Curiel-Gomez v. United States of America

Filing 7

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment against Petitioner in the civil case and then to close that case. Signed by Judge Susan C Bucklew on 7/12/2017. (GAG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NADIN JOSE CURIEL-GOMEZ

v.

Case Nos. 8:17-cv-595 T-24 AEP
8:13-cr-89 T-24 AEP

UNITED STATES OF AMERICA
______________________________/
ORDER
This cause comes before the Court on Petitioner Nadin Jose Curiel-Gomez’s motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, as well as a supporting
memorandum. (Civ. Docs. 1, 2). The Government filed a response in opposition, and Petitioner
filed a reply. (Civ. Docs. 5, 6). Upon review, the Court denies Petitioner’s § 2255 motion.
I.

Background

On September 30, 2014, Petitioner pleaded guilty, pursuant to a plea agreement, to one
count of conspiracy to possess with intent to distribute five kilograms or more of cocaine while
on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§
70503(a), 70506(a) and (b), and 21 U.S.C. § 960(b)(1)(B)(ii). (Crim. Docs 28, 33). The plea
agreement states that this offense requires a mandatory minimum term of imprisonment of ten
years. (Crim. Doc. 33, pp. 1–2). Pursuant to the plea agreement, Petitioner agreed to “cooperate
fully with the United States in the investigation and prosecution of other persons.” (Crim Doc.
33, pp. 4–5). If this cooperation was completed prior to sentencing, the Government agreed “to
consider whether such cooperation qualifies as ‘substantial assistance’ in accordance with the
policy of the United States Attorney for the Middle District of Florida, warranting the filing of a
motion at the time of sentencing recommending (1) a downward departure from the applicable

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guideline range pursuant to USSG §5K1.1, or (2) the imposition of a sentence below a statutory
minimum, if any, pursuant to 18 U.S.C. § 3553(e), or (3) both.” (Crim Doc. 33, p. 5) (emphasis
added). The plea agreement further states that Petitioner “understands that the determination as
to whether ‘substantial assistance’ has been provided or what type of motion related thereto will
be filed, if any, rests solely with the United States Attorney for the Middle District of Florida,
and the defendant agrees that defendant cannot and will not challenge that determination,
whether by appeal, collateral attack, or otherwise.” (Crim. Doc. 33, p. 5).
During his change of plea hearing, the Magistrate Judge thoroughly reviewed the
provisions in Petitioner’s plea agreement regarding a potential §5K1.1 motion. (Crim. Doc. 52,
pp.18–20). Petitioner acknowledged that he understood these terms in his plea agreement. (Crim.
Doc. 52, pp. 18–20). Petitioner further stated that he was satisfied with the advice and
representation he received from his counsel (Crim. Doc. 52, p. 11), and understood he faced a
mandatory-minimum term of imprisonment of ten years (Crim. Doc. 52, pp. 23–24).
The Magistrate Judge also asked Petitioner whether his attorney had discussed the
Sentencing Guidelines with him. (Crim. Doc. 52, p. 25). Specifically, the Magistrate Judge
stressed that no one—including Petitioner’s attorney—could predict with any certainty what
Petitioner’s advisory guideline range would be; Petitioner said that he understood (Crim. Doc.
52, pp. 25–26). The Magistrate Judge explicitly stated that if Petitioner had attempted to estimate
a guideline range and that estimate was proven wrong, Petitioner could not later complain and
ask to withdraw from his plea; Petitioner said that he understood. (Crim. Doc. 52, pp. 26–27).
Finally, the Magistrate Judge clearly explained that the Sentencing Guidelines are advisory and
not binding on the Court; Petitioner said that he understood. (Crim. Doc. 52, p. 27).

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On January 8, 2015, the Court sentenced Petitioner to 120 months’ imprisonment, the
statutory mandatory minimum, and five years’ supervised release. (Crim. Doc. 40). There was
considerable discussion at sentencing that while Petitioner cooperated with the Government, the
Government had already received the provided information and therefore a §5K1.1 motion was
not filed. (Crim. Doc. 47, p. 9–11, 14–16).
Petitioner’s appeal was dismissed pursuant to the waiver in his plea agreement. (Crim.
Doc. 55). On March 13, 2017, Petitioner filed the instant, timely §2255 motion. (Civ. Doc. 1).
II.

