ground One: Former counsel’s statements prejudiced new counsel

In ground one, Petitioner contends that Ms. Devine and the Court were prejudiced by Mr.

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Hernandez’s statement that he had irreconcilable differences stemming from Petitioner’s lack of
cooperation with the Government. (Civ. Dkt. 1 at 4.)
On May 31, 2011, Mr. Hernandez moved to withdraw as Petitioner’s counsel, because:
(1) Petitioner was “unwilling to complete the conditions of employment after several reminders;”
(2) Petitioner and Mr. Hernandez had “developed differences of opinion regarding several
aspects of [Petitioner]’s case which does not allow the [Petitioner] and [Mr. Herndandez] to have
the necessary rapport for working together;” (3) when they met to discuss discovery, pleading,
proceeding to trial, and the sentencing guidelines, Petitioner was “acting angry and disrespectful”
and told Mr. Hernandez that he was “doing absolutely nothing for” Petitioner; and (4) Mr.
Hernandez had “recent unpleasant contacts with [Petitioner] and his family.” (Cr. Dkt. 30.)
On June 3, 2011, the Court held a hearing on Mr. Hernandez’s motion to withdraw. (Cr.
Dkt. 32.) After hearing from Mr. Hernandez and Petitioner, the Court granted the motion. (Cr.
Dkt. 33.)
In his § 2255 motion, Petitioner contends that Mr. Hernandez presumed Petitioner
refused to participate with the Government despite knowing all the co-conspirators, and that Mr.
Hernandez passed on his presumption by making “biased statements” prejudicing the Court and
Ms. Devine. However, there is no evidence that Mr. Hernandez made statements regarding
Petitioner’s refusal to cooperate with the Government. In his affidavit, Mr. Hernandez states that
he “never said or intimated that [he] was asking to withdraw because [Petitioner] was not
cooperating with the government.” (Civ. Dkt. 9, Ex. 1.)
Nor is there evidence that Mr. Hernandez prejudiced Ms. Devine or the Court. Ms.
Devine’s affidavit states that she was not prejudiced or influenced by any statements made by
Mr. Hernandez. (Civ. Dkt. 9, Ex. 2.) Petitioner contends that the Court must have been

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prejudiced by Mr. Hernandez’s statements because the Court stated at the sentencing hearing that
the Court remembered Mr. Hernandez formerly represented Petitioner. However, the sentencing
hearing transcript shows that the Court never stated that it remembered Mr. Hernandez formerly
representing Petitioner. The only discussion regarding previous counsel was the following:
MR. MUENCH: Yes, Judge. Uh, as I’m sure you noticed in looking at the
Presentence Report, this was an extremely, uh, professional burglary. This is not a
typical burglary.
THE COURT: Yes, I had a hearing on this, and I can’t remember the context,
maybe a bond hearing.
MR. MUENCH: Yes.
THE COURT: What was it?
MS. DEVINE: It was a motion to withdraw by his last counsel.
THE COURT: Oh, okay.
MR. MUENCH: No, it was before that. It was a bond hearing. She wasn’t here –
MS. DEVINE: Oh.
(Dkt. 60 at 10:13-25.) Petitioner’s allegation that Mr. Hernandez must have made statements
that prejudiced the Court and Ms. Devine is purely speculative. Therefore, Petitioner’s claim in
Ground One is without merit.
B.

Ground Two: Failure to object to the total loss amount

In ground two, Petitioner contends Ms. Devine rendered ineffective assistance by failing
to object to the total loss amount of $7,406,901.46 at the sentencing and by not raising this issue
on appeal.
Under § 2B1.1(b)(1)(K), a loss amount exceeding $7,000,000 results in a 20-level
enhancement. The PSR determined that Petitioner was accountable for a total loss amount of
$7,406,901.46, resulting in a 20-level increase under § 2B1.1(b)(1)(K). At sentencing, Petitioner
withdrew his objection to the loss amount contained in the PSR in return for the Government
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withdrawing their objection to the PSR’s failure to include a four-level role increase. According
to Ms. Devine’s affidavit:
The Government agreed to withdraw their role objection for a 4-level increase in
return for the defense withdrawing their loss amount objection for a 2-level
decrease. At that time, I believed the Government had a better chance at winning
their role objection than we had at winning the loss amount objection. It was my
professional opinion that this compromise helped [Petitioner] avoid an even
higher advisory guideline range than what he currently faced.
(Civ. Dkt. 9, Ex. 2 ¶ 4.)
In his § 2255 motion, Petitioner contends that the total amount should not have included
the cost of extended warranties on top of the manufacturer’s standard warranties. Petitioner
contends that, without the inclusion of the extended warranties, the total loss amount would be
less than $7 million (but more than $2 million), which would have reduced his offense level and
warranted a lower guideline range. Petitioner argues that Ms. Devine should have objected to
the inclusion of extended warranties in the total loss amount at sentencing and on appeal.
Petitioner’s argument lacks merit not only because he failed to demonstrate that the cost
of the extended warranties should not have been included in the loss amount but also because
Ms. Devine’s strategy was objectively reasonable. Ms. Devine believed that the Government
was more likely to succeed on its role objection which would have resulted in a four-level
increase, than Petitioner was on his loss objection which would have resulted in a two-level
decrease. Petitioner agreed to withdraw his objection to the loss amount in exchange for the
Government not seeking an increase for his role as an organizer. Under the circumstances, Ms.
Devine’s withdrawal of the loss amount objection “might be considered sound trial strategy.”
Strickland, 466 U.S. at 689. Ms. Devine’s performance with regards to the loss calculation,
evaluated from counsel’s perspective at the time of the alleged error and in light of all the
circumstances, was well within the “wide range of reasonable professional assistance.” Id. at
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689. Further, for the same reason that Ms. Devine was reasonable for not objecting to the loss
amount at the sentencing, it was reasonable for her not to appeal it. Petitioner’s ineffectiveness
claim in Ground Two is therefore without merit.
C.

