Archuleta v. United States of America

Filing 17

REPORT AND RECOMMENDATIONS by Magistrate Judge Gregory J. Fouratt re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Richard A. Archuleta. Objections to R&R due by 7/12/2017. (jlr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.

No.

CV 16-967 JCH/GJF
CR 13-3143 JCH

RICHARD A. ARCHULETA,
Defendant-Movant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter is before me on Defendant’s Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody. Doc. 1. 1 The United States has filed
a response, Doc. 13, and Defendant has filed a reply. Doc. 16. Having reviewed the briefing and
being fully advised, I recommend the Motion be denied because each of its claims falls squarely
within the collateral attack waiver in the plea agreement that Defendant knowingly and
voluntarily entered into in this case. 2
I. Factual and Procedural Background
A. The Crimes and the Charges
On June 3, 2013, an Albuquerque Police Department (APD) officer stopped a vehicle
driven by Defendant for an expired temporary license tag. PSR ¶ 13. 3 The officer arrested
Defendant after learning that he was driving on a revoked license. Id. An inventory search of
the vehicle yielded a loaded .38 caliber handgun, additional ammunition, and four small baggies
1

Unless otherwise identified, all docket citations are to CV 16-967 JCH/GJF.
Before issuing this PFRD, I considered whether an evidentiary hearing was necessary, as instructed by Rule 8(a) of
the Rules Governing Section 2255 Proceedings for the United States District Courts. Because the outcome of this
Motion turns on matters of law and its disposition requires no further factual development, I concluded that no
evidentiary hearing was necessary.
3
As explained infra, there were three PSRs prepared in this case. Unless otherwise identified, all references to the
PSR are to its final version, disclosed in August 2015.
2

containing a substance that field-tested positive for methamphetamine.

Id.

At the time,

Defendant had already been convicted of the felony crimes of aggravated battery, attempted
kidnaping, false imprisonment, and failure to register as a sex offender. See Indictment, Cr. Doc.
2. 4 Consequently, Defendant was charged on September 25, 2013 by a federal grand jury for
possessing the firearm and ammunition as a previously-convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Id.
Despite the pending indictment and arrest warrant, Defendant was not arrested for
another ten months.

On August 7, 2014, APD detectives encountered Defendant at an

Albuquerque motel and arrested him. PSR ¶ 17. During a search incident to arrest, detectives
discovered that Defendant was carrying a loaded .40 caliber pistol on his hip. Id. On October 7,
2014, a superseding indictment charged Defendant with possessing the firearms and ammunition
seized on both occasions. Cr. Doc. 18. Count 1 involved the firearm and ammunition seized in
June 2013, and Count 2 did the same for those recovered in August 2014. Id.
B. The Form 13 Presentence Report
After the Court permitted Defendant’s first counsel to withdraw based on a breakdown in
attorney-client communication, a magistrate judge appointed Marc Grano, Esq., to represent
Defendant. Cr. Doc. 31. A Form 13 PSR was disclosed to the parties on December 4, 2014 to
assist them in understanding Defendant’s sentencing exposure for plea negotiation purposes.
The pre-plea PSR recommended that Defendant’s adjusted offense level should be 30 before
taking into account any credit for acceptance of responsibility. See Form 13 PSR ¶ 25. This
computation began with a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2), in view of
Defendant having committed the felon-in-possession offenses after sustaining at least two
convictions for felony crimes of violence. Id. ¶ 19. The PSR recommended that an additional
4

References to “Cr. Doc. __” are to CR 13-3143 JCH.

