Caceres v. United States of America

Filing 8

ORDER denying habeas petition. No certificate of appealability issued. Signed by Judge Robert N. Scola, Jr. on 4/30/2015. (rss)

United States District Court
for the
Southern District of Florida
Ana Caceres, Petitioner
v.
United States of America,
Respondent

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Civil Action No. 14-61607-Civ-Scola
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Order Denying Habeas Petition
Petitioner Ana Caceres filed a 28 U.S.C. § 2255 petition for writ of habeas
corpus. (ECF No. 1.) After reviewing the record, the petition, and the relevant
legal authority, the Court finds that Caceres was not denied effective assistance
of counsel. Thus the Court denies the petition. The Court also denies
Caceres’s request for an evidentiary hearing.
A. Background
Petitioner Ana Zoila Caceres was named in a 42-count indictment on
June 28, 2011 in the criminal case 11-cr-60147-RNS. (Pet. 2, ECF No. 1.)
Caceres did not enter a stipulated factual proffer—rather the Government set
forth the essential facts during Caceres’s change of plea hearing. (Hear’g
Trans. 17:14–19; No. 11-cr-60147, ECF No. 215). The following factual
background is derived from the Indictment—to which Caceres agreed to plead
guilty in her Plea Agreement—and the stipulated factual proffer in her codefendant’s case. (No. 11-cr-60147, ECF No. 141.) For purposes of habeas
analysis, the Court relies only on the Indictment and the transcripts from
Caceres’s plea and sentencing hearings.
Caceres was a director of the Seamens Harvest Ministries Organization,
Inc., an organization that purportedly provided immigration consulting and
services to the general public. (Plea Agmt. ¶6, No. 11-cr-60147, ECF No. 143.)
Seamens Harvest Ministries prepared and filed applications for immigration
benefits on behalf of aliens. (Id.) Aliens became members of the organization
and made donations in exchange for immigration applications and
documentation that a Seamens Harvest Ministries’ employees purportedly filled
out and filed on the alien’s behalf. (Stip. Proffer 2, No. 11-cr-60147, ECF No.
141.) Caceres’s co-defendants convinced aliens that they could obtain lawful
immigration status once Seamens Harvest Ministries designated them as

religious workers and filed paperwork with the United States Citizenship and
Immigration Services (USCIS). (Id.)
After the aliens donated to Seamens Harvest Ministries, Seamens
Harvest prepared false, fictitious, and fraudulent I-360 petitions and
supporting documentation stating that the members were entitled to lawful
immigration status as religious workers. (Id. 2–3.) More than 1,400 petitions
were sent to USCIS by mail. (Id.) Seamens Harvest received notice from USCIS
that the applications were denied but did not inform the aliens and instead told
them to continue working with Seamens Harvest Ministries. Seamens Harvest
filed additional applications when aliens began questioning their status. (Id.
5.) Seamens Harvest fraudulently procured more than $4,000,000 from
hopeful aliens who ultimately faced consequences of being in the United States
illegally.
After her son, who worked for Seamens Harvest alongside Caceres and
Caceres’s husband, felt remorse and went to authorities, Caceres was charged
by Indictment with conspiracy to encourage and induce aliens to reside in the
United States (Count 1); encouraging and inducing aliens to reside in the
United States (Counts 2–7; 9–11); conspiracy to make a false statement to a
federal agency (Count 14); making false statements to a federal agency (Counts
15–23); conspiracy to commit mail fraud (Count 28); and mail fraud (Counts
29–42). (Indictment, No. 11-cr-60147 ECF No. 3.) On May 16, 2012 Caceres
entered into a Plea Agreement with the Government and pled guilty during a
plea colloquy. (See No. 11-cr-60147 Plea Agreement ECF No. 143; Transcript
Plea Colloquy, ECF No. 215.)
After the Court found Caceres fully competent and capable of entering
into an informed plea, and that her plea of guilty was knowing and voluntary,
the Court accepted the plea of guilty and adjudicated her guilty of the charges
in Counts 1 and 28. (Transcript Plea Colloquy 19:4–14, No. 11-cr-60147 ECF
No. 215.) Caceres was sentenced to 96 months in prison and three years
supervised release. (Transcript Sentenc’g 36:19–21, No. 11-cr-60147 ECF No.
216.) After sentencing, the Government moved to dismiss Counts 2 through
11, 14 through 23, and 29 through 42 of the Indictment.
(Transcript
Sentencing 38:13–21, No. 11-cr-60147 ECF No. 216.) The Court granted the
motion.
Caceres now petitions the Court to vacate her sentence under 28 U.S.C.
§ 2255, or at a minimum, hold an evidentiary hearing on her constitutional
claims for relief. In her petition, Caceres claims that her counsel was
ineffective for failing to investigate and adequately advise Caceres before she
entered into a plea and was ineffective during sentencing

