Silva v. USA

Filing 11

ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). The Court declines to issue a certificate of appealability. Signed on 4/16/13 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
ROBERTO VALENZUELA SILVA,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:12-cv-0898-DGK

ORDER DENYING MOTION FOR POSTCONVICTION RELIEF AND
CERTIFICATE OF APPEALABILITY
This motion arises out of Movant Roberto Silva’s (“Movant” or “Silva”) conviction for
conspiracy to distribute 100 kilograms or more of marijuana. After pleading guilty pursuant to a
written plea agreement, the Court sentenced Movant to 135 months in prison, a sentence at the
low end of the guideline range.
Pending before the Court is Silva’s “Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence” (Doc. 1). Silva contends the Court should vacate his conviction and
guilty plea because his attorney provided ineffective assistance of counsel by convincing Silva to
plead guilty and give up his right to a jury trial. Silva claims his attorney induced him to plead
guilty by showing him a written, binding plea offer from the Government to serve 63 to 78
months imprisonment in return for pleading guilty, and by advising him that he would serve only
63 to 78 months. Both the Government and defense counsel deny any such deal was ever
contemplated.
The Court finds an evidentiary hearing is unnecessary and the motion should be denied
because defense counsel did not provide ineffective assistance of counsel. The Court also
declines to issue a certificate of appealability.

Procedural History
The following summary of the procedural history in the underlying criminal case draws
heavily from the Government’s Suggestions in Opposition (Doc. 8).
On September 9, 2009, a grand jury handed up a superseding indictment charging Silva
and others with (1) conspiracy to distribute 1,000 kilograms or more of marijuana, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and (2) aiding and abetting the possession with intent
to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B) and 18 U.S.C. § 2.
Multiple attorneys defended Silva against these charges. After the Court appointed
Phillip Gibson to represent Silva, Silva retained Patrick Berrigan. On February 10, 2010, Mr.
Berrigan withdrew and Silva retained Gregory Abella, who negotiated the plea agreement in this
case. On November 10, 2010, Mr. Abella withdrew and Phillip Gibson again became Silva’s
counsel.
While represented by Mr. Abella, Silva entered into a written, non-binding plea
agreement with the Government. On August 3, 2010, Silva plead guilty pursuant to that written
plea agreement. Under the agreement, Silva plead guilty to a lesser included offense in Count
One of the indictment, conspiracy to distribute 100 kilograms or more of marijuana in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. The statutory minimum for this offense was five
years rather than 10 years (Plea Tr. 10-12).
The plea agreement advised Silva of the correct statutory range of punishment for the
offense, between 5 and 40 years’ imprisonment (Plea Agrmt. 5). The agreement advised Silva
that dismissed conduct could be used to determine his applicable Sentencing Guidelines range;
that the Court would determine the applicable Guidelines range; that the Court could impose any
sentence authorized by law, including a sentence outside the Guidelines range; and the Court was
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not bound by any recommendation regarding the sentence (Plea Agrmt. 4, 5-6).

Silva

acknowledged and agreed that the Sentencing Guidelines are advisory and not binding on the
Court (Plea Agrmt. 8). The parties estimated that the base offense level would not be less than
level 26, and deferred to the sentencing hearing argument regarding the calculation of the base
offense level, any aggravating and mitigating factors, and the calculation of the criminal history
category (Plea Agrmt. 8-9).

The Government agreed to not seek a sentence above the

Sentencing Guidelines range (Plea Agrmt. 9).
During the change of plea hearing, Silva acknowledged he was in good physical and
mental condition (Plea Tr. 6). Defense counsel stated he went over the plea agreement with
Silva both in English and in Spanish (Plea Tr. 7). Silva stated he had communicated well with
both defense counsel, Mr. Abella and co-counsel Daniel Zarate, and he was satisfied with their
representation (Plea Tr. 8-9). Silva confirmed that he had sufficient time to consult counsel
regarding the plea and defenses, that it was his decision to plead guilty, and that no one else had
made that decision for him (Plea Tr. 9-10). Silva acknowledged understanding the statutory
range of punishment (Plea Tr. 11-12). He also acknowledged that the Court, and not defense
counsel, would calculate the advisory Sentencing Guidelines range, and that the Court was not
bound to follow the Guidelines (Plea Tr. 12-13). Silva stated he understood that the Court could
sentence him to any sentence within the statutory range of punishment (Plea Tr. 13). The Court
also advised, and Silva acknowledged, that any estimates regarding the Sentencing Guidelines
calculations were only estimates, and that no one would know the sentence until later (Plea Tr.
13). Silva stated he understood the plea agreement and had no questions (Plea Tr. 13-15). Silva
also agreed that “other than this plea agreement” no promises, threats, or coercion had been used
to cause him to plead guilty (Plea Tr. 15).