Ground Three: Failure to request clarification of Court’s statement

In ground three, Petitioner contends Ms. Devine rendered ineffective assistance by failing
to “request clarification” as to why the Court stated that Petitioner was not being truthful.
At the sentencing, Petitioner addressed the Court. (Cr. Dkt. 60 at 28-33.) Petitioner
denied that he came from Miami to Tampa to commit the theft. Petitioner first asserted that his
residence was in Tampa, but after further questioning by the Court, Petitioner stated that he went
to Miami three days a week and got a hotel room. Further, Petitioner denied that he was inside
the iGov Technologies warehouse but only stood outside serving as a lookout while theft was
occurring. He stated that his DNA was found inside the iGov Technologies warehouse because
he had gone to scope out the facility on the day before the theft, when it was open to the public.
However, Hillsborough County Sheriff’s Detective David Thatcher testified that law
enforcement agents infrequently observed Petitioner in Tampa (and it would be only on the
weekends), whereas they routinely observed him in Miami. (Cr. Dkt. 60 at 41.) Further,
although security cameras showed that Petitioner walked through the front door of the iGov
Technologies warehouse on the day before the theft, law enforcement agents found his DNA on
a different door—the one that was propped open during the theft—which was not accessible to
the public. (Cr. Dkt. 60 at 35-36.)
In explaining why the Court was sentencing Petitioner to 57 months in prison, the top of
the guidelines range, the Court stated:
I didn’t think you were truthful with me this morning. You downplayed, number
one, the fact that--first of all, you told me you lived in Tampa, and then you told
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me, oh, no, you went to Miami three days a week. And now I hear that you were
very seldom in Tampa. So I didn’t think you were truthful in that regard to me
this morning.
Also there was the DNA checking out the front door because you went in there
the day before. And that wasn’t even where the DNA was found. So none of that
encourages me as far as your truthfulness is concerned and your acceptance of
responsibility in this matter.
(Cr. Dkt. 60 at 44-45.)
In his § 2255 motion, Petitioner contends Ms. Devine was ineffective for failing to ask
the Court to clarify why the Court believed Petitioner was untruthful. However, the Court
explained why it believed Petitioner was being untruthful and asking for further explanation
would not have benefitted Petitioner. Under the circumstances, Ms. Devine acted responsibly in
deciding against seeking further clarification. Petitioner’s ineffectiveness claim in Ground Three
is without merit.
D.

Ground Four: Failure to seek downward departure

In ground four, Petitioner contends Ms. Devine rendered ineffective assistance by failing
to seek a downward departure for his cooperation with the Government through a § 5K1.1
motion or a motion under the Federal Rules of Criminal Procedure 35(b).
Section 5K1.1 of the USSG gives the Government “a power, not a duty, to file a motion
when a defendant has substantially assisted.” United States v. Forney, 9 F.3d 1492, 1500 (11th
Cir. 1993). The same holds true for a Rule 35(b) motion. Where the Government did not file a
motion for downward departure, Ms. Devine was not ineffective for failing to argue for a
downward departure under § 5k1.1. Nor could Ms. Devine have filed a § 5k1.1 motion, since
only the Government can file such a motion. Further, the Court normally does not depart
downward for cooperation when the Government does not file a motion seeking it. (Cr. Dkt. 60
at 31.) Petitioner’s ineffectiveness claim in Ground Four lacks merit.
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IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Petitioner Rolando Coca

Alvarez’s Motion under 28 U.S.C. § 2255 (Cr. Dkt. 69, Cv. Dkt. 1) is DENIED. The Clerk is
directed to enter judgment for the United States and to close the civil case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. 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). Rather, a district court must first
issue a certificate of appealability (COA). Id. “A [COA] may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” Id. at § 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) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled
to appeal in forma pauperis.
DONE AND ORDERED at Tampa, Florida, this 10th day of October, 2013.

Copies to: Counsel of Record and Pro Se Petitioner

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