Osuna v. United States of America

Filing 17

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

M A R K ANTHONY OSUNA, M o v a n t, File No. 1:08-CV-515 v. H O N . ROBERT HOLMES BELL U N IT E D STATES OF AMERICA, R e sp o n d e n t. / OPINION T h is matter comes before the Court on Movant Mark Anthony Osuna's motion under 2 8 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him by this C o u rt. For the reasons that follow, this motion will be denied. I. M o v a n t was indicted on May 8, 2007, for conspiracy to possess, with intent to d is trib u te , more than five kilograms of powder cocaine, fifty grams of cocaine base, and 1000 k i l o g ra m s of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. M o v a n t pleaded guilty on October 1, 2007, pursuant to a written plea agreement. This Court, o n January 14, 2008, sentenced Movant to the mandatory statutory minimum of 120 months o f incarceration and five years of supervised release. United States v. Osuna, File No. 1:07C R -0 6 , Dkt. No. 447 (W.D. Mich. Jan. 14, 2008). Movant did not appeal his conviction or s e n te n c e. Movant filed his § 2255 motion on June 2, 2008.

II. T o prevail on a § 2255 motion "`a petitioner must demonstrate the existence of an e r r o r of constitutional magnitude which had a substantial and injurious effect or influence o n the guilty plea or the jury's verdict.'" Humphress v. United States, 398 F.3d 855, 858 (6th C ir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Nonc o n s ti t u t i o n a l errors are generally outside the scope of § 2255 relief. United States v. C o field , 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a § 2255 motion a lle g in g non-constitutional error only by establishing a "`fundamental defect which in h e re n tly results in a complete miscarriage of justice, or, an error so egregious that it a m o u n ts to a violation of due process.'" Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1 9 9 9 ) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal q u o ta tio n marks omitted)). As a general rule, claims not raised on direct appeal are procedurally defaulted and m a y not be raised on collateral review unless the petitioner shows either: (1) "cause" and " a ctu a l prejudice"; or (2) "actual innocence." Massaro v. United States, 538 U.S. 500, 504 (2 0 0 3 ); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U .S . 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of c o u n s e l claim may be raised in a collateral proceeding under § 2255, whether or not the m o v a n t could have raised the claim on direct appeal. Id.

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A court is required to grant a hearing to determine the issues and make findings of fact a n d conclusions of law on a § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." 28 U.S.C. § 2255(b). I I I. M o v a n t seeks relief based on ineffective assistance of counsel, for which he has six d istinct claims: (1) counsel failed to object to the late receipt of the pre-sentence report (" P S R " ); (2) counsel failed to object to the drug quantity determination in the PSR; (3) c o u n se l failed to object to the calculation of Movant's criminal history level in the PSR; (4) c o u n se l failed to object to the Court's failure to reduce Movant's offense level for minimal p a rtic ip a tio n in the conspiracy; (5) counsel failed to object to the sufficiency of the evidence u s e d to support Movant's conviction for conspiracy; (6) counsel failed to file an appeal d e s p ite Movant's indication of his desire to appeal. (Dkt. No. 1, Ex. 1, § 2255 Pet.) T o make out a claim of ineffective assistance of counsel, Movant must show that c o u n se l's representation fell below an objective standard of reasonableness, and that c o u n s e l's deficient performance prejudiced Movant. Strickland v. Washington, 466 U.S. 6 6 8 , 687-88 (1984). A. Claims Regarding Sentencing T h e government argues that Movant cannot establish prejudice for his first four claim s, regardless of their merit, because Movant was sentenced to the statutory mandatory m in im u m and not under the sentencing guidelines. (Dkt. No. 12, Govt. Resp. 7.) Movant

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c o n ten d s that the Court has authority under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 to s e n te n c e him below the statutory minimum. (Dkt. No. 16, Reply to Govt. 2.) While Movant is correct that it is possible for the Court to impose a sentence below the statutory minimum, th is authority is limited and requires a motion from the government explicitly authorizing a d e p a rtu re . 18 U.S.C. § 3553(e). While the government may authorize such a departure in a § 5K1.1 motion without directly citing § 3553(e), it "must in some way indicate its desire o r consent that the court depart below the statutory minimum before the court may do so." M e le n d e z v. United States, 518 U.S. 120, 126 n.5 (1996). The government's § 5K1.1 motion states that "[t]he government does not request re le a se of the mandatory minimum unless the bottom end of the guideline range, as d e te rm in e d by the Court before any downward departure, is 120 months or less." (File No. 1 :07 -C R -06 , Dkt. No. 437.) This statement was made in reliance on the Probation Officer's c o m p u ta tio n of a range of 168-210 months. Id. Thus, the Court believes it unlikely that the g o v e r n m e n t anticipated a Court-determined range of 120 months or less. Considering these c irc u m s ta n c es , the Court interprets the statement as the government's intent to reserve the rig h t to reverse its decision about not requesting release of the mandatory minimum, if a ra n g e of 120 months or less did occur. As the government never authorized that release, the C o u rt finds that it did not possess the authority to depart below the statutory minimum. T h e r e f o r e , the Court finds that Movant's first four contentions cannot have resulted in p re ju d ic e .