B. Legal Standard
Ineffective assistance of counsel claims are evaluated using a two-prong
test. Strickland v. Washington, 466 U.S. 668 (1986). First, the petitioner must
show that counsel’s performance was deficient, and second, the petitioner
must show that counsel’s deficient performance prejudiced the defense. Id. at
691. To prove deficient performance, the defendant must show that counsel’s
errors were so serious that counsel was not functioning as counsel guaranteed
by the Sixth Amendment. To prove prejudice due to deficient performance, the
defendant must show that counsel’s errors were so serious as to deprive the
defendant of a fair trial. Id. Petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. The two prong
test places a burden on the petitioner to show that his counsel’s errors were so
serious that the petitioner was deprived of a fair trial, meaning a trial whose
result is reliable. Id. at 687. Unless Caceres can prove both prongs, the Court
cannot find that the conviction “resulted from a breakdown in the adversary
process that renders the result unreliable.” Id.
Moreover, “[j]udicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction,” and “it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.” Id. A court “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 sound trial strategy.” See Michel v. Louisiana, 350
U.S. 91, 101 (1955).
The test is not what the best lawyers would have done but whether a
reasonable lawyer could have acted in the circumstances as petitioner’s
counsel acted. Dingle, 480 F.3d at 1099; Williamson v. Moore, 221 F.3d 1177,
1180 (11th Cir. 2000). Even if a decision seems unwise in retrospect, it will
only be held to have been ineffective assistance if it was “so patently
unreasonable that no competent attorney would have chosen it.” Dingle, 480
F.3d at 1099.
C. Caceres fails to sufficiently prove or support her claims of
ineffective assistance of counsel.
Caceres claims she was denied her right to effective counsel as
guaranteed by the Sixth Amendment because her attorney failed to adequately

investigate her case and advise her. This general failure, Caceres alleges,
resulted in ineffective assistance during her plea and during sentencing.
1. Caceres’s plea was knowing, intelligent, and voluntary.
Caceres claims that her plea was defective “because it was premised on
palpably incorrect information.” (Petition 19, ECF No. 1.) But for her counsel’s
ineffective assistance, she argues, she would have not entered a plea and
proceeded to trial. Before a judge can accept a guilty plea, the defendant must
be advised of the various constitutional rights that she waives when she enters
a guilty plea. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Guilty pleas must
be voluntary, knowing, and intelligent and with sufficient awareness of the
relevant circumstances and consequences surrounding the plea. Brady v.
United States, 397 U.S. 742, 748 (1970).
The first prong of Strickland requires that a petitioner show her plea was
not voluntary because she received advice from counsel that was not within the
range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at
56–59. The second prong requires that the petitioner show a reasonable
probability that, but for counsel’s errors, she would have entered a different
plea. Id. If she cannot meet one prong the Court does not need to address the
other prong. Dingle v. Sec’y for Dep’t of Corr’s, 480 F.3d 1092, 1100 (11th Cir.
2007).
A defendant’s sworn answers during a plea colloquy, sworn
representations, as well as representation of his lawyer and the prosecutor,
and any findings by the judge in accepting the plea “constitute a formidable
barrier in any subsequent collateral proceedings.” Blackledge v. Allison, 431
U.S. 63, 73–74 (1977); Untied States v. Medlock, 12 F.3d 185, 187 (11th Cir.
1994).
Caceres argues that her attorney told her she would receive time-served
to induce her to enter a plea. But the record refutes this contention. Caceres’s
Plea Agreement states:
The Defendant also is aware that any estimate of the probable
sentencing range or sentence that the defendant may receive,
whether that estimate comes from the defendant’s attorney, the
government, or the probation office, is a prediction, not a promise,
and is not binding on the government, the probation office or the
Court.
(Plea Agreement ¶11, No. 11-cr-60147, ECF No. 143.)
The Plea
Agreement also includes the statutory maximums for each count—10 years for
Count 1 and 20 years for Count 28. (Id. ¶¶ 4–5.) The Agreement also clearly

