Espinal v. USA
ORDER DENYING RULE 60(b) MOTION - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/19/13. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). David D. Espinal served by first class mail at the address of record on December 19, 2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
DAVID D. ESPINAL,
Crim. No. 02-00176(1)-SOM
Civ. NO. 12-00242 SOM/BMK
ORDER DENYING RULE 60(b)
ORDER DENYING RULE 60(b) MOTION
Defendant David D. Espinal was convicted of drug and
money laundering conspiracies and was sentenced by Judge David
Since then, Judge Ezra has taken senior status and
relocated to another district.
This case has been reassigned to
the present judge.
Espinal seeks reconsideration of Judge Ezra’s denial of
his motion brought under 28 U.S.C. § 2255, arguing that the
Supreme Court’s June 10, 2013, decision in Peugh v. United
States, 133 S. Ct. 2072 (2013), undermines Judge Ezra’s ruling.
Espinal argues that, under Peugh, his sentence violates the Ex
Post Facto Clause.
In his plea agreement, Espinal waived his right to
appeal or collaterally attack his conviction and sentence (except
with respect to a claim of ineffective assistance of counsel
and/or if the court departed upward from the guideline range).
This precludes the present argument.
Espinal’s counsel could not have been ineffective in
failing to raise Peugh, which was decided after Espinal was
sentenced and had appealed his conviction and sentence to the
Even assuming Espinal is simply reiterating a
previously asserted Ex Post Facto Clause argument, no such
violation based on Peugh has been demonstrated because Espinal’s
sentence was not based on sentencing guidelines that were harsher
at the time of sentencing than at the time Espinal committed the
Peugh is therefore distinguishable.
the court denies Espinal’s motion under Rule 60(b) of the Federal
Rules of Civil Procedure.
RULE 60(b) STANDARD.
Rule 60(b) of the Federal Rules of Civil Procedure
permits relief from final judgments, orders, or proceedings.
Such a motion may be granted on any one of six grounds:
(1) mistake, inadvertence, surprise, or
(2) newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released
or discharged; it is based on an earlier
judgment that has been reversed or vacated;
or applying it prospectively is no longer
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Rule 60(b) motions are committed to the
discretion of the trial court.
See Barber v. Hawaii, 42 F.3d
1185, 1198 (9th Cir. 1994) (“Motions for relief from judgment
pursuant to Federal Rule of Civil Procedure 60(b) are addressed
to the sound discretion of the district court.”).
Espinal brings the present motion under Rule 60(b)(6),
arguing that an intervening change in the law justifies relief.
On May 1, 2002, Espinal was indicted for various drug-
See ECF No. 59.
In relevant part, a Superseding
Indictment of June 19, 2002, ECF No. 145, charged Espinal with
having conspired to distribute and possess with intent to
distribute in excess of 50 grams of methamphetamine.
Superseding Indictment, Count 1.
Count 35 of the Superseding
indictment sought a criminal forfeiture.
On October 6, 2003, Espinal was charged in Count 1 of
an Information with having conspired to launder money.
On October 21, 2003, pursuant to a Memorandum of Plea
Agreement, Espinal pled guilty before a Magistrate Judge to
Counts 1 and 35 of the Superseding Indictment and Count 1 of the
See ECF No. 361, 362, and 365.
In his plea
agreement, Espinal waived his right to appeal or collaterally
attack his sentence and conviction unless his counsel was
ineffective or the court departed upward from the guideline
See ECF No. 362.
On October 30, 2003, Judge Ezra adopted
the Magistrate Judge’s recommendation that the court accept that
See ECF No. 373.
A Presentence Investigation Report (“PSR”) was prepared
by the United States Probation Office.
According to paragraph 68
of the PSR, the 2004 U.S. Sentencing Commission Guidelines Manual
was used to calculate Espinal’s guideline sentence, but “there is
no difference between the application of the guidelines in effect
at the time the offense occurred and the guidelines in effect at
the time of sentencing.”
Because Espinal was accountable for 5.3 kilograms of
generic methamphetamine, the PSR calculated his base offense
level as being 36.
The PSR added two levels for Espinal’s
conviction under 18 U.S.C. § 1956 and subtracted two levels for
his acceptance of responsibility and one level for notifying the
government of his intention to plead in a timely manner, giving
him a total offense level of 35.
Given Espinal’s criminal
history category of I, his guideline range was 168 to 210 months.
See PSR ¶ 118.
The final PSR, dated May 21, 2004, differed from
the draft PSR in that the final version of paragraph 74 did not
increase the total offense level by four levels based on
Espinal’s aggravated role in the offense--conduct that the PSR
said he had not admitted.
See Addendum 1A to PSR, Jan. 6, 2005.
However, in Addendum No. 2, dated September 9, 2005,
the PSR was amended to include in paragraph 74 the four-level
increase, based on the Probation Officer’s examination of an
admission by Espinal that he had instructed others to transport
or transfer drug proceeds to other people and to use the proceeds
to purchase cashier’s checks, in a effort to disguise his
ownership of and the sources of the drug proceeds.
indicated that this conduct rendered Espinal an organizer/leader.