2

two levels be added under § 2K2.1(b)(4)(A), by virtue of the firearm in Defendant’s possession
in August 2014 having been stolen. Id. ¶ 20. The PSR further recommended that an additional
four levels be added under § 2K2.1(b)(6)(B) because the Defendant possessed the firearm in
June 2013 in connection with the felony methamphetamine evidence found in the same console
of the vehicle. Id. ¶ 21. The PSR also calculated Defendant to be in Criminal History Category
VI. Id. ¶ 41. Ultimately, the PSR computed Defendant’s guideline sentencing exposure (without
contemplating any credit for acceptance of responsibility) as 168-210 months. Id. ¶ 51. 5
C. The Plea Agreement
Armed with the guidance of the Form 13 PSR, the parties then entered into a written plea
agreement. Cr. Doc. 47. In relevant part, the plea agreement required Defendant to plead guilty
to Count 1 in exchange for the dismissal of Count 2. In addition, the parties stipulated that
Defendant should receive a reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility.
Cr. Doc. 47 ¶ 8a. The United States further agreed “to recommend a sentence no greater than
ninety-six months (96) months [sic] or eight years imprisonment.” Id., ¶ 8c. The parties
otherwise reserved their rights to litigate any other aspect of the Defendant’s sentence including
the applicability of any other sentencing guideline provision. Id. ¶ 8d.
Importantly, the agreement featured a section entitled “WAIVER OF APPEAL
RIGHTS[,]” which because of its centrality to the outcome of this Motion is worth quoting in
full:
The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a
Defendant the right to appeal a conviction and the sentence imposed.
Acknowledging that, the Defendant knowingly waives the right to appeal the
Defendant’s conviction and any sentence and fine within or below the applicable
advisory guideline range as determined by the Court. The Defendant specifically
agrees not to appeal the Court’s resolution of any contested sentencing factor in
5

I note that a three-level reduction for acceptance of responsibility under § 3E1.1 would have lowered the adjusted
offense level to 27, resulting in an adjusted guideline range of 130-162 months.

3

determining the advisory sentencing guideline range. In other words, the
Defendant waives the right to appeal both the Defendant’s conviction and the
right to appeal any sentence imposed in this case except to the extent, if any, that
the Court may depart or vary upward from the advisory sentencing guideline
range as determined by the Court. In addition, the Defendant agrees to waive any
collateral attack to the Defendant’s conviction and any sentence, including any
fine, pursuant to 28 U.S.C. §§ 2241 or 2255, or any other extraordinary writ,
except on the issue of counsel’s ineffective assistance in negotiating or entering
this plea or this waiver.
Id., ¶ 13 (emphasis added).
As part of the plea agreement, Defendant also acknowledged that he had “carefully
discussed every part of it with [his] attorney.” Id. 10. He further attested:
I understand the terms of this agreement, and I voluntarily agree to those terms.
My attorney has advised me of my rights, of possible defenses, of the sentencing
factors set forth in 18 U.S.C. § 3553(a), of the relevant Sentencing Guideline
provisions, and of the consequences of entering into this agreement. No promises
or inducements have been given to me other than those contained in this
agreement. No one has threatened or forced me in any way to enter into this
agreement. Finally, I am satisfied with the representation of my attorney in this
matter.
Id.
D. The Change of Plea Hearing
Defendant pleaded guilty pursuant to this agreement on May 20, 2015. See Clerk’s
Mins., Cr. Doc. 48, and Plea Hr’g Tr., Cr. Doc. 66. 6 During the plea colloquy, during which
Defendant answered the Court’s questions under oath and subject to the penalty of perjury, he
admitted that he was 38 years old and had two years of college credits. Plea Hr’g Tr. 3. He
denied being under the influence of any drugs or alcohol, or having any condition that interfered
with his understanding of the proceedings.

Id. 3-4.

He affirmed that he understood the

maximum penalties, id. 4, and that the sentencing judge would consult the advisory sentencing
guidelines in determining sentence. Id. 5. He further acknowledged that “[u]sually, a judge will
6

The transcript also appears as Exhibit 1 to the Government’s response to Defendant’s § 2255 motion. See Doc. 13.

4

sentence within that applicable range but there are times a judge will go above or below that
range and that will be upheld so long as it is a reasonable sentence.” Id. Defendant admitted that
his attorney had shared with him an estimate of the applicable range, but that the estimate could
be wrong.

Id.