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H o w e v e r, even if the Court did find that it was authorized to sentence below the s ta tu t o ry minimum, it finds that Movant's first four claims are without merit. Movant first c o n te n d s that he did not receive the PSR at least thirty-five days before sentencing as re q u ire d by Fed. R. Crim. P. 32(e)(2). Movant alleges that he did not receive the PSR until th e day before his sentencing due to either his counsel not receiving a copy until then or his c o u n se l negligently failing to provide Movant with a copy until then. (Dkt. No. 1, Ex. 1, § 2255 Pet. 23-25.) Even if this allegation was true, Movant's statements at his sentencing in d ic a te that he was not prejudiced by counsel's failure under either alternative: T H E COURT: Mr. Osuna, have you had an opportunity to carefully review th is presentence report with your attorney, Mr. Levine? D E F E N D A N T OSUNA: Yes, Your Honor. THE COURT: Are you satisfied with his representations of you? D E F E N D A N T OSUNA: Yes, Your Honor. (File No. 1:07-CR-06, Dkt. No. 501, at 40.) Moreover, Movant supports his claim of p re ju d ic e on the sole basis that "[but] for counsel's unreasonable failure . . . it is clear th ro u g h o u t the other sentencing issues that Osuna has raised in the this [sic] section 2255, th a t Osuna would have prevailed in obtaining A [sic] lesser sentence." (Dkt. No. 1, Ex. 1, § 2255 Pet. 26.) However, as this opinion demonstrates, the other sentencing issues Movant ra is e s are without merit. Therefore, any failure of counsel with regard to Movant's receipt o f the PSR did not prejudice Movant. Movant also contends that counsel should have objected to the PSR's drug quantity 5

d e t e rm in a t io n , which held him accountable for the cocaine transported in his trucks. H o w e v e r, counsel did object to Movant being held accountable for any cocaine: D e f en d a n t Mark Osuna objects to the inclusion in report paragraph 45 th a t he was directly involved in the transportation of cocaine to Lansing, M ic h ig a n . As I have discussed with you, my client maintains that he was w ith o u t knowledge as to the cocaine, crack or powder, aspect of the criminal e n te rp ris e . My client, thus, objects to any attribution to him of the cocaine a s p e c t of the conspiracy. .... M a rk Osuna respectfully disagrees with your base offense calculation, as set forth in paragraph 166 . . . . I believe it is more appropriate that Mr. O su n a 's base offense level reflect his actual participation in being limited to a s s is tin g in the trafficking of marijuana. (Dkt. No. 12, Attach. 1, Levine Obj. Letter.) Thus, Movant's claim is without merit. M o v a n t 's third contention is that counsel failed to object to the calculation of his c rim in a l history level. He believes his prior marijuana offenses should not have been scored b e c au s e they did not carry a sentence of more than one year of probation or thirty days of im p riso n m e n t, as required by U.S.S.G. § 4A1.2(c)(1). Movant is incorrect. The necessity o f one year of probation or thirty days of imprisonment under § 4A1.2(c)(1) is a an exception th a t only applies to a list of offenses which does not include possession of marijuana or a n yth in g similar. Counsel's failure to raise this argument was objectively reasonable and did n o t prejudice Movant. M o v a n t lastly contends that counsel failed to object to the Court's failure to reduce M o v a n t's offense level for minimal participation in the conspiracy. Movant received a two-

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l e v e l reduction for minor participation but argues that counsel was ineffective for not p u rsu in g an additional two-level reduction for minimal participation. Minimal participants a re "plainly among the least culpable of those involved in the conduct of the group." U .S .S .G . § 3B1.2 cmt. n.4. "[T]he defendant's lack of knowledge or understanding of the s c o p e and structure of the enterprise and of the activities of others is indicative of a role as m in i m a l participant." Id. Movant is correct that he initially became involved in the c o n s p ira c y as collateral for his brother. (Dkt. No. 16, at 3.) However, he did not lack k n o w le d g e or understanding of the scope of the enterprise. During his plea hearing, Movant a d m itte d to having discussions with the head of the conspiracy concerning the extent of the c r im in a l activities: T H E COURT: Did you have occasion to talk about what you were doing with H u m p h r y? D E F E N D A N T OSUNA: Yes, Your Honor. T H E COURT: Did you have occasion to have him talk to you about the price, q u a n t ity, time of delivery and other such things? D E F E N D A N T OSUNA: Yes, Your Honor. (File No. 1:07-CR-06, Dkt. No. 433, at 20.) Even after returning home, Movant continued h is participation by knowingly supplying trucks to transport large quantities of drugs from T e x a s to Michigan. (File No. 1:07-CR-06, Dkt. No. 501, Sent. Tr. 40.) Movant's knowledge o f the scope of the conspiracy precludes him from classification as a minimal participant.

