Madrigal v. USA

Filing 14

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that Defendant Rafeal Madrigal's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 1 is DENIED and the Motion for Downward Departure 11 is DENIED. No certificate of appealability shall issue.. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RAFEAL MADRIGAL,

Case No. 1:11-cv-00389-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

INTRODUCTION
Pending before the Court is Rafeal Madrigal’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (Dkt. 1), and Motion for Downward
Departure (Dkt. 11). Having reviewed the record, including the record in the underlying
criminal case, the Court will deny the motions.
BACKGROUND
On May 14, 2008, the grand jury indicted Madrigal with numerous firearmsrelated counts and illegal re-entry. USA v. Madrigal, 1:08-cr-112-BLW, Dkt. 1. On
September 17, 2008, the parties filed a Plea Agreement. Id., Dkt. 2. Madrigal pleaded
guilty to Counts One, Four, and Seven: Illegal Re-entry, Possession of an Unregistered,
Sawed-Off Shotgun, and Forfeiture. Id., Dkt. 23.

On January 9, 2009, right before his sentencing, Madrigal moved to withdraw his
guilty plea. Id., Dkt. 33. On January 22, 2009, the Court denied his motion to withdraw
his plea and sentenced him to 130 months. Id., Dkt. 37, 39. Shortly thereafter, on January
26, 2009, Madrigal filed an appeal. Id., Dkt. 40. The Ninth Circuit affirmed Madrigal’s
conviction. Id., Dkt. 56.
ANALYSIS
1. Motion to Vacate Sentence
Madrigal moves to vacate his sentence based on four claims, which he sets forth
with a minimum of detail and in a conclusory manner. Madrigal alleges: (1) his counsel
was ineffective because he failed to object to the Government’s alleged improper motive
in declining to move for a downward departure for substantial assistance; (2) his counsel
was ineffective because he failed to advise him of the immigration consequences related
to his convictions; (3) his prior convictions were used to unconstitutionally enhance his
sentence; and (4) he is entitled to post-sentencing rehabilitation relief in accordance with
Pepper v. United States. Def.’s Mot., Dkt. 1. Even accepting the truth of Madrigal’s
factual allegations, no hearing is warranted. The Court will decide the motion based on
the briefing and the record.
A. Ineffective Assistance of Counsel Claims
To prevail on an ineffective assistance of counsel claim, a defendant must show
(1) that his representation fell below objectively “reasonabl[e] effective service” and (2)
the reasonable probability that the result was prejudiced by counsel’s actions. Strickland
v. Washington, 466 U.S. 668, 687-688 (1984). The Strickland two-part test is applicable

to cases where a defendant claims ineffective assistance of council during a guilty plea.
Hill v. Lockhart, 474 U.S. 54, 58 (1985). Allegations that are merely conclusory are
insufficient to support a claim for ineffective assistance of counsel. United State v.
Johnson, 988 F.2d 941, 945 (9th Cir. 1993). The Court may evaluate the elements of
ineffective counsel in either order, and need not show that both elements are not if there
is insufficient showing of one. Id. at 697.
Generally, there is no rule that defines the basis for a finding of ineffective
counsel; rather it is based on case specific circumstances. Strickland, 466 U.S. at 690.
However, there is a presumption that “counsel’s conduct falls within a wide range of
reasonable professional assistance.” Id. To show that counsel did not perform reasonably
effective service, the defendant must show that counsel made errors that no reasonable
attorney would have made under the same circumstances. Id. In evaluating counsel
performance, the court should analyze performance throughout the case to determine if
the alleged erroneous conduct “overcomes the presumption that counsel rendered
reasonable professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986).
To show prejudice, a defendant must show that without counsel’s errors, there is a
“reasonable probability” that the result of the case would be different. Hill v. Lockhart,
474 U.S. 52, 58 (1985). A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The burden to show
prejudice is on the moving party. Id. The standard to show prejudice is “highly
demanding.” Kimmelman, 477 U.S. at 381-82. Even if there were an unreasonable error

by counsel, if it does not affect the outcome, the judgment should not be set aside.
Strickland, 466 U.S. at 62.
(1) Government’s Alleged Improper Motive in Not Requesting Downward
Departure for Substantial Assistance
Madrigal previously raised the issue of the Government’s failure to move for a
downward departure based on substantial assistance when he moved to withdraw his
plea. During the hearing on that motion, the Court noted that Madrigal was advised on “at
least three different occasions during the plea colloquy” that the Government had the sole
discretion to recommend substantial assistance and that Madrigal would not be allowed to
withdraw his plea if they did not make the motion. Sentencing Tr., 10, Dkt. 3-1.
Now it appears that Madrigal is trying to make the same argument without proof of an
improper motive. Indeed, Madrigal does not even articulate what the “improper motive”
may have been. Given the lack of any detail about the allegedly improper motive,
Madrigal fails to satisfy either part of the Strickland test. He does not overcome the
presumption that counsel’s performance was reasonable, and he fails to show any
prejudice.
(2) Failure to Warn of Immigration Consequences
Madrigal next argues that his attorney failed to warn him of the consequences of
pleading guilty to his immigration status. Yet, Madrigal criminal history reveals that he
has previous aggravated felony convictions and two previous illegal re-entry convictions.
Madrigal had also been deported previously. So, even assuming his attorney failed to
inform him of the consequences of pleading guilty, Madrigal knew what the

