Palacios v. USA

Filing 3

Decision and Order granting 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Chief Judge Frances M. Tydingco-Gatewood on 9/13/2013. (fad, )

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DISTRICT COURT OF GUAM
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TERRITORY OF GUAM
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CRIMINAL CASE NO. 91-00103
CIVIL CASE NO. 12-00025

UNITED STATES OF AMERICA,
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Plaintiff-Respondent,
vs.

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ORDER AND OPINION RE:
§ 2255 MOTION

MICHAEL S.N. PALACIOS,

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Defendant-Petitioner.

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Before the court is Defendant-Petitioner Michael S.N. Palacios’s Motion to Vacate, Set

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Aside, or Correct Sentence Under 28 U.S.C. § 2255 (“the Motion” or “§ 2255 Motion”). ECF

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No. 114.1 After reviewing the parties’ briefs, and relevant cases and statutes, the court hereby

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GRANTS the Motion for the reasons stated herein.2

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I.

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FACTUAL AND PROCEDURAL BACKGROUND
On June 3, 1992, Michael S.N. Palacios (“Petitioner”) was sentenced to 180 months

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imprisonment followed by five (5) years of supervised release as an Armed Career Offender in

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violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). On August 4, 2004, Petitioner began serving

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For ease of reference, all ECF numbers referred to herein correspond to Criminal Case No. 91-00103 unless
otherwise noted.
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Petitioner moves to vacate his sentence on the following grounds: (1) the court unlawfully lengthened the term of
incarceration to promote Petitioner’s rehabilitative needs; (2) ineffective assistance of counsel; and (3) the court
failed to adequately explain its reasons for departing from the guideline range. The court grants the Motion based on
the first ground for relief.

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his term of supervised release.
On November 21, 2006, the United States Probation Office filed a report, informing the

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court that Petitioner was noncompliant with his conditions of supervised release. See ECF No.

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45. Thereafter, the Probation Office filed multiple reports and declarations with the court,

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documenting Petitioner’s noncompliance with the conditions of his supervised release. See ECF

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Nos. 46, 47, 58, 60, and 61. On March 31, 2010, the court revoked supervised release and

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sentenced Petitioner to time served, which was approximately seven months, and fifty-three (53)

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months of supervised release. See ECF No. 90.
On November 7, 2011, the Probation Office filed a Petition for Revocation of Supervised

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Release. See ECF No. 102. In the Supporting Declaration, the Probation Officer alleged that

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Petitioner tested positive for the use of methamphetamine on two separate occasions, failed to

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show for drug testing and drug treatment counseling sessions on numerous occasions, and failed

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to show for scheduled mental health treatment sessions in addition to failing to report to the

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Probation Office and filing mandatory written reports. Id. The violations were categorized as

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Grade C. Petitioner’s criminal history category was IV. The sentencing guideline range for

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imprisonment was 6–12 months, and the guideline range for supervised release following release

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from imprisonment was 41–47 months. See ECF No. 102-2. However, because Petitioner’s

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conviction was for a Class A felony, the court could impose up to sixty (60) months

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imprisonment pursuant to 18 U.S.C. § 3583(e)(3).
On December 14, 2011, Petitioner was sentenced to fifty-three (53) months incarceration

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with credit for time served in detention. This was the maximum imprisonment term under the

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violation scheme,3 which precluded imposition of a period of supervised release thereafter.

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On October 15, 2012, Petitioner filed the instant 2255 Motion. ECF No. 114. The

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With credit for time previously served on post-release supervision.

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Government filed its Answer on March 8, 2013. ECF No. 117. Petitioner filed a Response on

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July 3, 2013. ECF No. 127.

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II.

DISCUSSION

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A prisoner in custody may bring a motion to attack his sentence under 28 U.S.C. § 2255

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by demonstrating “that the sentence was imposed in violation of the Constitution or laws of the

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United States, or that the court was without jurisdiction to impose such sentence, or that the

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sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral

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attack.” 28 U.S.C. § 2255(a).