Defendant understood the parties’ stipulation concerning acceptance of

responsibility and the Government’s agreement to recommend a prison term of 96 months,
although neither provision was binding on the sentencing judge. Id. 6. He acknowledged that,
apart from the parties’ single stipulation and the Government’s 96-month recommendation, the
parties reserved their rights to assert any other position or argument with respect to what the
sentence should be. Id. 7.
As to the appeal waiver, Defendant affirmed that he understood he was waiving his right
to appeal his conviction and sentence, that he had discussed it with his attorney, and that he knew
the waiver would be enforced. Id. 7-8. Government counsel reiterated his recommendation of a
96-month sentence and specifically alluded to the Form 13 PSR’s assessment that the adjusted
guideline range exceeded the statutory maximum sentence for a single count of violating 18
U.S.C. § 922(g)(1). Id. 9. Ultimately, Defendant acknowledged that he understood every term
of his agreement and affirmed that no one had made any different or additional promise besides
those contained in the written agreement. Id. 9-10. He professed satisfaction with his counsel’s
advice and representation. Id. 12.
After full advisement of his trial rights, id. 11-12, and Defendant’s confirmation of a
factual basis, id. 13-14, the court accepted his guilty plea, finding that:
[Defendant] is fully competent and capable of entering an informed plea. He’s
aware of the nature of the charge and the consequences of the plea, and this plea
of guilty is knowing, it’s voluntary and it is supported by an independent basis in
fact that contains all of the elements of the offense.
Id. 14. The court and counsel then agreed that a traditional PSR would need to be prepared. Id.
5

14-15.
E. The Two Post-Plea Presentence Reports
On July 10, 2015, the Probation Office disclosed the PSR. Although it would soon be
revised for reasons explained infra, this PSR also recommended the same offense level
calculations as had the Form 13 PSR, except this time awarding Defendant a three-level
reduction for acceptance of responsibility. See Original PSR ¶¶ 25-35. Importantly, this PSR
also recommended that the offense level be increased a total of six levels for possessing a stolen
firearm and possessing a firearm in connection with another felony as had the Form 13 PSR. Id.
¶¶ 26-27. An adjusted offense level of 27 and a criminal history category of VI yielded an
advisory guideline range of 130-162 months. Id. ¶ 83.
In light of the United States Supreme Court’s very recent decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), the Probation Office disclosed a revised PSR on August 17,
2015. 7 Recognizing that Defendant’s false imprisonment conviction no longer qualified as a
crime of violence under U.S.S.G. § 4B1.2(a), this PSR reduced Defendant’s base offense level to
20 pursuant to § 2K2.1(a)(4)(A). PSR ¶ 25. That was the only change in the offense level
computation, however, as this version of the PSR continued to recommend the same upward
adjustments for possessing a stolen firearm and possessing a firearm in connection with another
felony as had the two earlier PSRs. Id. ¶¶ 26-27. Giving Defendant credit for acceptance of
responsibility, this PSR recommended an adjusted offense level of 23, a criminal history
category of VI, and an advisory guideline range of 92-115 months. Id. ¶ 83.
The Court originally scheduled the sentencing hearing for August 25, 2015. Cr. Doc. 49.
The Court reset the hearing to September 17, 2015, after granting defense counsel’s motion for
additional time to review the late-disclosed PSR and otherwise prepare for sentencing. See Cr.
7

Defendant pleaded guilty on May 20, 2015. The Johnson decision was issued five weeks later, on June 26, 2015.

