Ruiz-Lopez v. United States of America

Filing 6

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 Ruiz-Lopez and to CLOSE the case. Signed by Judge Steven D. Merryday on 6/5/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.

CASE NO. 8:14-cr-486-T-23TBM
8:16-cv-1234-T-23TBM

DAMIAN RUIZ-LOPEZ
/

ORDER
Ruiz-Lopez moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges
the validity of his convictions for one count of conspiracy to commit bank fraud and
one count of conspiracy to commit money laundering, for which offenses he is
imprisoned for seventy months. Although timely, Ruiz-Lopez’s motion lacks merit
because in the plea agreement he waived the right to raise the grounds he asserts in
the motion to vacate.
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)1 (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

Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued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).
1

entitled to relief”); Hart v. United States, 565 F.2d 360, 361 (5th Cir. 1978) (“Rule 4(b)
[Rules Governing § 2255 Proceedings], allows the district court to summarily 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 . . . .’”). See United States v. Deal, 678 F.2d 1062, 1065 (11th Cir.
1982) (citing Wright and Hart).
FACTS2
[I]n the Middle District of Florida and elsewhere, defendants
Damian Ruiz-Lopez, Justin Lugo, and Dani Munoz-Guzman
conspired with separately charged Miguel Perez and others to
obtain money from financial institutions by means of fraudulent
representations using counterfeit credit and debit cards.
Specifically, defendants were part of a criminal “carding” group
in the Tampa Bay area that purchased stolen credit card and
debit card information, along with account holder names and
postal zip codes, from an online website with the initials VM.
The conspirators then used a laptop and a card encoder to
re-encode used gift or other cards with the stolen information.
The conspirators used the counterfeit credit and debit cards to
purchase fuel (or other items) from area gas stations and retail
locations, including at Sam’s Club. Conspirators typically filled
their vehicle’s tank with fuel, and then filled a secondary
bladder, or a storage container, with fuel. Members of the
organization then sold the fuel at a discounted rate to truck
drivers, converting the stolen fuel into cash. The conspirators
used 639 different credit and/or debit cards as part of the group,
causing $170,571.49 in actual loss to the financial institutions
and/or individual victims. The 639 counterfeit credit and/or
debit cards had a total credit limit/available balance of
$1,969,243.96.
The conspirators in this case usually purchased their stolen
credit and debit card information from the VM website. It is an
invitation only website, where you must be recommended by
another member in order to receive a username and password.
VM appears similar to the E-Bay website, but it is exclusively
2