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C o u n s e l's failure to raise this argument was objectively reasonable and did not prejudice M o v a n t. B. Claim Regarding Sufficiency of the Evidence In addition to his sentencing claims, Movant contends that counsel failed to object to th e sufficiency of the evidence used to support Movant's conviction of conspiracy. The issue o f whether or not the government possessed sufficient evidence to convict Movant of c o n sp ira c y is moot. A plea of guilty is an admission of all the factual and legal elements n e e d e d to sustain a conviction. United States v. Broce, 488 U.S. 563, 569 (1989). A k n o w in g and voluntary plea of guilty waives all claims regarding the sufficiency of the e v id e n c e . United States v. Bahur, 200 F.3d 917, 923 (6th Cir. 2000). Movant pleaded guilty to the conspiracy charge and admits that he "entered a plea that was freely and voluntarily m a d e ." (Dkt. No.1, Ex. 1, at 23.) After a thorough hearing, the Court reached the same c o n c lu s io n : "[T]his plea is made freely and voluntarily and apparently without any promises o f lenience or coercion pursuant to a plea agreement." (File No. 1:07-CR-06, Dkt. No. 433, at 24-25.) Thus, this claim was waived when Movant signed the plea agreement. Counsel's f a ilu re to raise this argument was objectively reasonable and did not prejudice Movant. C . Claim Regarding Failure to File an Appeal M o v a n t's final claim is that counsel failed to file an appeal despite Movant indicating h is desire to appeal. Movant acknowledges that counsel consulted with him about an appeal. (D k t. No. 1, Ex. 1, § 2255 Pet. 19.) "If counsel has consulted with the defendant, the

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q u e stio n of deficient performance is easily answered: Counsel performs in a professionally u n r e a s o n a b l e manner only by failing to follow the defendant's express instructions with re sp e c t to an appeal." Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000). While Movant c la im s that he insisted on an appeal, counsel avers that Movant never directed him to file an a p p e a l. (Dkt. No. 12, Attach. 2, Levine Aff. ¶ 18.) "Defendants seeking to set aside their s e n t en c e s pursuant to 28 U.S.C. § 2255 have the burden of sustaining their contentions by a preponderance of the evidence" McQueen v. United States, 58 F. App'x 73, 76 (6th Cir. 2 0 0 3 ) (citing Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)). "[C]ounsel is s tro n g ly presumed to have rendered adequate assistance." Strickland v. Washinton, 466 U.S. 6 6 8 , 690 (1984). The Court finds that Movant's evidence does not satisfy the burden of su stain ing his contention nor overcome the presumption of adequate assistance. Movant's o n ly other support for this claim is his allegation that "the record proves that the Movant w o u ld have wanted to appeal any sentence that involves the cocaine that he was unaware of an d any marijuana he was not directly involved in." (Dkt. No.16, at 2.) While the record in d ic a te s Movant's belief that he should not have been sentenced for the cocaine or the e n tire ty of the marijuana, it does not indicate Movant's desire to appeal. Considering M o v an t's lack of evidence and counsel's affidavit, the Court concludes that Movant's c o u n se l was not ineffective in failing to file an appeal. T h e files and records in this case conclusively show that Movant is entitled to no relief u n d e r § 2255. Accordingly, no evidentiary hearing is required to resolve the merits of the

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pending motion. For the reasons stated herein, Movant's motion to vacate, set aside, or c o rr e c t his sentence pursuant to 28 U.S.C. § 2255 will be denied. Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a c e r t i f ic a te of appealability to Movant. To warrant a grant of a certificate of appealability, M o v a n t "must demonstrate that reasonable jurists would find the district court's assessment o f the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 ( 2 0 0 0 ) . The Sixth Circuit Court of Appeals has disapproved of the issuance of blanket d e n ia ls of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). R a th e r, the district court must "engage in a reasoned assessment of each claim" to determine w h e th e r a certificate is warranted. Id. at 467. Upon review of each claim, the Court does not b e lie v e that reasonable jurists would find its assessment of Movant's claims debatable or w ro n g . Accordingly, a certificate of appealability will also be denied. A n order and judgment consistent with this opinion shall be entered.

Dated: August 17, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE