Baez-Gil v. USA

Filing 18

///ORDER denying 10 Amended 1 Motion to Vacate Sentence - 2255. Requested relief denied. Court declines to issue a certificate of appealability. The clerk of court shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Angel Baez-Gil
v.

Civil No. 12-cv-266-JL
Opinion No. 2013 DNH 083

United States of America
MEMORANDUM ORDER
This case involves the right to effective assistance of
counsel in the context of asserting an arguably novel theory in
plea negotiations or before the court.

Angel Baez-Gil pleaded

guilty to conspiracy to possess with intent to distribute
cocaine, see 21 U.S.C. §§ 841 and 846, and conspiracy to import
cocaine, see 21 U.S.C. §§ 952, 960, and 963.

He subsequently

filed a pro se motion attacking his conviction and sentence.
28 U.S.C. § 2255.

See

After the United States moved to dismiss, the

court appointed counsel to represent Baez-Gil.

He then amended

the petition to distill it to a single contention:

that defense

counsel provided ineffective assistance by failing to raise,
during plea negotiations or at sentencing, the issue of whether a
co-conspirator, who died after a cocaine-filled package she had
ingested while transporting the drug burst, had died from the
“use” of the drug.

See Mot. to Amend (document no. 10) at 2;

Obj. to Mot. of U.S. to Dismiss (document no. 11) at 3.

This

issue was critical, Baez-Gil argues, because her death from the
“use” of the drug subjected him to a mandatory minimum sentence

of 20 years’ imprisonment, whereas he would otherwise have faced
a mandatory minimum sentence of only 5 years.

See 21 U.S.C. §§

841(b)(1)(B), 960(b)(2).
Following Baez-Gil’s amendment, the parties agreed to a
briefing schedule by which they would submit this matter to the
court for decision.

See Status Report (document no. 14);

Assented-to Mot. to Permit Supp. Briefing (document no. 15).
Having carefully considered the parties’ submissions and heard
oral argument, the court denies Baez-Gil’s petition.

Even

assuming the proper interpretation of the statutory term “use”
excludes the ingestion of a drug in order to transport it, as
Baez-Gil argues, that is a novel proposition that has been
expressly rejected by one court and not endorsed by any authority
this court knows of.

Case law is uniform in holding that counsel

does not fail to provide effective assistance by “failing to
contemplate, or choosing not to advance, [a] novel theory,”
United States v. Davis, 406 Fed. Appx. 268, 271 (10th Cir. 2010),
so Baez-Gil has not shown his sentence was imposed in violation
of his right to the effective assistance of counsel.
I.

Applicable legal standard
Under 28 U.S.C. § 2255, a prisoner in federal custody may

move for relief from his conviction and sentence on the grounds
“that the sentence was imposed in violation of the Constitution
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or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject
to collateral attack.”

Where no evidentiary hearing is held on a

§ 2255 motion, the court “take[s] as true the sworn allegations
of fact set forth in the petition unless those allegations are
merely conclusory, contradicted by the record, or inherently
incredible.”

Owens v. United States, 483 F.3d 48, 57 (1st Cir.

2007) (internal quotation marks and citation omitted).
II.

Background
Baez-Gil and several others conspired to import cocaine into

the United States from the Dominican Republic.

Among the

conspirators were twin sisters Nelly and Mally Rodriguez, who
agreed to transport the cocaine into the United States by
swallowing a number of “fingers”–-which the court understands to
be either balloons or the snipped-off fingers of rubber gloves–each containing about 10 grams of cocaine.

Pursuant to this

plan, the sisters each swallowed about 40 fingers in Santo
Domingo, the capital and largest city of the Dominican Republic,
and flew to Boston, Massachusetts.

From there, they traveled by

taxi to the Park View Inn in Salem, New Hampshire, where they
drank laxatives to assist in passing the fingers.

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Not long after consuming the laxatives, Mally fell ill,
began vomiting, and lost consciousness.

After the Salem police

were summoned to the inn, they transported Mally to the hospital,
where she was pronounced dead.

The medical examiner determined

the cause of death to be acute cocaine intoxication.
The grand jury indicted Baez-Gil and his co-conspirators for
conspiracy to possess cocaine with the intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 846.
It subsequently handed up a superseding indictment charging the
same defendants with an additional count of conspiracy to import
cocaine into the United States, in violation of 21 U.S.C. §§
952(a), 960(a)(1), 960(b)(2)(B)(ii), and 963.

Each count of the

superseding indictment alleged that “the use of said cocaine
result[ed] in the death of Mally Rodriguez,” a fact that, if
proven, would have subjected Baez-Gil to a 20-year mandatory
minimum sentence under 21 U.S.C. §§ 841(b)(1)(B) and 960(b)(2).
On September 29, 2009, Baez-Gil, who was represented by
retained counsel, appeared before this court and entered pleas of
guilty to both counts of the superseding indictment.

He entered

those pleas pursuant to a plea agreement with the prosecution,
acknowledging that an element of both offenses was “that death
resulted from the use of the cocaine,” and that each offense
carried a mandatory minimum term of 20 years and a maximum term

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of life imprisonment.