6

Docs. 50 (motion to continue sentencing) and 51 (order granting same).
F. The Sentencing Filings and Hearing
Neither party filed objections to the PSR, but both parties filed sentencing memoranda
prior to the hearing. The Government informed the Court that, although it had pledged in the
plea agreement to recommend a sentence of 96 months, it had no objection to a sentence of 92
months, given that 92 months was the bottom end of the recalculated guideline range. See Cr.
Doc. 52. For his part, defense counsel filed a 10-page sentencing memorandum in which he
requested a downward variance from the advisory guideline range. See Cr. Doc. 53. He
contended that the combination of Defendant’s extraordinary family circumstances, highlighted
by his wife’s physical and mental conditions, Defendant’s own medical condition, and
Defendant’s employment history should persuade the Court to arrive at a sentence lower than the
92-115 months that the PSR otherwise recommended. See id., passim.
At the sentencing hearing, defense counsel confirmed that he had no objections to the
PSR. Sntc’g Tr., Cr. Doc. 68, 4. 8 In his oral argument, defense counsel essentially repeated the
themes of his sentencing memorandum, offered a mitigating explanation of his client’s criminal
history, and asked for a sentence beneath the recommended range. See id. 5-11, 12-13, 16-18,
21. Again, he made no mention of either of the upward adjustments at issue in the instant § 2255
motion. When it was his turn to speak, Defendant told the Court that he was “well aware of the
consequences of the federal court systems and its sentencing guidelines.” Id. 11 (emphasis
added). He went on to say: “And now that I’m aware – clearly aware – of the sentencing
guidelines, I can say that in the future I will not possess a firearm or ammunition.” Id. (emphasis
added). He concluded by asking the Court to sentence him to “the lowest term of imprisonment
possible.” Id. 12.
8

The transcript also appears as Exhibit 2 to the Government’s response to Defendant’s § 2255 motion. See Doc. 13.

7

The Court sentenced Defendant to 92 months in prison, the lowest end of the adjusted
advisory range. Id. 23. The Court also reminded Defendant that he had waived his right to
appeal. Id. 27. The Court filed its judgment on September 24, 2015. See Cr. Doc. 55.
Having waived his right to do so, Defendant did not file a direct appeal. On August 26,
2016, however, he did file the instant § 2255 motion.
II. Defendant’s Claims
In his motion, Defendant asserts four discrete grounds for relief:
1. His counsel was ineffective for failing to investigate the facts and law regarding
Defendant’s prior convictions and whether he was a career offender, see Mot. 4;
2. His counsel was ineffective for refusing to honor Defendant’s request to object to ¶ 41
of the PSR because it miscalculated the sentence he served for the DWI conviction referenced
therein, resulting in the imposition of three criminal history points instead of two and a criminal
history category of VI instead of V, see Mot. 5;
3. His counsel was ineffective for refusing to honor Defendant’s request to object to the
four-level upward adjustment for possessing a firearm in connection with another felony offense,
see Mot. 6-7; and
4. His counsel was ineffective for refusing to honor Defendant’s request to object to the
two-level upward adjustment for possessing a stolen firearm, see Mot. 8.
For relief, Defendant requests that the PSR be corrected to conform with each of his
arguments and that he be re-sentenced to a guideline range that encompasses an adjusted offense
level of 17 and an adjusted criminal history category of V. See Mot. 12.
III. Government’s Response
The United States asserts that each of Defendant’s claims is barred by the waiver of

8

collateral attack that was contained in paragraph 13 of his plea agreement. See Govt. Rsp. to 28
U.S.C. § 2255 Motion (“Govt. Rsp.”) 5-9. The United States contends that each claim plainly
falls within the scope of the waiver, that both the guilty plea and the waiver itself were knowing
and voluntary, and that enforcing the waiver would not constitute a miscarriage of justice. See
id.

The United States further argues that, irrespective of the waiver, Defendant has not

