Tafolla-Gonzalez v. USA
Filing
18
MEMORANDUM DECISION AND ORDER granting in part and denying in part 7 Motion for Summary Judgment AND Motion to Appoint Counsel; granting in part and denying in part 9 Motion to Dismiss. IT IS FURTHER ORDERED, that plaintiffs Conviction for Conspi racy to Distribute a Controlled Substance in violation of 21 U.S.C. § 846, Count 1 of the Indictment, Case No. 4:07-cr-00088-BLW, is hereby VACATED. IT IS FURTHER ORDERED, that the Clerk prepare an Amended Judgment reflecting the dismissal of th e Conspiracy charge. IT IS FURTHER ORDERED, that within the next 60 days, the plaintiff and the Probation Office file a statement of account showing what has been paid on the $2,600 assessment to determine if plaintiff is entitled to a $100 refund or a reduction in the amount still owed. 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 (cjm)(Emailed to USP and jd in Finance.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 4:11-cv-00181-BLW
MEMORANDUM DECISION AND
ORDER
v.
HIGINIO TAFOLLA-GONZALEZ,
Defendant.
INTRODUCTION
Higinio Tafolla-Gonzalez was convicted of twenty-six federal offenses, all
stemming from his leadership of a methamphetamine distribution operation. He now
raises five challenges to his convictions and sentence pursuant to 28 U.S.C. § 2255.
Because his challenge to his conviction for conspiracy to distribute methamphetamine
and engaging in a continuing criminal enterprise makes out a Double Jeopardy Clause
violation, the Court will grant his motion in part. The appropriate remedy for this
violation is to vacate the conspiracy conviction. The double jeopardy violation does not,
however, require Tafolla-Gonzalez be resentenced. His remaining challenges are
meritless.
BACKGROUND
In February 2008, Higinio Tafolla-Gonzalez stood trial on a thirty-two counts for
his involvement in an interstate methamphetamine distribution operation. United States
MEMORANDUM DECISION AND ORDER - 1
v. Tafolla-Gonzalez, No. 4:07-cr-00088-BLW. According to Tafolla-Gonzalez, once
prior to the start of his trial and twice during, the prosecutor approached TafollaGonzalez through his counsel in an effort to initiate plea negotiations. The government
sought Tafolla-Gonzalez’s testimony against another individual involved in the
distribution ring. However, Tafolla-Gonzalez did not know the individual, and so
informed the government. As a result, the government never extended to TafollaGonzalez a formalized plea offer, and the trial continued.
Ultimately, the jury returned a special verdict form that convicted TafollaGonzalez of twenty-six counts. Most important to this motion are Tafolla-Gonzalez’s
convictions for (1) conspiracy to distribute methamphetamine, 21 U.S.C. § 846, under
Count One of the Indictment, and (2) engaging in a continuing criminal enterprise
(“CCE”) under count thirty-nine of the Indictment. The jury found Tafolla-Gonzalez’s
involvement in the CCE began on July 28, 2004, and lasted until April 3, 2007.
At sentencing, the Court grouped Tafolla-Gonzalez’s convictions together
pursuant to Sentencing Guideline § 3D1.2 (d), and imposed a sentence based upon the
most serious offense, the CCE conviction. Tafolla-Gonzalez’s base offense level was
determined primarily upon the quantity of methamphetamine for which Tafolla-Gonzalez
was found responsible. See §§ 2D1.1, 2D1.5. Based upon the unopposed
recommendation contained in the presentence report, the Court found that TafollaGonzalez was responsible for trafficking three pounds of methamphetamine per month
for twenty-two months, which is the equivalent of 29.937 kilograms. That amount of
MEMORANDUM DECISION AND ORDER - 2
methamphetamine translates to a base offense level of 38 under the drug quantity tables.
See § 2D1.1(c)(1). After the four level increase required by § 2D1.5 for his leadership
role in the operation, Tafolla-Gonzalez’s base offense level was 42. His criminal history
category was zero. Thus, Tafolla-Gonzalez’s guideline range was 360 months to life.
After considering the § 3553(a) factors, the Court concluded that the appropriate sentence
for Tafolla-Gonzalez’s crimes was 360 months.
Tafolla-Gonzalez appealed his conviction and sentence, and the Ninth Circuit
affirmed. United States v. Tafolla-Gonzalez, 2010 WL 3377647 (9th Cir. 2010). With
respect to Tafolla-Gonzalez’s sentence, the panel held that this Court “correctly
determined the Guidelines range for [Tafolla-Gonzalez’s] crimes.” Id. at *3.