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The Court then advised Silva of the rights he would forfeit by pleading guilty (Plea Tr.
16-18). The Court engaged in a colloquy with Silva as it advised him of the constitutional rights
he was waiving. During this colloquy Silva made clear that he understood these rights included
the right to trial (including the right to cross-examine and present witnesses); the right to be
found guilty by a jury; and the right to appeal or collaterally attack his conviction, except in the
case of ineffective assistance of counsel. The plea agreement also contained written provisions
advising Silva that by pleading guilty he was waiving these constitutional rights (Plea Agrmt. 1112). Silva then made a factual basis for the plea (Plea Tr. 19-21). The Court accepted Silva’s
guilty plea (Plea Tr. 21).
In November 2010, Mr. Abella withdrew and Phillip Gibson began representing Silva in
preparation for the sentencing hearing. On January 25, 2011, the final presentence investigation
report (PSR) was issued. The PSR calculated a drug amount of 2,722 kilograms of marijuana,
resulting in a base offense level of 32 under U.S.S.G. § 2D1.1 (PSR ¶¶ 16-89, 94). The Court
assessed a three-level increase for Silva’s leadership role and a three-level reduction for
acceptance of responsibility resulting in a total offense level of 32 (PSR ¶¶ 95-104). The Court
also assessed three criminal history points, resulting in a criminal history category of II (PSR ¶¶
105-13).

This yielded an advisory Sentencing Guidelines range of 135 to 168 months

imprisonment, with a statutory mandatory minimum sentence of 60 months imprisonment (PSR
¶¶ 133-34).
On June 7, 2011, Silva appeared for sentencing with Mr. Gibson as counsel. Mr. Gibson
noted he had not negotiated the plea agreement, and that Silva was not satisfied with the plea
agreement previously negotiated by Mr. Abella (Sent. Tr. 4). Mr. Gibson noted, however, that
he and Silva had made a strategic chose not to move to withdraw the guilty plea for fear of losing
the three-level reduction for acceptance of responsibility (Sent. Tr. 4-5). Silva formally objected
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to the leadership role enhancement and noted that he intended to raise that issue in a § 2255
motion directed at Mr. Abella because “those issues could have been worked out prior to that
time.” (Sent. Tr. 5).
The Government noted that it had agreed with Mr. Abella, and now with Mr. Gibson, to
permit Silva to argue for a sentence outside the Sentencing Guidelines range, despite the
argument being foreclosed by the plea agreement (Sent. Tr. 6-7). The Government argued that
the Guidelines range was accurate and requested a sentence within that range (Sent. Tr. 7-9).
Defense counsel stated that Silva agreed with the drug quantities but continued to object to the
three-level leadership enhancement.
The Court agreed with the parties that a sentence at the low end of the Guidelines range
was appropriate and sentenced Silva to 135 months’ imprisonment (Sent. Tr. 13).
Silva subsequently filed a notice of appeal and then dismissed the appeal. He has timely
filed the present 2255 motion to vacate his conviction.
DISCUSSION
Movant raises a single claim of ineffective assistance of counsel. He contends Mr.
Abella provided ineffective assistance of counsel during the plea negotiation process by (1)
allegedly showing him a written plea agreement in which the government allegedly agreed to
give him 63 to 78 months imprisonment, and (2) advising him that the Court would sentence him
to 63 to 78 months imprisonment. Movant claims that had Mr. Abella properly advised him, he
would have insisted on a jury trial. Movant requests the Court vacate his conviction and require
the Government to offer a binding plea agreement of 63 to 78 months. In the alternative, he
requests an evidentiary hearing to prove his claim and expand the record.

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A.