states that Caceres’s offense level was subject to a six-level increase because
the offense involved 250 or more victims and an eighteen-level increase
because the relevant amount of loss was more than $2,500,000 but not more
than $7,000,000. (Id. ¶ 10(b)–(c).) Caceres was also warned by the Court that
any estimate of sentencing range she had received from her lawyer or anyone
else was not binding on the Court. (Plea Transcript 12:25–13:5, 11-cr-60141,
ECF No. 215.) Caceres affirmatively stated, under oath, that she understood.
(Id. ¶13:5.)
During her plea colloquy the Court determined that Caceres’s plea was
free from coercion, that she understood the nature of the charges and that she
understood the consequences of her guilty plea, including the potential
sentence. (Plea Transcript 4:2–8:23, No. 11-cr-60147 ECF No. 215); United
States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005).
Caceres argues that habeas relief is appropriate where “the record does
not support the fact that ‘the plea represents a voluntary and intelligent
choice.’” (Petition 25, ECF No.1 (quoting Blalock v. Lockhart, 898 F.2d 1367,
1369 (8th Cir. 1990)). But the record does support a voluntary and intelligent
choice. For example, the Court specifically asked Caceres:
“[Y]ou originally entered a plea of not guilty to the charges in
the Indictment. I want you to understand that you have the
absolute right to continue to plead not guilty; and if you did
you would have the right to have a trial before a judge or jury
at which you would be presumed to be innocent and the
government would have to prove your guilt beyond a
reasonable doubt . . . .”
(Plea Transcript 16:11–17, 11-cr-60147, ECF No. 215.) When asked if
she understood, Caceres answered “Yes, Your Honor.”
(Id. at 17:7.) A
defendant’s sworn representations “constitute a formidable barrier in any
subsequent collateral proceedings.” Blackledge, 431 U.S. at 73–74. Caceres’s
petition does not overcome that barrier. She offers no support for her
allegations. A petitioner must provide factual support for his contentions
regarding counsel’s performance. Smith v. White, 815 F.2d 1401, 1406–07
(11th Cir. 1987). Bare, conclusory allegations of ineffective assistance are
insufficient to satisfy the Strickland test. See Boyd v. Comm’r, Ala. Dep’t of
Corr., 697 F.3d 1320, 1333–34 (11th Cir. 2012); Garcia v. United States, 456 F.
App’x 804, 807 (11th Cir. 2012). Caceres has not shown a reasonable
probability that she was induced to enter her plea, and her allegations are
refuted by the record and by the representations she made under oath.

2. Caceres received effective counseling during sentencing.
Caceres alleges that the Court erred by applying the wrong sentencing
guidelines and relying on erroneous information given by the prosecution
regarding the number of victims and the amount of loss. Caceres also claims
that her attorney failed to investigate the case and failed to provide her with
information and discovery.
a. Caceres’s counsel did not violate Caceres’s constitutional
right to counsel by failing to object to the sentencing
enhancement.
Caceres entered into a negotiated, written plea agreement which included
the loss amount and the number of victims involved in the offense. Now
Caceres claims that her attorney “failed to investigate the appropriate guideline
calculation,” which prejudiced Caceres. (Pet. 33, ECF No. 1.) Caceres claims
that the parties agreed in the plea agreement that “the offense involved 250 or
more victims,” which resulted in a 6 level increase. (Id. 34.) But because the
Government explained during the restitution hearing that they had only
received claims from around 170 victims, Caceres argues that the Government
was unable to substantiate the 250 or more victims which resulted in the six
level increase. That enhancement changed her guidelines range from a 78 to
97 months range to a 97 to 121 months range. (Id. 36.)
The plea Caceres agreed to in open court stated 250 or more victims, a
number she did not contest. Moreover, the fact that only 170 victims came
forward does not mean that the Government is unable to substantiate other
victims. As the Government notes in its Response, there is a difference
“between the provable amount of restitution and the loss attributable to a
defendant’s relevant conduct.” (Resp. 5, ECF No. 6.) Although USCIS received
more than 1,400 applications filed on behalf of aliens by SHM and specifically
identified at least 250 different aliens who submitted applications prepared or
filed by SHM, restitution may only be ordered when there is an identifiable
victim who has suffered physical injury or pecuniary loss. See 18 U.S.C. §
3663A(c)(1)(B); United States v. Hassan, 333 F.3d 1264 (11th Cir. 2003).
When a petitioner alleges a sentencing error, she must demonstrate that
there is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been less harsh due to a reduction in the defendant’s
offense level. Glover v. United States, 531 U.S. 198, 203–04 (2001). Even if her
counsel’s performance was deficient in failing to object to the enhancement—
which Caceres has not proven—she cannot show prejudice. Here, Caceres
received a sentence that is within the very guidelines she argues were

applicable. Thus she is unable to show any prejudice. A sentence within
guidelines limitations does not raise any constitutional or statutory question.
Kett v. United States, 722 F.2d 687, 690 (11th Cir. 1984); Nelson v. United
States, 709 F.2d 39, 40 (11th Cir. 1981).
At the Rule 11 colloquy she acknowledged and understood the terms of
the negotiated, written plea agreement which specifically contained the
enhancements. She cannot demonstrate that either deficient performance or
prejudice arising from her counsel’s failure to object to the enhancements,
since they were agreed to by the Caceres.
And, even if Caceres’s counsel erroneously estimated her guidelines
without the enhancement, an erroneous estimation of the guidelines does not
entitle movant to relief—“an erroneous estimate by counsel as to the length of
sentence” is not “necessarily indicative of ineffective assistance.” Beckaham v.
Wainwright, 639 F.2d 262, 265 (5th Cir. 1981). Even when an attorney
erroneously estimates his client’s potential sentence, the movant must satisfy
the prejudice requirement of Strickland by showing that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59. Instead, during her
plea colloquy, Caceres acknowledged that she was facing a 10 year maximum
sentence as to Count 1 and a 20 year statutory maximum as to Count 28.
(Plea Transcript 13:20–14:5, ECF No. 215.) She also indicated that she
understood the possible sentence she could receive, denied being promised
anything, other than set forth in the written plea agreement and denied being
threatened or otherwise forced to plead guilty. (Id. 15:2–16:10.) A defendant’s
sworn representations, as well as representation of his lawyer and prosecutor
and any findings made by the judge in accepting the plea “constitute a
formidable barrier in any subsequent collateral proceedings.” Blackledge, 431
U.S. at 73–74. Caceres’s self-serving statements that she was misadvised by
counsel regarding her sentence-exposure are conclusory and unsupported in
the record.
Any argument that there is a sentencing disparity between Caceres and
other similarly situated defendants in the Southern District of Florida is
unavailing. The sentence imposed was within the guidelines range, and
accorded with her co-defendant, Alers’s sentence.
b. Caceres fails to show that her counsel conducted an
inadequate investigation.
Counsel in criminal matters have a duty to “conduct a prompt
investigation of the circumstances of the case” and explore facts relevant to the
merits of the case. Rompilla v. Beard, 545 U.S. 374, 385–6 (2005). Caceres

alleges that her attorney failed to conduct an adequate investigation and failed
to “keep her apprised of the Government’s case.” She claims that her attorney
failed to interview any of the witnesses from the Seamens Harvest Ministry. An
independent investigation, she claims, would have revealed that Seamens
Harvest had “schools in Haiti, food distribution centers, and that” it had
received cash and donations. (Pet. 31, ECF No. 1.) And an investigation would
also have “revealed that Seamens Harvest paid millions of dollars to the United
States Government for filing fees on behalf of its members, background checks
etc.” (Id.)
Caceres’s allegations are entirely unsubstantiated.
She offers no
evidence—she does not attach documents or any discovery produced by the
Government. Even if she was unable to locate and produce documents she
could describe the type of documentation, where it was kept and for how long,
and who else might have access to the information. The Court must have
something more than baseless allegations before it can grant relief.
The record shows that defense counsel zealously advocated on behalf of
Caceres—even hiring an expert witness to examine and test Caceres, and
provide mitigating testimony regarding Caceres’s personality. Counsel also
collected letters from family members and her co-defendant and husband,
Alers. (Sentenc’g Transcript 29:1–30:9, ECF No. 216.)
Finally, Caceres fails to show that the Court would have imposed a lesser
sentence or met her burden to show that the sentence was unreasonable in
light of the record. A sentence must be both procedurally and substantively
reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Ellisor, 522 F.3d 1255, 1273 (11th Cir. 2007). The record shows that the Court
considered movant’s statements, the letters, the psychological report, as well as
the advisory guidelines and the statutory factors. In addition, the fact that
Caceres’s 96-month sentence is far below the 20-year statutory maximum she
was facing as to Count 28 is also a strong indication of substantive
reasonableness. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008).
Caceres’s unsupported allegations cannot overcome the strong
presumption that her counsel’s conduct falls within the wide range of
reasonable professional assistance.
D. Evidentiary Hearing
A petitioner has the burden to establish the need for an evidentiary
hearing and is only entitled to a hearing if her allegations, if proved, would
establish her right to collateral relief. Further, a hearing is not required on
patently frivolous claims or those which are based upon unsupported

generalizations or affirmatively contradicted by the record. See Holmes v.
United States, 876 F.2d 1545, 1553 (11th Cir. 1989). Caceres’s claims are both
unsupported and contradicted by her sworn statements during her plea and
sentencing.
E. Certificate of Appealability
The “[C]ourt must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant,” and if a certificate is issued “the
court must state the specific issue or issues that satisfy the showing required
by 28 U.S.C. § 2253(c)(2).” See Rule 11(a), Rules Governing Section 2255
Proceedings for the United States District Courts. A § 2255 petitioner “cannot
take an appeal unless a [] circuit or district judge issues a certificate of
appealability under 28 U.S.C. § 2253(c).” See Fed. R. App. P. 22(b)(1).
A certificate of appealability is only appropriate “if the applicant has
made a substantial showing of the denial of a constitutional right.” See 28
U.S.C. § 2253(c)2). To make a substantial showing of the denial of a
constitutional right, a section 2255 petitioner must demonstrate “that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 336–37 (2003) (internal citations omitted); see also
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Eagle v. Linahan, 279 F.3d 926,
935 (11th Cir. 2001). The Court determines that Caceres failed to demonstrate
that there is a reasonably debatable issue whether she was denied a
constitutional right. See Slack, 529 U.S. at 485. As such, a certificate of
appealability is not warranted in this case.
F. Conclusion
For the reasons explained above, the Court denies Caceres’s petition
because she does not sufficiently support her claims of ineffective assistance of
counsel. The Court denies Caceres’s request for an evidentiary hearing. The
Court declines to issue a certificate of appealability. The Clerk is directed to
close the case. Any pending motions are denied as moot.
Done and ordered in chambers, at Miami, Florida, on April 30, 2015.
_______________________________
Robert N. Scola, Jr.
United States District Judge