The agreement further stipulated that,

absent the prosecution’s filing of a motion under 18 U.S.C.
§ 3553(e), “the defendant should be sentenced to serve 240
months imprisonment to be followed by five (5) years of
supervised release on Counts One and Two concurrently.”

It is

undisputed that neither of Baez-Gil’s two attorneys advised him
that he should not plead guilty to the “death resulting” element
of the offenses because a victim’s “intentional introduction of
encased ‘fingers’ into her alimentary canal solely for the
purpose of transporting the ‘fingers’ is not ‘the use’ of cocaine
as that term is contemplated in the drug statute.”
The court sentenced Baez-Gil on December 31, 2009.
Application of the United States Sentencing Guidelines yielded a
sentencing range of 168-210 months, which was raised to 240
months in accordance with the mandatory minimum just mentioned.
See U.S.S.G. § 5G1.1(b).

The court granted the prosecution’s

motion for a downward departure, see 18 U.S.C. § 3553(e);
U.S.S.G. § 5K1.1, and sentenced Baez-Gil to a term of 180 months
on each of the counts of conviction, to be served concurrently.
Baez-Gil, arguing that the 180-month sentence was unreasonable,
appealed his sentence to the Court of Appeals, which affirmed.
See United States v. Baez-Gil, No. 10-1104 (1st Cir. Apr. 11,
2011) (unpublished disposition).

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III. Analysis
The Sixth Amendment to the United States Constitution
guarantees a criminal defendant “the Assistance of Counsel for
his defence.”

U.S. Const. amend. VI .

The right to assistance

of counsel, as set forth in the Amendment, “is the right to the
effective assistance of counsel.”

Strickland v. Washington, 466

U.S. 668, 686 (1984) (emphasis added; internal quotation marks
and citation omitted).

As is the case with other constitutional

rights, the government can take actions that violate this right,
e.g., by interfering “with the ability of counsel to make
independent decisions about how to conduct the defense.”
686.

Id. at

Uncommonly, though, counsel may itself deprive a defendant

of this right “simply by failing to render adequate legal
assistance,” that is, assistance that is “reasonable considering
all the circumstances,” including “prevailing professional
norms.”

Id. at 686-88.

A petitioner alleging that counsel rendered constitutionally
inadequate representation bears “a highly demanding and heavy
burden.”

Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)

(quoting Williams v. Taylor, 529 U.S. 362, 393 (2000)).

He must

“show, by a preponderance of the evidence, that [his] trial
counsel’s conduct fell below the standard of reasonably effective
assistance and that counsel’s errors prejudiced the defense.”

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González-Soberal v. United States, 244 F.3d 273, 277 (1st Cir.
2001) (citing Strickland, 466 U.S. at 694; emphasis in original).
This two-part test “applies to challenges to guilty pleas based
on ineffective assistance of counsel,” Hill v. Lockhart, 474 U.S.
52, 58 (1985), like the challenge Baez-Gil raises here.
This court need not venture past the first prong of the test
to examine whether Baez-Gil’s defense was prejudiced by his
counsel’s alleged error, as his attorneys’ conduct did not fall
“below the standard of reasonably effective assistance.”

In

assessing the quality of representation under the first prong,
courts employ a highly deferential standard of review and “must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689; see also Knight, 447 F.3d at 15 (“It
is only where, given the facts known at the time, counsel’s
choice was so patently unreasonable that no competent attorney
would have made it, that the ineffective assistance prong is
satisfied.”).

Baez-Gil has not overcome this presumption.

At the core of Baez-Gil’s claim of ineffective assistance of
counsel is the proper interpretation of 21 U.S.C. §§ 841(b)(1)(B)
and 960(b)(2), both of which provide for a mandatory minimum
sentence of 20 years’ imprisonment “if death or serious bodily
injury results from the use of” the controlled substance either

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possessed or imported by a defendant.

As already noted, Baez-Gil

argues that the term “use” in these clauses does not include “the
swallowing of packaged drugs for the purpose of transportation.”
Pet’r’s Memo. of Law (document no. 16) at 4; see also id. at 7.
Instead, Baez-Gil says, the term “use” means the ingestion or
introduction of a controlled substance into one’s body “for the
purpose of obtaining the benefit or reaction from the drug”
(i.e., to take advantage of the drug’s narcotic or psychoactive
properties).

Obj. to Mot. to Dismiss (document no. 11) at 7.

By

failing to appreciate this interpretation of the statute and
advise him accordingly, Baez-Gil argues, his attorneys deprived
him of adequate representation.
Baez-Gil’s interpretation of the statutory term “use” is not
without merit.

That interpretation is certainly more consistent

with the common understanding of what it means to “use” a drug
than the United States’ proffered interpretation, which is that
the “use” of a drug is simply the “ingestion of a drug” through
“the act of snorting, injecting or swallowing,”1 no matter what
the ultimate purpose of this ingestion may be.
Memo. of Law (document no. 17) at 4.