This summary of the facts derives from the plea agreement. (Doc. 64 at 17–22)
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dedicated to criminal purposes — the website sells stolen credit
card and debit card information. The slogan for the site is
“Private Information Sellers & Magnetic Stripe Kings.” The site
boasts that it has over 3 million stolen American credit and
debit card numbers, and that its card data is 95% valid. The
vendors on the website are typically computer hackers, many of
whom are of Russian or Ukrainian background. To fund a VM
account, the user must send money to designated recipients,
typically in the Ukraine. In order to thwart law enforcement
efforts, the recipient accounts are typically changed on a regular
basis. The website sells “dumps” of credit card and debit card
information. The price of the credit card and debit card
information depends based on the quality of the information,
and for a higher price of about $20, includes zip code
information regarding the account holder. More valuable credit
and debit card information can be priced even higher depending
on the credit limit for the card.
Therefore, as part of the carding scheme, . . . Ruiz-Lopez
conspired with Perez, Dani Munoz-Guzman and others to
transfer money from inside the United States to locations
outside the United States (specifically, the Ukraine) in order to
promote the bank fraud conspiracy. In total, records recovered
indicate that, as part of the scheme: (1) Perez sent $2,150 via
Western Union . . . to recipients in the Ukraine and (2) that
Perez, Damian Ruiz-Lopez and Dani Munoz-Guzman and
other co-conspirators sent $11,400 via MoneyGram to
recipients in the Ukraine . . . .
The money was sent to these recipients to place funds on
Miguel Perez’s account with the website VM. Those funds were
then used to promote the scheme by purchasing additional
stolen credit and debit card information to create counterfeit
credit and debit cards to facilitate the bank fraud conspiracy.
Lugo, Ruiz-Lopez, and Munoz-Guzman are all on video
multiple times purchasing large amounts of gasoline using
stolen credit and debit card information as part of the scheme.
For example, on July 4, 2013, . . . Ruiz-Lopez made a series of
fraudulent purchases of gasoline from a Sam’s Club location in
Brandon, Florida, using a counterfeit access device and a Sam’s
Club membership card in Ruiz-Lopez’s name. On that same
day . . . Munoz-Guzman made a series of fraudulent gasoline
purchases from the same Sam’s Club location using another
counterfeit access device and a Sam’s Club membership card in
Ruiz-Lopez’s name. All of these transactions were captured on
surveillance video at the gas station.
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Justin Lugo was also captured on surveillance video performing
fraudulent transactions. For example, on July 9, 2013, . . . Lugo
was captured on video during a series of fraudulent gas
purchases at a Sam’s Club location in Clearwater, Florida.
Lugo also used a counterfeit access device, and also used a
Sam’s Club membership card in Ruiz-Lopez’s name.
Following his arrest on federal charges on May 20, 2014,
separately charged Miguel Perez waived his Miranda rights and
agreed to speak to law enforcement without his lawyer present.
Perez admitted that he and co-conspirators had been
purchasing stolen credit and debit card numbers on VM and
that he had purchased three different card encoders in order to
then encode the information on gift cards. Perez said that he
and the co-conspirators would then use the counterfeit access
devices to purchase gasoline and then resell the gasoline [at a
profit]. Perez estimated that he made about $800 dollars a week
from the card scheme, and that he would encode approximately
two to three cards a week.
Following his arrest on December 17, 2014, Justin Lugo
waived his Miranda rights and spoke to law enforcement. Lugo
told law enforcement personnel that he performed credit/debit
card fraud on multiple occasions. Lugo said that on multiple
occasions, Perez and/or Ruis-Lopez supplied him with 5–7
counterfeit credit/debit cards at a time, and that Lugo would
drive a white pick-up truck outfitted with a bladder to area gas
stations and fill the tank and the bladder of the truck up using
the counterfeit credit and debit cards. Lugo said that he would
then return the truck with the stolen gas to Perez’s residence in
order to off-load the gas and that then he would repeat the
process of purchasing stolen gas. Lugo said that Perez paid
Lugo between $50–70 each day, depending on how many trips
he made for gas.
Many of the financial institutions defrauded by this conspiracy
are federally insured. With respect to the credit unions affected,
many of the fraudulent charges were made on cards issued by
Suncoast Schools Federal Credit Union, Altra Federal Credit
Union, and Navy Federal Credit Union. The deposits of federal
credit unions are insured federally by the National Credit
Union Share Insurance Fund. In addition, there were
fraudulent charges as part of the scheme on cards issued by
Wells Fargo Bank, Wachovia Bank, and Bank of America,
among others. The deposits of those banks are federally insured
by the Federal Deposit Insurance Corporation.
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GROUNDS
Ruiz-Lopez alleges four grounds of ineffective assistance of counsel. The first
three grounds involve the calculation of the sentence. The fourth ground alleges that
counsel was ineffective for not meeting with him “to discuss movant’s desire to
appeal the sentence.” (Doc. 1 at 8)
Sentence:
Ruiz-Lopez alleges that counsel was ineffective for not arguing against (1) a
two-level enhancement for the possession of device making equipment (Ground
One), (2) a two-level enhancement because part of the scheme was committed from
outside of the United States (Ground Two), and (3) a two-level enhancement because
the scheme involved money laundering (Ground Three). Ruiz-Lopez waived each
claim. Ruiz-Lopez’s conviction is based on a negotiated plea, in which he expressly
waived the right to appeal his sentence (Doc. 64 at 15):
The defendant agrees that this Court has jurisdiction and
authority to impose any sentence up to the statutory maximum
and expressly waives the right to appeal defendant’s sentence
on any ground, including the ground that the Court erred in
determining the applicable guidelines range pursuant to the
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;
provided, however, that if the government exercises its right to
appeal the sentence imposed, as authorized by 18 U.S.C.
§ 3742(b), then the defendant is released from his waiver and
may appeal the sentence as authorized by 18 U.S.C. § 3742(a).

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Ruiz-Lopez’s sentence of seventy months is both below the guidelines range of
97–121 months and neither an upward departure nor above the statutorily authorized
maximum sentence of thirty years. Consequently, the waiver of the right to
challenge the guidelines sentence controls and, as Williams v. United States, 396 F.3d
1340, 1342 (11th Cir.), cert. denied 546 U.S. 902 (2005), explains, the appeal waiver
precludes a claim of ineffective assistance of counsel at sentencing:
[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. [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.