consequences would be based on his own personal experience. Moreover, Madrigal’s
conviction on this charge will add nothing to the immigration problems he faces because
of the prior aggravated felony and illegal re-entry convictions. Therefore, he cannot
show prejudice and this allegation must be dismissed.
B. Prior Convictions Enhancing Sentence
Madrigal already argued on direct appeal that his previous convictions illegally
enhanced his sentence. The Ninth Circuit found “no arguable grounds for relief on direct
appeal” in a memorandum disposition. Ninth Circuit Case 09-30039, Dkt. 17-3. If a
matter has been decided adversely to a defendant on direct appeal, he cannot re-litigate
the matter on collateral attack in most cases. Clayton v. United States, 447 F.2d 476, 477
(9th Cir. 1971). And Madrigal offers no reason that would allow him to re-litigate this
decision in a § 2255 motion. This claim therefore must also be dismissed.
C. Post-sentencing Rehabilitative Relief
Madrigal also argues that “pursuant to the new Supreme Court ruling in PEPPERS [v.
United States], Petition is entitled to postsentencing rehabilitation relief….” In Pepper v.
United States, 131 S.Ct. 1229 (2011), the Supreme Court overturned the lower court’s
decision not to consider, at a re-sentencing, information demonstrating Pepper’s
rehabilitation since a prior sentencing. Id. at 1237. Specifically, Pepper’s rehabilitation
included holding a job where he received praise, being drug-free, and reconnecting with
his father. Id. The Supreme Court held that, when a defendant's sentence has been set
aside on appeal and his case remanded for resentencing, a district court may consider
evidence of the defendant's rehabilitation since his prior sentencing, and such evidence

may, in appropriate cases, support a downward variance from the advisory sentencing
guidelines range. Id. at 1236.
Pepper does not apply here. Madrigal’s sentence was affirmed on appeal – not
overturned. He is not being re-sentenced. And he offers no evidence of his rehabilitation.
Therefore, Madrigal’s last claim will also be dismissed.
2. Motion for Downward Departure
Madrigal also moves for a downward departure. Although not at all clear, it appears
that his arguing that he should have been placed in a lower criminal history category
based on amendments to the United States Sentencing Guidelines made after his sentence
was imposed.
This argument fails because the amendments do not apply retroactively. Madrigal
raises: (1) Amendment 754 added to the end of Guideline § 2L1.2(b)(a)(A); (2)
Amendment 742 (2010), which struck subsection (e) from § 4A1.1(e); (3) Amendment
738 (2009) to § 5A, which expands Zones B and C of the Sentencing Table in Chapter
Five; and (4) Amendment 739 (2010) to § 5H, which replaces the previous Introductory
Commentary with more specific directions.
When sentencing a defendant, the District Court is to apply the Guidelines in effect as
of the day of sentencing. United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir. 1991).
However, subsequent substantive amendments allow the Court to use its discretion to
reduce the sentence if the Guideline under which the defendant was imprisoned is
specifically mentioned in U.S.S.G. § 1B1.10(c). United States v. Wales, 977 F.2d 1323,
1327 (9th Cir. 1992). Unless the amended section of the Guideline is specifically

addresse in U.S.S. § 1B1.1
ed
.G.
10(c), it has no retroact effect. United Stat v. Aldan
tive
tes
naOrtiz, 6 F.3d 601, 602 (9th Cir 1993). Th sections of the Guid
6
r.
he
delines unde which
er
Madriga was sente
al
enced are no specifically mention in U.S.S § 1B1.
ot
ned
S.G.
.10(c) and h
have
no retroa
active appli
ication. The
erefore, Ma
adrigal’s mo
otion is den
nied.
ORDER
O
IT IS OR
RDERED th
hat:
1. Defendant Rafeal Madr
D
R
rigal’s Moti to Vaca Set Asid or Corre Sentence
ion
ate,
de,
ect
pursuant to 28 U.S.C. § 2255 (Dkt 1) is DEN
2
t.
NIED; and
2. The Motion for Downw
T
ward Depart
ture (Dkt. 11) is DENI
IED.
3. No certificat of appeal
N
te
lability shal issue. Ma
ll
adrigal is ad
dvised that h may still
he
l
re
equest a cer
rtificate of appealabilit from the Ninth Circ Court of Appeals,
a
ty
cuit
pursuant to Federal Rul of Appell Proced
F
le
late
dure 22(b) a Local N
and
Ninth Circui
it
Rule 22–1. To do so, he must file a timely no
R
T
e
otice of appe
eal.
4. If Madrigal files a timely notice of appeal, an not until such time, the Clerk o
f
f
f
nd
of
Court shall forward a co of the notice of ap
C
f
opy
n
ppeal, togeth with thi Order, to the
her
is
Ninth Circui Court of Appeals. Th district c
N
it
A
he
court's file i this case is available for
in
e
re
eview onlin at www.i
ne
id.uscourts.gov.
DAT
TED: Septe
ember 29, 2
2014

__________
__________
_____
___
B. L
Lynn Winm
mill
Chief Judge
ited
District Cou
urt
Uni States D