Nunez v. USA
Filing
3
ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to ENTER JUDGMENT against Nunez and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/11/2014. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:11-cr-256-T-23TGW
8:14-cv-2176-T-23TGW
HECTOR NUNEZ
/
ORDER
Nunez’s motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the
validity of his conviction for conspiring to possess with the intent to distribute five
kilograms or more of cocaine, for which offenses he is imprisoned for 120 months.
Rule 4, Rules Governing Section 2255 Cases, requires a preliminary review of the
motion to vacate. Section 2255 requires denial of the motion without a response if
the “motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief . . . .” Accord Wright v. United States, 624 F.2d 557, 558 (5th Cir.
1980)* (finding the summary dismissal of a Section 2255 motion was proper
“[b]ecause in this case the record, uncontradicted by [defendant], shows that he is not
entitled to relief”); Hart v. United States, 565 F.2d 360, 361 (5th Cir. 1978) (“Rule 4(b),
[Rules Governing Section 2255 Proceedings], allows the district court to summarily
*
Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued
before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).
dismiss the motion and notify the movant if ‘it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in the case that the
movant is not entitled to relief . . . .’”). Nunez’s claims lack merit.
Nunez negotiated a plea agreement (Doc. 33 in 8:11-cr-256-T-23TGW), which
specifically states that Nunez “expressly waives the right to appeal defendant’s
sentence or to challenge it collaterally on any ground, including the ground that the
Court erred in determining the applicable guidelines range pursuant to the United
States Sentencing Guidelines, except (a) the ground that the sentence exceeds the
defendant’s applicable guidelines range as determined by the Court pursuant to the
United States Sentencing Guidelines; (b) the ground that the sentence exceeds the
statutory maximum penalty; or (c) the ground that the sentence violates the Eighth
Amendment to the Constitution . . . .” Plea Agreement ¶ 5 at 12 (Doc. 33) (emphasis
original). Nunez received a mandatory minimum sentence of 120 months
imprisonment, which was neither an upward departure nor above the statutorily
authorized maximum sentence of life imprisonment. Nunez’s waiver of his right to
challenge the sentence controls.
Nunez’s motion to vacate asserts that trial counsel rendered ineffective
assistance (1) by failing to move for a downward departure under §5C1.2, (2) by
failing to move for a downward departure under §5K1.1, and (3) by failing to move
for application of a “fast track” review under §5k3.1. Each claim challenges the
determination of Nunez’s sentence. A valid appeal waiver precludes an ineffective
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assistance of counsel challenge to the sentence. “[A] valid sentence-appeal waiver,
entered into voluntarily and knowingly, pursuant to a plea agreement, precludes the
defendant from attempting to attack, in a collateral proceeding, the sentence through
a claim of ineffective assistance of counsel during sentencing.” Williams v. United
States, 396 F.3d 1340, 1342 (11th Cir.), cert. denied, 546 U.S. 902 (2005). Nunez
cannot circumvent the appeal waiver provision by disguising his challenge as a claim
of ineffective assistance of counsel. “A contrary result would permit a defendant to
circumvent the terms of the sentence-appeal waiver simply by recasting a challenge to
his sentence as a claim of ineffective assistance, thus rendering the waiver
meaningless.” Williams, 396 F.3d at 1342. During the guilty plea hearing the
Magistrate Judge specifically addressed the appeal waiver provision and Nunez
acknowledged understanding the breadth of the rights that he was waiving under the
terms of the appeal waiver provision (Transcript of Plea Hearing at 25-27, Doc. 67):
THE COURT: I also want to emphasize paragraph five. First, I
will tell you that even though you are pleading guilty, you have
a right to appeal your sentence. But under the paragraph five
you limit the extent to which you can appeal your sentence.
Under paragraph five you can only appeal if the sentence
exceeds the guideline range as determined by the Court under
the Guidelines or the sentence exceeds the statutory maximum
penalty or the sentence violates the Eighth Amendment to the
Constitution, which prohibits excessive fines and cruel and
unusual punishment. Those are the only three things about
your sentence that you can appeal. Do you understand that?
THE DEFENDANT: Yes, sir.
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THE COURT: And in particular, what you cannot appeal is the
way the Court calculates the Sentencing Guidelines. Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And furthermore, you cannot come back to this
Court at some later time and complain about the calculation
either. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And that includes being unable to come back
and complain that your lawyer was somehow ineffective with
respect to the Guidelines. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any question about that provision?
THE DEFENDANT: No, sir.
THE COURT: And are you agreeing to it freely and voluntarily
as part of this plea agreement?
THE DEFENDANT: Yes, sir.
The colloquy ensured that Nunez understood the significance of the appeal
waiver. The circuit court enforced the appeal waiver on direct appeal when it
dismissed Nunez’s appeal stating, “The Government’s motion to dismiss this appeal
pursuant to the appeal waiver in Appellant’s plea agreement is GRANTED. United
States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993) (sentence appeal waiver will be
enforced if it was made knowingly and voluntarily).” (Doc. 72) Similarly, as
Williams, 396 F.3d at 1342, explains, the waiver precludes this collateral challenge:
[A]t the plea colloquy, the court specifically questioned
Williams concerning the specifics of the sentence-appeal waiver
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and determined that he had entered into the written plea
agreement, which included the appeal waiver, knowingly and
voluntarily. The plain language of the agreement informed
Williams that he was waiving a collateral attack on his
sentence. Under these circumstances, the sentence-appeal
waiver precludes a § 2255 claims [sic] based on ineffective
assistance at sentencing.”
Even if not precluded by the appeal waiver, each asserted ground is refuted by
the record. In his plea agreement, Nunez admitted to the following facts (Doc. 33 at
15-16):
In December 2010, law enforcement received information from
a reliable confidential source (CS ) that co-defendant Noe Perez
was moving large quantities of cocaine in the central Florida
area. Perez told CS that his local source of supply was
defendant Hector Nunez. He also told the CS that he had been
working with Nunez for three months. He said he had the
ability to get up to 10 kilos of cocaine a week.
In late January 2011, the CS contacted Perez and Nunez. They
tell the CS that defendant Nunez recently traveled to Mexico.
They discussed in the CS’s presence the sale of 4 kilos of
cocaine to one of Nunez’ other customers. The CS passed this
information to law enforcement.
On April 7, 2011, the CS informed Agent Jason Satterwhite
that the defendant had received 15 kilos of cocaine that
morning from their source in Atlanta, Georgia. Nunez showed
the CS a kilo of cocaine that he pulled from underneath the seat
of his car. Nunez said he still had 6 kilos left so whoever the CS
was working for needed to make a quick decision about buying
from him.
The CS contacted Agent Satterwhite. Agent Satterwhite
instructed the CS to arrange a 3 kilo buy from Nunez and
Perez. The CS contacted Nunez who put the CS in touch with
Perez. Perez advised the CS that the price per kilo was $32,000.
The CS agreed to a 3 kilo deal but said he needed some time to
get the money together for the third kilo. Perez told the CS to
contact him when he had the money together for the third kilo.
The CS later called Perez to tell him that he had the money and
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was ready to make the buy. Perez told him that he was going to
get it. Nunez called the CS and told the CS to meet him at the
Best Buy parking lot at 4210 14th Street in Bradenton, Florida.
DEA Special Agent Gary Corbett prepared and equipped the
CS for the meet.
At about 5 that same afternoon the CS goes to the agreed upon
location and contacts the defendant to let him know that he is
at the location. Perez tells him that he is on his way. A few
minutes later both Perez and Nunez arrive at the parking lot.
They exit the car and approach the CS vehicle. Nunez asks to
see the money. Once he inspects it, Nunez then makes a phone
call asking that the cocaine be delivered to the Best Buy parking
lot. A few minutes later Nunez’ wife arrives to the location.
Nunez and the CS walk to the car driven by Nunez’ wife and
retrieve the contents of a shoe box from the back seat of the car.
Law-enforcement moves in to make the arrest. In the shoe box
they find 3 kilos of cocaine. Nunez and Perez are arrested.
After having his Miranda rights read to him, Nunez admitted
that he and Perez were there to make a sale of three kilos of
cocaine. He consents to the search of his house. Law
enforcement goes back to his house and conducts a search of
the house. During the search they find 2 kilos and 279 grams of
cocaine concealed in an ice chest found in the garage.