Discussion

Petitioner raises four grounds for relief in his § 2255 motion. In Ground One, Petitioner
argues that the Government breached the plea agreement by failing to file a USSG §5K1.1
motion. In Grounds Two and Four, Petitioner argues that his counsel was ineffective by
conceding to a sentence at the statutory mandatory minimum and by failing argue for a minorrole reduction. In Ground Three, Petitioner contends that his guilty plea was not knowing and
voluntary. For the reasons that follow, Petitioner’s arguments are refuted by his sworn statements
or are otherwise without merit.
A. Ground One: Breach of Plea Agreement
Petitioner first argues that the Government breached the plea agreement by failing to file
a §5K1.1 substantial assistance motion. The Government’s decision to make or withhold a
§5K1.1 motion under the United States Sentencing Guidelines or a Rule 35(b) motion under the
Federal Rules of Criminal Procedure is discretionary. This Court does not have the authority to
review a prosecutor’s refusal to file a motion for substantial assistance unless the Defendant
makes a substantial showing that the prosecutor had an unconstitutional motive for refusing to

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file the motion. See United States v. Forney, 9 F.3d 1492, 1502–03 (11th Cir.1993) (citing Wade
v. United States, 504 U.S. 181, 184–85(1992)). Petitioner has made no such showing.
Moreover, the plea agreement itself does not contain any assurances or promises that the
Government would file a §5K1.1 motion. (See Crim. Doc. 33). Instead, the signed plea
agreement is clear that the Government would “agree to consider” filing such a motion, that the
decision to file such a motion was a possibility left to the sole discretion of the Government, and
that Petitioner could not challenge the Government’s decision whether by appeal, collateral
attack, or otherwise. (Crim. Doc. 33, p. 4–5). After the Magistrate Judge went over this part of
the plea agreement with Petitioner at his change of plea hearing, Petitioner indicated that he
understood and had no questions. (See Crim. Doc. 52, p. 18–20). At sentencing, counsel for the
Government indicated that while Petitioner did cooperate, his cooperation was insufficient to
warrant a § 5K1.1 motion. (Crim. Doc. 47, p. 9–11, 14–16). Accordingly, it is clear that the
Government fulfilled its obligations under the plea agreement, and Petitioner is not entitled to
relief under Ground One of his § 2255 motion.
B. Grounds Two and Four: Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court created a twopart test for determining whether a defendant received ineffective assistance of counsel. First, a
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. See id.

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To succeed on an ineffective-assistance-of-counsel claim, “the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. The
reasonableness of an attorney’s performance must be evaluated from counsel’s perspective at the
time of the alleged error and in light of all the circumstances. See id. at 690. The movant carries a
heavy burden, as reviewing courts “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action might be
considered a sound trial strategy.” Id. at 689 (citation and internal quotation marks omitted).
Simply showing that counsel erred is insufficient. See id. at 691. Instead, the defects in
counsel’s performance must be prejudicial to the defense. See id. at 692. Therefore, a movant
must establish that there was a reasonable probability that the results would have been different
but for counsel’s deficient performance. See id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
I.

Ground Two: Ineffective Assistance of Counsel for Conceding
to Mandatory Minimum Sentence

Petitioner argues that his counsel was ineffective because he conceded to a 120-month
statutory mandatory sentence despite the safety valve provision of USSG §5C1.2. However, the
safety valve provision allows a sentence below the mandatory minimum only if the defendant is
charged with an offense under 21 U.S.C. §§ 841, 844, 846, 960, or 963. See USSG §5C1.2(a).
Because Petitioner was charged with violating 46 U.S.C. §§ 70503(a) and 70506(a)–(b), the
safety valve did not apply. 1 Petitioner’s counsel was not ineffective for failing to argue for relief
to which Petitioner was not entitled.

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While the Title 46 offenses for which Petitioner was charged reference the penalty provisions of 21 U.S.C. § 960,
this does not entitle Petitioner to relief as the safety valve applies to “offenses under” section 960—not “offenses
penalized under” section 960. See United States v. Pertuz-Pertuz, 679 F.3d 1327, 1329 (11th Cir. 2012).

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In his reply, Petitioner appears to concede that he was not entitled to safety valve relief.
Instead, he argues that his Fifth Amendment right to equal protection was violated due to the
unavailability of such relief for the Title 46 offenses for which he was charged. But Petitioner
does not allege that the safety valve provision singles out a suspect class or impinges on a
fundamental right, and his argument that that there is no rational basis for the limited application
of the safety valve provision is wholly without merit. Accordingly, Petitioner is not entitled to
relief under Ground Two of his § 2255 motion.
II.

Ground Four: Ineffective Assistance of Counsel for Failure to
Argue for Minor-Role Reduction

Petitioner asserts that his counsel provided ineffective assistance by failing to argue at
sentencing that Petitioner was entitled to a minor-role reduction pursuant to USSG §3B1.2(b).
While Petitioner is correct that his counsel did not argue for a minor-role reduction, he ignores
the fact that a minor-role reduction would not have reduced his sentence below the mandatory
minimum. See United States v. Castaing–Sosa, 530 F.3d 1358, 1360 (11th Cir. 2008) (“It is wellsettled that a district court is not authorized to sentence a defendant below the statutory
mandatory minimum unless the government filed a substantial assistance motion pursuant to 18
U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 or the defendant falls within the safety-valve of 18
U.S.C. § 3553(f).”). Thus, Petitioner’s counsel was not ineffective for failing to argue for a
minor-role reduction which would not have had the effect of reducing Petitioner’s sentence. In
any event, Petitioner fails to develop this argument as he fails to argue why he was less culpable
than other participants. Accordingly, Petitioner is not entitled to relief under Ground Four of his
§ 2255 motion.

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C. Ground III: Involuntary Plea
Petitioner argues that his counsel misrepresented his sentencing exposure by assuring
Petitioner that the Government would make a §5K1.1 substantial assistance motion, allowing a
sentence below the mandatory minimum, if Petitioner accepted the Government’s plea
agreement. Because of this, Petitioner contends that his plea was not knowing and voluntary and
must, therefore, be vacated.
But as discussed above, the Magistrate Judge at Petitioner’s change of plea hearing
thoroughly discussed with Petitioner that the decision as to whether to file a §5K1.1 motion was
left solely to the discretion of the Government and there was no guarantee one would be filed.
(Crim. Doc. 52, pp. 18–20). Petitioner confirmed he understood. (Crim. Doc. 52, p. 20).
Moreover, the Magistrate Judge stressed: (1) that no one—including Petitioner’s attorney—could
predict with any certainty what Petitioner’s advisory guideline range would be; (2) that if
Petitioner had attempted to estimate a guideline range and that estimate was proven wrong,
Petitioner could not later complain and ask to withdraw from his plea; and (3) that the
Sentencing Guidelines are advisory and not binding on the Court. (Crim. Doc. 33, pp. 25–27). In
each instance, Petitioner said he understood. (Crim. Doc. 33, pp. 25–27).
“There is a strong presumption that statements made during the plea colloquy are true,”
and Petitioner “bears a heavy burden to show that his statements under oath were false.” Patel v.
United States, 252 F. App’x 970, 975 (11th Cir. 2007) (per curiam) (citation omitted). Petitioner
has not meet this heavy burden, and the record negates his claim that his plea was not willing and

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voluntary. Accordingly, Petitioner is not entitled to relief under Ground Three of his § 2255
motion. 2
D. Request for Evidentiary Hearing
Petitioner requests an evidentiary hearing on his § 2255 motion. He is not entitled to an
evidentiary hearing, nor is there any need for one in this case. Petitioner bears the burden of
establishing the need for an evidentiary hearing. Birt v. Montgomery, 725 F.2d 587, 591 (11th
Cir. 1984). In deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief. Chavez v. Sec’y Fla. Dep’t of
Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “That means that if a habeas petition does not
allege enough specific facts that, if they were true, would warrant relief, the petitioner is not
entitled to an evidentiary hearing.” Id. Here, the allegations in Petitioner’s § 2255 motion lack
merit, and he is not entitled to an evidentiary hearing.
III.

Conclusion

Accordingly, it is ORDERED AND ADJUDGED that Petitioner’s § 2255 motion is
DENIED. The Clerk is directed to enter judgment against Petitioner in the civil case and then to
close that case.

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Furthermore, Petitioner waived any challenge to his guilty plea by failing to object within 14 days to the
Magistrate Judge’s Report and Recommendation that the Court accept Petitioner’s guilty plea. See Fed. R. Crim. P.
59(b)(2).

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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 motion to vacate has no absolute entitlement to appeal a
district court’s final order in a proceeding under section 2255. 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 12th day of July, 2017.

Copies to:
Counsel of Record
Pro Se Petitioner

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