The PSR reasoned that, pursuant to United States v. Ameline, 376
F.3d 967 (9th Cir. 2004), the federal sentencing guidelines,
which became advisory under United States v. Booker, 543 U.S. 220
(2005), could be applied if they increased a defendant’s sentence
in compliance with the requirements of Blakely v. Washington, 542
U.S. 296 (2004).
Espinal’s total offense level became 39, giving
him an advisory guideline range of 262 to 367 months when
combined with his criminal history category of I.
On March 14, 2007, Judge Ezra granted the Government’s
motion for a downward departure.
He sentenced Espinal to 190
months of imprisonment and five years of supervised release as to
Count 1 of the First Superseding Indictment and Count 1 of the
Information, with the terms running concurrently.
ECF No. 659, Mar. 14, 2007; Amended Judgment in a Criminal Case,
ECF No. 672, Apr. 13, 2007.
See ECF No. 667.
On March 27, 2008,
the Ninth Circuit dismissed the appeal, noting that Espinal had
waived his appellate rights.
See ECF No. 696.
On May 7, 2012, Espinal filed a motion under 28 U.S.C.
See ECF No. 720.
October 31, 2012.
Judge Ezra denied this motion on
See ECF No. 736.
Espinal moved for
reconsideration of the order; Judge Ezra denied that motion.
ECF Nos. 737 and 738.
relief from the order.
On January 25, 2013, Espinal again sought
See ECF No. 740.
The case was reassigned
to the present judge, who denied that new motion on January 29,
See ECF Nos. 744 and 745.
Espinal appealed, but was
denied a certificate of appealability by both the district court
and the Ninth Circuit.
See ECF Nos. 746, 752, and 755.
On June 10, 2013, the Supreme Court decided Peugh, 133
S. Ct. 2072.
The present motion followed.
See ECF No. 757,
Sept. 30, 2013.
In Peugh, the Supreme Court noted that the Constitution
prohibits ex post facto laws, including those that inflict a
greater punishment than the law provided for when the crime was
133 S. Ct. at 2081.
Peugh held that the Ex Post
Facto Clause is violated when a court applies guidelines in
effect at the time of sentencing that had more severe
consequences than the guidelines in effect at the time the crime
See id. at 2078-79, 2084.
Espinal’s present motion for reconsideration is based
solely on Peugh.
He argues that the four-level organizer/leader
increase added in Addendum No. 2 to the PSR violated the Ex Post
Espinal has waived this argument.
Even if that
were not the case, the argument fails.
Espinal pled guilty pursuant to a plea agreement.
ECF No. 362.
In that plea agreement, Espinal waived his right to
appeal or collaterally attack his conviction and sentence, except
when he asserted a claim of ineffective assistance of counsel or
the court departed upward from the guideline range in sentencing
He therefore waived his argument that his sentence violated
the Ex Post Facto Clause.
First, he was not sentenced to more
than either the original or the amended guideline range.
the present motion cannot be fairly read as premised on a viable
claim of ineffective assistance of counsel.
could not have been ineffective in failing to raise or prevail on
an argument based on Peugh, which was decided after Espinal’s
appeal was concluded.
Even if Espinal is arguing that his
attorney was ineffective in having failed to raise an Ex Post
Facto Clause argument, Peugh provides no justification for
reconsidering the court’s earlier orders.
Espinal’s four-level increase for being an
organizer/leader did not flow from the application of sentencing
guidelines that were harsher at the time of sentencing than at
the time Espinal committed his crimes.
Instead, as noted in
Addendum 2 to the PSR, the increase was based on Espinal’s
admission that, to disguise the ownership and source of his drug
proceeds, he had instructed various individuals to transfer or
transport drug proceeds to other people and to use those proceeds
to purchase cashier’s checks.
Whether the court used the
advisory sentencing guidelines in effect at the time Espinal
committed his crimes or the guidelines in effect at the time he
was sentenced, § 3B1.1(a) called for an increase of four levels
because Espinal had admitted facts demonstrating that he “was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.”
Espinal’s motion for reconsideration is denied.
For the forgoing reasons, Espinal’s motion for
reconsideration, ECF No. 757, is denied.
To the extent this court may be asked to issue a
certificate of appealability for the issue raised in the present
motion, the court declines to issue such a certificate.
has not made a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
determines that reasonable jurists would not debate the
enforceability and application of Espinal’s waiver of the claim
Moreover, no reasonable jurist would find this
court’s assessment of the merits of Espinal’s constitutional
claim debatable or wrong.
See Slack v. McDaniel, 529 U.S. 473,
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 19, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
United States v. Espinal, Crim. No. 02-00176 SOM, Civ. No. 12-00242 SOM/BMK; ORDER
DENYING RULE 60(b) MOTION
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?