Even if not waived, Ruiz-Lopez’s ineffective assistance of counsel claims are
meritless. Ruiz-Lopez pleaded guilty to participating in a conspiracy, and as a
consequence, each two-level enhancement was properly assessed because he is
responsible for his co-conspirators’ acts that were committed in furtherance of the
conspiracy.
Appeal:
In Ground Four Ruiz-Lopez faults counsel not meeting with him to discuss
whether to appeal. The analysis of Ruiz-Lopez’s claim is principally controlled by
Roe v. Flores-Ortega, 528 U.S. 470, 476–77 (2000), and Otero v. United States, 499 F.3d
1267 (11th Cir. 2007). Ruiz-Lopez claims that his defense counsel was ineffective for
not consulting him about appealing. Strickland governs a claim that counsel was

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ineffective for not appealing. Roe v. Flores-Ortega, 528 U.S. at 476–77. Flores-Ortega
recognizes three categories of claims: (1) counsel fails to appeal even though the
defendant unquestionably expresses his desire to appeal,3 (2) the defendant faults
counsel for not appealing even though the defendant directed counsel not to appeal,4
and (3) the defendant’s desire to appeal is not clearly expressed.5
In his motion to vacate Ruiz-Lopez alleges that counsel should have known
that he wanted to appeal even though he did not expressly direct counsel to appeal.
Consequently, Ruiz-Lopez’s allegation falls into Flores-Ortega’s third category, in
which the defendant’s desire to appeal was not clearly expressed. Flores-Ortega, 528
U.S. at 478, suggests how to proceed:
In those cases where the defendant neither instructs counsel to
file an appeal nor asks that an appeal not be taken, we believe
the question whether counsel has performed deficiently by not
filing a notice of appeal is best answered by first asking a
separate, but antecedent, question: whether counsel in fact
consulted with the defendant about an appeal. We employ the
term “consult” to convey a specific meaning — advising the
defendant about the advantages and disadvantages of taking an
appeal, and making a reasonable effort to discover the
defendant’s wishes. If counsel has consulted with the
defendant, the question of deficient performance is easily
answered: Counsel performs in a professionally unreasonable
manner only by failing to follow the defendant’s express

Roe v. Flores-Ortega, 528 U.S. at 477 (“[A] defendant who instructs counsel to initiate an
appeal reasonably relies upon counsel to file the necessary notice. Counsel’s failure to do so cannot
be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure
to file reflects inattention to the defendant’s wishes.”).
3

Roe v. Flores-Ortega, 528 U.S. at 477. (“At the other end of the spectrum, a defendant who
explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his
instructions, his counsel performed deficiently.”).
4

Roe v. Flores-Ortega, 528 U.S. at 477 (“Is counsel deficient for not filing a notice of appeal
when the defendant has not clearly conveyed his wishes one way or the other?” ).
5

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instructions with respect to an appeal. . . . If counsel has not
consulted with the defendant, the court must in turn ask a
second, and subsidiary, question: whether counsel’s failure to
consult with the defendant itself constitutes deficient
performance. That question lies at the heart of this case: Under
what circumstances does counsel have an obligation to consult
with the defendant about an appeal?

Based on Ruiz-Lopez’s allegation, “the heart of this case” is whether “counsel ha[d]
an obligation to consult with [Ruiz-Lopez] about an appeal.”
Consulting a client about appealing is not constitutionally required in every
case. “We cannot say, as a constitutional matter, that in every case counsel’s failure to
consult with the defendant about an appeal is necessarily unreasonable, and therefore
deficient.” Roe v. Flores-Ortega, 528 U.S. at 479 (italics original). See also Otero v.
United States, 499 F.3d at 1270 (“A criminal defense lawyer is not under a per se
constitutional obligation to consult with his or her client about an appeal. In some
cases, the Sixth Amendment requires such consultation; in others, it does not.”).
Flores-Ortega, 528 U.S. at 480, identifies two situations where counsel is
constitutionally required to consult the client about appealing.
[C]ounsel has a constitutionally imposed duty to consult with
the defendant about an appeal when there is reason to think
either (1) that a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for appeal), or
(2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing. In making this
determination, courts must take into account all the
information counsel knew or should have known.

As pertinent to the present action, the second situation is easily resolved
because Ruiz-Lopez does not allege that he expressed an interest in appealing. The
linchpin to the present action is the first situation identified in Flores-Ortega,
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specifically, would a rational defendant want to appeal. A “highly relevant factor”
for consideration is, as Flores-Ortega, 528 U.S. at 480, states, whether the defendant
pleaded guilty and waived his appellate rights.
Although not determinative, a highly relevant factor in this
inquiry will be whether the conviction follows a trial or a guilty
plea, both because a guilty plea reduces the scope of potentially
appealable issues and because such a plea may indicate that the
defendant seeks an end to judicial proceedings. Even in cases
when the defendant pleads guilty, the court must consider such
factors as whether the defendant received the sentence
bargained for as part of the plea and whether the plea expressly
reserved or waived some or all appeal rights.

Ruiz-Lopez received a favorable sentence, specifically, a three-level reduction for
acceptance of responsibility and an additional three-level reduction under Section
5.K1.1, United States Sentence Guidelines. After the six-level reduction, the district
court imposed concurrent sentences of seventy months, which is the bottom of the
applicable advisory guideline range.
The circumstances of Ruiz-Lopez’s plea are factually distinguishable from
Flores-Ortega, which involved neither a plea agreement nor an appellate waiver. As a
consequence, trial counsel had a constitutionally imposed duty to ascertain the
defendant’s wishes because Flores-Ortega had expressed an interest in appealing.
Instead, the circumstances of Ruiz-Lopez’s plea is factually indistinguishable from
Otero v. United States, 499 F.3d 1267 (11th Cir. 2007). First, Otero’s plea agreement
contained an appeal waiver identical to Ruiz-Lopez’s.6 Second, the Magistrate Judge

Both Otero’s and Ruiz-Lopez’s prosecutions originated in the Tampa Division of the
Middle District of Florida.
6

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ensured that Otero understood the appeal waiver when Ruiz-Lopez pleaded guilty.
Third, accepting Ruiz-Lopez’s allegation as true, no additional consultation on the
topic occurred after the imposition of sentence. Otero assumed that counsel’s failure
to consult with Otero after the imposition of sentence was a violation of FloresOrtega’s consultation requirement, but “conclude[d] that Otero’s trial lawyer had no
constitutional duty to consult Otero about an appeal and thus did not render
constitutionally ineffective assistance by failing to do so.” Otero, 499 F.3d at 1269.
This conclusion was because “under the circumstances of this case, [there was] no
constitutional duty to consult in the first place.” Otero, 499 F.3d at 1269 n.1. The
plea agreement and the appeal waiver weigh heavily in the government’s favor, as
Otero, 499 F.3d at 1271, explains:
In answering the question of whether a rational defendant
would want to appeal his sentence, it is relevant to ask whether
there are any potential non-frivolous grounds for appeal,
whether there was a guilty plea, and whether the plea expressly
waived the right to appeal. See Flores-Ortega, id. at 480,
120 S. Ct. at 1036. All those factors weigh heavily in favor of
the government in this case. The plea agreement signed by
Otero contained a typical appeal-waiver provision, pursuant to
which Otero “expressly waived the right to appeal his sentence,
directly or collaterally, on any ground.” This broad waiver
contained four exceptions. Those exceptions allowed Otero to
appeal (1) “an upward departure by the sentencing judge,”
(2) “a sentence above the statutory maximum,” (3) “a sentence
in violation of the law apart from sentencing guidelines,” or
(4) any sentence if the Government appealed. Otero does not
argue that any of these exceptions apply in this case. Therefore,
on account of the plea agreement’s broad appeal waiver, any
appeal taken by Otero would have been frivolous and would
have been an appeal that no rational defendant would have
taken.

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Considering the similarity with Otero, Ruiz-Lopez’s claim fails “[b]ecause no
rational defendant in [his] position would have sought to appeal in light of the broad
appeal waiver and because [he] did not communicate to his lawyer a desire to appeal,
[his] lawyer was not under a constitutional obligation to consult [him] about an
appeal.” Otero, 499 F.3d at 1271. See also Devine v. United States, 520 F.3d 1286,
1288–89 (11th Cir. 2008) (affirming the district court’s determination that “no
rational defendant would want to appeal” because the sentence “was at the bottom of
the guidelines” and the defendant’s plea agreement included the standard appeal
waiver); Cuero v. United States, 269 Fed. App’x 893, 895 (11th Cir. 2008) (“[E]ven if
counsel insufficiently consulted with Cuero, it did not amount to ineffective
assistance of counsel” because “trial counsel did not have a constitutional duty to
consult with Cuero about an appeal.”).
Ruiz-Lopez thoroughly discussed the waiving of his appellate rights when he
pleaded guilty (audio recording at Doc. 76), and he does not assert to having
expressed to his counsel an interest in appealing. No rational defendant would want
to appeal after having waived his right to appeal and possibly risk losing a three-level
reduction for accepting responsibility, a three-level reduction for cooperating, and a
sentence at the bottom of the guidelines range. Based on these facts and the analysis
in Otero, Ruiz-Lopez’s defense counsel had no constitutional obligation after the
sentencing to consult Ruiz-Lopez about an appeal.
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The clerk must enter a judgment against Ruiz-Lopez and close this case.
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DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Ruiz-Lopez is not entitled to a certificate of appealability (“COA”). A
prisoner moving under Section 2255 has no absolute entitlement to appeal a district
court’s denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue 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 certificate of appealability, Ruiz-Lopez 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, Ruiz-Lopez is entitled to neither a certificate of
appealability nor an appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Ruiz-Lopez must obtain permission from the circuit
court to appeal in forma pauperis.
ORDERED in Tampa, Florida, on June 5, 2017.

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