Resp. to Pet’r’s

It is by no means clear,

though, that Baez-Gil’s interpretation is correct (or, for that

1

Or, presumably, through inhalation, topical application, or
any of the other myriad ways controlled substances are typically
introduced into the body.
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matter, that the United States’ interpretation is incorrect).
Baez-Gil has not cited, and the court has not found, any cases
that endorse his interpretation of §§ 841(b)(1)(B) and 960(b)(2).
As a matter of fact, it appears that only one court has directly
addressed what it means to “use” a controlled substance within
the meaning of either statute, and that court concluded that a
person who died after consuming a controlled substance in order
to conceal it from the police–-essentially the same reason Mally
Rodriguez consumed the cocaine Baez-Gil conspired to import and
possess–-had made “use” of the drug.

See United States v. Baker,

No. 05-cr-496, 2007 WL 148796, at *7-8 (E.D. Mo. Jan. 16, 2007).
This court need not resolve that issue itself at this time.
Assuming that Baez-Gil’s interpretation is the correct one, his
attorneys’ failure to apprehend that interpretation and advise
Baez-Gil of its ramifications did not constitute ineffective
assistance.

What is encompassed within the “use” of a controlled

substance for purposes of the offenses for which Baez-Gil was
convicted is not evident on the face of the statute and has not
yet been clarified by controlling case law.

“The Strickland

standard does not require counsel to be clever or inventive, or
to advocate a claim not yet announced in the law.”

Williams v.

Alabama, No. 07-cv-1276, 2012 WL 1339905, at *72 (N.D. Ala. Apr.
12, 2012); see also Davis, 406 Fed. Appx. at 271 (“Trial counsel

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was not deficient for failing to contemplate, or choosing not to
advance, [a] novel theory.”); Meeds v. Moore, No. 06-cv-25, 2008
WL 301978, at *2 (S.D. Ohio Feb. 1, 2008) (“Federal courts have
long recognized that an attorney’s performance is not deficient,
merely because he has failed to raise a novel argument, even
though that argument is subsequently adopted as the law.”).
Indeed, both the United States Supreme Court and the Court of
Appeals have held that defense attorneys who fail to detect and
raise a novel argument have not rendered ineffective assistance.
See Engle v. Isaac, 456 U.S. 107, 131-34 (1982) (the Constitution
“does not insure that defense counsel will recognize and raise
every conceivable . . . claim”); Choudry v. United States, 960
F.2d 143 (1st Cir. 1992) (unpublished) (declining to “fault
defense counsel for failing to raise [a] novel claim”); United
States v. Fusaro, 708 F.2d 17, 26-27 (1st Cir. 1983) (defense
counsel’s “failure to spot” a “novel claim” did “not render
counsel’s assistance below the range of competence of
attorneys”).
Because Baez-Gil has not carried his burden of showing that
his trial counsel’s conduct fell below the standard of reasonably
effective assistance,2 he has not shown that he was convicted and

2

The court notes that one of Baez-Gil’s co-conspirators, who
also had the benefit of counsel, likewise entered a plea
agreement stipulating that Mally Rodriguez’s death had resulted
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sentenced “in violation of the Constitution or laws of the United
States.”

Consequently, he is not entitled to relief under 28

U.S.C. § 2255.
IV.

Conclusion
For the foregoing reasons, Baez-Gil’s motion for relief

under 28 U.S.C. § 2255 is DENIED.

Because Baez-Gil has not made

a substantial showing of the denial of a constitutional right,
the court declines to issue a certificate of appealability.

See

28 U.S.C. § 2253(c)(2); Rule 11, Rules Governing Section 2254

from the use of the cocaine, and that he was therefore subject to
a 20-year mandatory minimum sentence. See Plea Agreement, United
States v. Rodriguez Brito, No. 09-cr-41-JL-1 (D.N.H. Aug. 20,
2009). Notably, the attorney representing that co-defendant is
on this court’s panel of attorneys who provide representation
under the Criminal Justice Act, and has been found qualified to
provide representation in complex criminal cases. That provides
some confirmation that the assistance rendered by Baez-Gil’s
attorneys did not fall below prevailing professional norms.
Further showing that Baez-Gil’s attorneys did not act
unreasonably in failing to recognize the issue is the opinion of
the United States Court of Appeals for the District of Columbia
Circuit in United States v. Shah, 453 F.3d 520 (D.C. Cir. 2006).
There, the court of appeals affirmed the district court’s
application of § 2D1.1(a)(2) of the United States Sentencing
Guidelines, which mandates a base offense level of 38 if “death
or serious bodily injury resulted from the use of” a controlled
substance, where the defendant’s co-conspirator, like Baez-Gil’s,
had died “after ingesting [the controlled substance] while
smuggling it” into the United States. Id. at 524. That neither
the court of appeals nor the trial court saw fit to question
whether this ingestion of the substance constituted the “use” of
the substance suggests that this conclusion is not so obvious
that any competent attorney should have seized on it.
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Cases; First Cir. L.R. 22.0.

The clerk of court shall enter

judgment accordingly and close the case.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated: June 4, 2013
cc:

Mark E. Howard, Esq.
Donald A. Feith, Esq.

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