Nunez’s first ground faults counsel for not moving for a downward departure
under §5C1.2. Entitlement to a sentence below the statutory mandatory minimum
requires that the defendant not have possessed a firearm in connection with the
offense. Defense counsel objected to the presentence report’s including a two-point
enhancement because a firearm was in Nunez’s residence. At sentencing defense
counsel argued strenuously for excluding the firearm from determining Nunez’s
sentence and presented Nunez’s testimony about why he possessed a gun inside his
residence. (Transcript of Sentencing at 8-27, Doc. 68) The district court rejected
Nunez’s objection to considering the firearm. Based on the determination that he
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possessed a firearm in connection with the offense, Nunez is ineligible for a “safety
valve” sentence under §5C1.2.
Nunez’s second ground faults counsel for not moving for a downward
departure under §5K1.1. During the guilty plea hearing the Magistrate Judge
specifically addressed the possibility of obtaining a lesser sentence under §5k1.1 based
on Nunez’s cooperation. Nunez acknowledged understanding that the government
retains complete discretion to determine whether Nunez’s substantial assistance
warrants relief and that the district court has complete discretion to determine
whether to follow the government’s recommendation for a lesser sentence (Transcript
of Plea Hearing at 22-23, Doc. 67):
THE COURT: Paragraph 11 concerns cooperation. And in
paragraph 11 you agree to cooperate fully and to testify if
necessary. And in return for your cooperation, the government
agrees to consider filing a motion saying you have provided
substantial assistance.
Now, if the government does file a motion saying you have
provided substantial assistance, that could benefit you in
various ways, depending upon what the government puts in its
motion.
The government could ask the Court to depart down below
whatever guideline range has been calculated or the
government could ask the Court to depart down below the tenyear minimum mandatory sentence and to sentence you under
the Guidelines or the government could ask the Court to do
both of those.
Do you understand how you could be benefitted if the
government files a substantial assistance motion?
THE DEFENDANT: Yes, sir.
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THE COURT: Now, I want to emphasize that in return for
your cooperation, all that the government is agreeing to do is to
consider filing a motion; in other words, to think about it. They
are not promising that they will file that motion. Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And if the government does not file the motion,
you do not have a right to challenge their failure to do so. Do
you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Furthermore, if the government does file the
motion, the Court could either deny the motion or give you less
benefit than the government has recommended. Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And if that should happen, you would not have
a right to withdraw your plea of guilty. Do you understand
that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any question about that provision?
THE DEFENDANT: No, sir.
Defense counsel cannot render ineffective assistance for not moving for a
lesser sentence under §5K1.1 because only the United States can invoke that
provision, and the United States filed no motion under §5K1.1 at sentencing.
Apparently alluding to the prospect of a later motion to reduce sentence under
Rule 35, Federal Rules of Criminal Procedure, based on Nunez’s cooperation, at
sentencing defense counsel stated that he was “hopeful that we will be back before
this Court at a later date . . . .” (Transcript of Sentencing Hearing at 28, Doc. 68)
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Nunez’s third ground faults counsel for not moving for application of a “fast
track” review under §5k3.1. The United States Attorney’s Office for the Middle
District of Florida has no “fast track” program. United States v. Llanos-Agostadero, 486
F.3d 1194, 1199 (11th Cir. 2007) (recognizing that no “fast track” program exists in
the Middle District of Florida). Nunez cannot rely on the existence of a “fast track”
program in another district. United States v. Campos-Diaz, 472 F.3d 1278, 1280 (11th
Cir. 2006), cert. denied, 549 U.S. 1361 (2007).
To summarize, even if he had not waived his right to challenge the sentence
based on the asserted grounds, Nunez cannot show that trial counsel rendered
ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 697 (1984)
(establishing that the test for proving a claim of ineffective assistance of counsel is
that a petitioner must prove that trial counsel’s performance was both deficient and
prejudicial). Nunez can prove neither deficient performance nor prejudice.
Accordingly, Nunez’s motion to vacate (Doc. 1) is DENIED. The clerk must
enter a judgment against Nunez and close this case.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Nunez is not entitled to a certificate of appealability (“COA”). 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
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a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” To merit a COA, Nunez
must show that reasonable jurists would find debatable both (1) the merits of the
underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d
926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would
debate either the merits of the claims or the procedural issues, Nunez is not entitled
to a certificate of appealability and he is not entitled to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Nunez must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 11, 2014.
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