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In the Motion, Petitioner claims two grounds upon which his sentence is invalid: (1) the

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court lengthened the term of incarceration to promote Petitioner’s rehabilitative needs in

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contravention of the Supreme Court’s decision in Tapia v. United States, 131 S. Ct. 2382 (2011);

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and (2) ineffective assistance of counsel. Pet’r’s Mot. at 5–6, ECF No. 114. In the Reply,

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Petitioner proffers an additional argument that the sentence was invalid because the court failed

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to adequately set forth its reasons for departing from the guideline range. Pet’r’s Reply at 3–13,

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ECF No. 127. Given that the court finds Petitioner’s need for rehabilitation was unlawfully

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considered in imposing the sentence, the court will not address Petitioner’s third ground for

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relief, which was not included in the original Motion.

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A. CONSIDERATION OF REHABILITATION IN SENTENCING

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Petitioner’s first claim is that the court unlawfully lengthened his sentence to promote his

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rehabilitation. See Pet’r’s Resp. at 13–15, ECF No. 127.

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In Tapia v. United States, the Supreme Court held that the Sentencing Reform Act, 18

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U.S.C. § 3582(a), “precludes sentencing courts from imposing or lengthening a prison term to

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promote an offender’s rehabilitation” or “because the court thinks an offender will benefit from a

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prison treatment program.” 131 S. Ct. at 2391, 2392. However, the Court noted that “[a] court
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commits no error by discussing the opportunities for rehabilitation within prison or the benefits

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of specific treatment or training programs.” Id. at 2392. Although Tapia involved imprisonment

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at initial sentencing, the Ninth Circuit held that Tapia also applies to imprisonment upon

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revocation of supervised release. United States v. Grant, 664 F.3d 276 (9th Cir. 2011).
Here, the record indicates that the court considered Petitioner’s need for rehabilitation

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and other correctional treatment in imposing the sentence. See Sentencing Tr. 44:2–7. Sentencing

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Tr. 44:2–7, December 14, 2011, ECF No. 124. Accordingly, this claim is GRANTED.

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B. INEFFECTIVE ASSISTANCE OF COUNSEL

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Petitioner’s second claim is that he suffered ineffective assistance of counsel in violation

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of his Sixth Amendment right to counsel. To succeed on such a claim, Petitioner must establish:

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(1) that counsel’s conduct was deficient, and (2) that such deficiency prejudiced his defense.

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Strickland v. Washington, 466 U.S. 668, 693 (1986). To demonstrate deficiency by counsel,

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Petitioner “must show that counsel’s representation fell below an objective standard of

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reasonableness.” Id. at 688. Then Petitioner “must show that there is a reasonable probability

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that, but for counsel’s unprofessional errors, the result of the proceeding would have been

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different. A reasonable probability is a probability sufficient to undermine confidence in the

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outcome.” Id. at 694.
Petitioner argues that he suffered ineffective assistance because defense counsel was

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unaware of the Tapia decision, which was issued approximately six months prior to Petitioner’s

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sentencing. See Pet’r’s Mot. at 6; Pet’r’s Br. at 23,4 ECF No. 114. The record contradicts

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Petitioner’s assertion. In fact, counsel stated during sentencing that “lengthening a term of

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imprisonment, based on rehabilitative concerns is, by the Ninth Circuit, not a permissible ground

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to increase a term of imprisonment.” Sentencing Tr. 10:13–15. This demonstrates that counsel

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As Petitioner’s Brief in Support of the 2255 Motion does not have internal page numbers, the cited page refers to
the number imprinted on the ECF footer.

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was cognizant of the Supreme Court’s holding in Tapia and the Ninth Circuit’s Grant decision

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applying Tapia to the context of revocation of supervised release.

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As counsel was in fact aware of Tapia and its application and impact on Petitioner’s

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sentencing, and given that counsel proffered the argument during sentencing, Petitioner has

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failed to show how counsel’s conduct fell below an objective standard of reasonableness.

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Accordingly, this claim is DENIED.

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III.

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CONCLUSION
Based upon the foregoing, the court GRANTS the Motion to Vacate, Set Aside, or

Correct Sentence and Petitioner’s sentence is hereby VACATED. The court will set this matter

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for resentencing at a later date.

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SO ORDERED.

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/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: Sep 13, 2013

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