Movant’s claim of ineffective assistance during plea negotiations is meritless.
To succeed on a claim of ineffective assistance of counsel, a movant must show that “(1)

trial counsel’s performance was so deficient as to fall below an objective standard of the
customary skill and diligence displayed by a reasonably competent attorney, and (2) trial
counsel’s deficient performance prejudiced the defense.” Armstrong v. Kemna, 534 F.3d 857,
863 (8th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687-94 (1984)). Thus, the
analysis contains two prongs, a performance prong and a prejudice prong. Failure to satisfy
either prong is fatal to the claim, and the court need not reach the performance prong if the
defendant suffered no prejudice from the alleged ineffectiveness. See Pryor v. Norris, 103 F.3d
710, 713 (8th Cir. 1997).
To establish prejudice, a movant must show that the outcome would have been different
had counsel’s performance not been deficient.

If the movant cannot show a reasonable

probability that the outcome would have been different, he cannot show prejudice. DeRoo v.
United States, 223 F.3d 919, 925 (8th Cir. 2000). 
Judicial review of trial counsel’s performance is highly deferential, “indulging a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
judgment.” Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006). Trial counsel’s “strategic
choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Strickland, 466 U.S. at 690. Strategic choices made in the shadow
of a lack of preparation or investigation, however, are not protected by the same presumption.
Armstrong, 534 F.3d at 864.
The two-part Strickland test applies to challenges to guilty pleas based on ineffective
assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). To establish such a claim, the

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movant must prove that the alleged plea agreement was formally offered by the Government.
Kingsberry v. United States, 202 F.3d 1030, 1032 (8th Cir. 2000).
In the present case, Silva has failed to demonstrate that the Government ever offered a
binding plea agreement for 63 to 78 months imprisonment, or that Mr. Abella even represented
that such a deal was available. On the contrary, the record conclusively establishes otherwise.
Mr. Abella has provided an affidavit stating that the only plea agreement that was shown to Silva
was the one Silva ultimately signed which did not contain an agreed upon sentence. This is
corroborated by Silva’s own testimony during the change of plea hearing when he testified that
no other promises or agreements had been made to him to induce him to plead guilty. It is also
consistent with Silva’s acknowledgment at the hearing that any estimates regarding his sentence
were not binding on the Court, and that the Court would determine his sentence.

The

Government has also indicated that it never proposed such a plea agreement, not would have it
entered into such an agreement in this case.
Additionally, defense counsel’s failure to accurately predict a sentence is not ineffective
assistance of counsel. Inaccurate advice about a likely sentence does not render a defendant’s
decision to plead guilty involuntary, so long as the defendant is informed of the statutory
minimum and maximum, and the court’s ability to sentence in that range. United States v.
Quiroga, 554 F.3d 1155-56 (8th Cir. 2009). Here both the plea agreement and the Court
informed Movant of the statutory minimum and maximum and cautioned him that the Court
could sentence him anywhere in that range.
Consequently, there is no merit to Movant’s ineffective assistance of counsel claim.
B.

No evidentiary hearing is required.
“A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless the

motion and the files and records of the case conclusively show that he is entitled to no relief.”
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Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation marks
omitted). “No hearing is required, however, ‘where the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon which it is based.’” Id. (quoting Watson
v. United States, 493 F.3d 960, 963 (8th Cir. 2007)); see also Sanders v. United States, 347 F.3d
720, 721 (8th Cir. 2003) (holding a § 2255 motion may be dismissed without a hearing if (1) the
petitioner’s allegations, accepted as true, would not entitle him to relief, or (2) the allegations
cannot be accepted as true because they are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact).
As discussed above, Movant’s claims are conclusively contradicted by the record.
Consequently, no evidentiary hearing is required or will be held.
C.

No certificate of appealability should be issued.
In order to appeal an adverse decision on a § 2255 motion, a movant must first obtain a

certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). District courts customarily address
this issue contemporaneously with the order on the motion. See Pulliam v. United States, No.
10-3449-CV-S-ODS, 2011 WL 6339840, at *4 (W.D. Mo. Dec. 16, 2011).
A certificate of appealability should be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
requires the movant to demonstrate “that reasonable jurists could debate whether (or for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 464 U.S. 800, 893 n.4 (1983)). In the
present case, the Court holds no reasonable jurist would grant this § 2255 motion, and so the
Court declines to issue a certificate of appealability.

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Conclusion
For the reasons discussed above, the motion (Doc. 1) is DENIED and the Court declines
to issue a certificate of appealability.
IT IS SO ORDERED.
Date:

April 16, 2013

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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