Acting pro se, Tafolla-Gonzalez now challenges his sentence under 28 U.S.C. §
2255. He makes five claims: (1) that his conspiracy conviction and CCE conviction
constitute double punishment in violation of the Double Jeopardy clause of the Fifth
Amendment because conspiracy to distribute is a lesser-included offense of the CCE
offense; (2) that he was denied due process at his sentencing hearing because there was
some initial confusion over which counts he had been convicted; (3) that the Court’s drug
quantity calculation was not supported by the evidence; (4) that by withholding a formal
plea offer, the Government violated his Sixth Amendment right to counsel in light of the
Supreme Court’s holding in Lafler v. Cooper, 132 S. Ct. 1376 (2012); and (5) that by
failing to raise the double jeopardy challenge, his counsel has committed conduct that
gives rise to a claim for ineffective assistance of counsel (IAC).
MEMORANDUM DECISION AND ORDER - 3
In response, the Government moves to dismiss Tafolla-Gonzalez’s motion. The
government argues that, with the exception of his IAC claim, Tafolla-Gonzalez
procedurally defaulted his claims. Furthermore, the Government argues that TafollaGonzalez has failed to satisfy the elements for an IAC claim.
ANALYSIS
The Court turns first to the Government’s claims of procedural default. The
general rule is that “claims not raised on direct appeal may not be raised on collateral
review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538
U.S. 500, 504 (2003). Tafolla-Gonzalez has failed show any reason why he failed to
raise in his direct appeal his claims other than his IAC claim. Those claims existed at the
time of his direct appeal and could have been raised there. Accordingly, those claims
must be dismissed.1 The IAC claim remains because it could not be raised on direct
appeal. U.S. v. McKenna, 327 F.3d 830, 845 (9th Cir.2003).
The Court would also note that with respect to Tafolla-Gonzalez’s claim that the
Court erred in calculating his drug quantity, the Ninth Circuit considered and rejected that
argument in his direct appeal. In his direct appeal, the Circuit questioned “whether the
district court abused its discretion in imposing a 360-month sentence.” Tafolla-Gonzalez,
supra at *3. The court answered its question as follows:
1
Whatever confusion existed at sentencing over the counts of conviction was cleared up and his sentence
corresponded to the appropriate convictions. Compare, Sentencing Transcript (Dkt. No. 306) at p. 5 with
Verdict Form (Dkt. No. 181). Moreover, Tafolla-Gonzalez’s reliance on Lafler v. Cooper, 132 S. Ct.
1376 (2012) for his claim that he should have received a formal plea offer is without merit. Lafler
actually held that “defendants have no right to be offered a plea.” Id. at 1387.
MEMORANDUM DECISION AND ORDER - 4
The district court correctly determined that the Guidelines range for
Tafolla's crimes is 360 months to life. In imposing the low-end, 360-month
sentence, the district court considered the 18 U.S.C. § 3553(a) factors and
noted that Tafolla was the leader of a large scale methamphetamine
conspiracy spanning at least 32 months. The district court also considered
Tafolla's education level and family relationships, his history of substance
abuse, his age, his likelihood of recidivism, and the need for deterrence.
Therefore, considering the totality of the circumstances, the sentence is
substantively reasonable.
Id. (emphasis added). As described above, Tafolla-Gonzalez’s Guidelines range
depended almost entirely on the Court’s drug quantity calculation. There is no way that
the Circuit could have decided that this Court “correctly determined [the] Guideline[]
range” without considering the underlying drug quantity calculation. There is no need to
relitigate this issue now.
Turning to the IAC claim, Tafolla-Gonzalez must show that (1) his counsel’s
performance fell “below an objective standard of reasonableness and (2) a reasonable
probability exists that, but for counsel’s error, the result would have been different.”
United States v. Mejia-Mesa, 153 F.3d 925, 930-31 (9th Cir. 1998) (citing Strickland v.
Washington, 466 U.S. 668, 690-92 (1984)).
Tafolla-Gonzalez argues that his counsel was ineffective for failing to argue that
his conspiracy conviction amounted to impermissible double punishment in violation of
the Double Jeopardy clause because it is a lesser-included offense of the CCE offense. In
support of his argument, Tafolla-Gonzalez cites Rutledge v. U.S., 517 U.S. 292, 294, 300
(1996), which held that conspiracy to distribute a controlled substances, 21 U.S.C. § 846,
MEMORANDUM DECISION AND ORDER - 5
is a lesser-included offense of CCE, 21 U.S.C. § 848, when “the ‘in concert’ element of
[the] CCE offense was based upon the same agreement as the § 846 conspiracy.”
The Government concedes that Tafolla-Gonzalez’s conspiracy conviction should
have merged with his CCE conviction. However, the Government argues that TafollaGonzalez was not prejudiced by that error because he is not eligible to have his sentence
reduced. It is true that Tafolla-Gonzalez is not eligible to have his sentence reduced,
because it was based entirely on his CCE conviction, as discussed above. TafollaGonzalez accepts this fact. See Def. Motion (Dkt. No. 7) at p. 2. However, this does not
entirely dispel the prejudice resulting from the conspiracy conviction. As the Supreme
Court stated in Rutledge,
“The second conviction, whose concomitant sentence is served
concurrently, does not evaporate simply because of the concurrence of the
sentence. The separate conviction, apart from the concurrent sentence, has
potential adverse collateral consequences that may not be ignored. For
example, the presence of two convictions on the record may delay the
defendant's eligibility for parole or result in an increased sentence under a
recidivist statute for a future offense. Moreover, the second conviction may
be used to impeach the defendant's credibility and certainly carries the
societal stigma accompanying any criminal conviction. Thus, the second
conviction, even if it results in no greater sentence, is an impermissible
punishment.”
Rutledge, 517 U.S. at 302 (emphasis in original). These concerns may seem attenuated in
light of Tafolla-Gonzalez’s twenty-five remaining convictions and looming removal from
the United States. Ultimately, however, the Court agrees with the Second Circuit’s
response to the same issue: “The degree of prejudice may not seem great, but when one
considers that there is essentially no reason not to correct what was a manifest error, [a
MEMORANDUM DECISION AND ORDER - 6
small degree of prejudice] is sufficient.” Jackson v. Leonardo, 162 F.3d 81, 86 (2d Cir.
1998).
Because the government does not challenge the first prong of the Strickland test,
the Court assumes without deciding that it is satisfied. Therefore, the Court will vacate
Tafolla-Gonzalez’s conspiracy conviction. See U.S. v. Jose, 425 F.3d 1237, 1247 (9th
Cir. 2005) (“[W]hen a jury convicts on both the greater and lesser included offenses, . . .
the district court should enter a final judgment of conviction on the greater offense and
vacate the conviction on the lesser offense.”). As discussed above, this has no effect on
Tafolla-Gonzalez’s sentence as it was based entirely on the CCE conviction.
CONCLUSION
Because Tafolla-Gonzalez’s conspiracy conviction violates the Double Jeopardy
Clause, the Court will prepare an Amended Judgment that reflects the dismissal of that
charge. At sentencing the Court imposed a special assessment of $2,600.00. One
hundred dollars of that assessment was based on the conspiracy conviction. Within the
next 60 days, Tafolla-Gonzalez may come forward with evidence regarding the
outstanding balance, if any, of the $2,600.00 assessment. If Tafolla-Gonzalez shows he
has paid the entire assessment, the Court will order a refund of the $100.00. If TafollaGonzalez has an outstanding balance on the total assessment, however, the Court will
reduce the assessment to $2,500.00. The Court would also direct the Probation Office to
provide any information it has on this assessment and the amount still owing.
MEMORANDUM DECISION AND ORDER - 7
Tafolla-Gonzalez’s requests for an evidentiary hearing and appointment of counsel
are moot.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the Government’s motion
to dismiss (docket no. 9) is GRANTED IN PART AND DENIED IN PART. It is granted
to the extent it seeks to dismiss all claims but the claim for ineffective assistance of
counsel. It is denied to the extent it seeks to dismiss the claim for ineffective assistance
of counsel.
IT IS FURTHER ORDERED, that plaintiff’s motion under 28 U.S.C. § 2255
(docket no. 1) and motion for summary judgment (docket no. 7) are GRANTED IN
PART AND DENIED IN PART. They are granted to the extent they seek to dismiss the
conviction for conspiracy as violating the Double Jeopardy Clause. They are denied in
all other respects.
IT IS FURTHER ORDERED, that plaintiff’s Conviction for Conspiracy to
Distribute a Controlled Substance in violation of 21 U.S.C. § 846, Count 1 of the
Indictment, Case No. 4:07-cr-00088-BLW, is hereby VACATED.
IT IS FURTHER ORDERED, that the Clerk prepare an Amended Judgment
reflecting the dismissal of the Conspiracy charge.
IT IS FURTHER ORDERED, that within the next 60 days, the plaintiff and the
Probation Office file a statement of account showing what has been paid on the $2,600
MEMORANDUM DECISION AND ORDER - 8
assessment to determine if plaintiff is entitled to a $100 refund or a reduction in the
amount still owed.
DATED: August 4, 2014
_________________________
B. Lynn Winmill
Chief Judge
United States District Court
MEMORANDUM DECISION AND ORDER - 9
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?