established prejudice under the Strickland standard because nowhere does he claim that he would
have insisted on going to trial but for the alleged errors by his counsel. See id. 10-11.
IV. Defendant’s Reply
In his reply brief, Defendant seeks an even lower sentence, all the way down to 33-41
months. See Doc. 16 at 13. Although his reply brief consumed 14 pages, Defendant did not
address at all the Government’s position that each of Defendant’s claims is barred by the plea
agreement’s waiver of collateral attack. See Def.’s Rply., Doc. 16. Because his reply was utterly
silent on this point, I recommend that Defendant be deemed to have conceded that his claims are
barred.
Instead, Defendant primarily used his reply brief to raise two brand new claims: (1) that
his attorney was ineffective for failing to object to the use of his prior convictions for attempted
kidnaping and aggravated battery as a combined “crime of violence” under U.S.S.G. § 2K2.1,
see id. 6-9, and (2) that his attorney was ineffective for failing to object to the consideration of
the misdemeanor DWI conviction in PSR ¶ 41 on the basis that he was uncounseled in that case.
See id. 9-11. In addition to recommending that these belated claims be denied as foreclosed by
the waiver of collateral attack, I also recommend they be denied for two separate and alternative
reasons.

9

First, in the Tenth Circuit, “arguments raised for the first time in a reply brief are
generally deemed waived.” United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011)
(citation omitted). In Stump v. Gates, the Court explained the basis for this “rule of waiver”:
This court does not ordinarily review issues raised for the first time in a reply
brief. The reasons are obvious. It robs the appellee of the opportunity to
demonstrate that the record does not support an appellant’s factual assertions and
to present an analysis of the pertinent legal precedent that may compel a contrary
result. The rule also protects this court from publishing an erroneous opinion
because we did not have the benefit of the appellee’s response.
Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). The following year, in United States v.
Carpenter, the Court applied this rule in a federal habeas petition, holding that where an
argument was first propounded in a reply brief, “it is waived, notwithstanding the fact [it is filed
by] a pro se petitioner.” United States v. Carpenter, 24 F. App’x 899, 906 (10th Cir. 2001)
(unpublished) (citations omitted). The Court ratified the application of the waiver rule in habeas
proceedings as recently as 2011, when it again held that a reply brief “is not a proper vehicle to
raise a new issue.” United States v. Moya-Breton, 439 F. App’x 711, 715 (10th Cir. 2011).
Furthermore, district courts within the circuit have recognized the rule of waiver in
habeas proceedings and applied it. See, e.g., United States v. Myers, No. 12-CR-0196-02-CVE,
2016 WL 4479489, at *6–7 (N.D. Okla. Aug. 24, 2016) (unpublished) (“[T]he general rule is
that arguments raised for the first time in a reply to a § 2255 motion are waived.”) (citation
omitted); Rios-Madrigal v. United States, No. 2:05-CR-691, 2010 WL 918087, at *3 (D. Utah
Mar. 9, 2010) (unpublished) (“Because this argument was raised for the first time in [the
petitioner’s] reply brief, the argument is waived.”) (citation omitted); La Flora v. United States,
No. 03-10230-01-WEB, 2007 WL 1347694, at *1 (D. Kan. May 8, 2007) (unpublished) (“The
defendant’s argument raised for the first time in a reply brief is waived.”) (citations omitted).
There is a second independent reason why the Court should deny the new claims that
10

Defendant has waited until his reply brief to bring for the first time: they do not relate at all to
the specific claims brought in his original motion. Instead, they operate as the equivalent of a
new § 2255 motion. While they are couched as further examples of his counsel’s alleged
ineffective assistance, these new claims are founded on separate and discrete arguments. The
problem that Defendant has in trying to transplant these new arguments onto those in his initial
motion, however, is that these new claims are inexcusably late. Title 28, United States Code,
Section 2255(f) provides a defendant with a one-year period in which to file his motion.
Although this sub-section enumerates four events that could trigger the one-year clock, the
operative one here is found in § 2255(f)(1), specifically “the date on which the conviction
becomes final[.]” Because the claims that Defendant has now raised in his reply brief arise from
the same set of PSRs and the same sentencing hearing that gave birth to his original claims, he
cannot assert that he is entitled to any of the later dates set forth in §§ 2255(f)(2)-(4). As the
Court entered its Judgment on September 24, 2015, Cr. Doc. 55, Defendant had until September
24, 2016 in which to bring all of his claims. Yet he did not file his reply brief until April 13,
2017, which came nearly seven months too late.
Consequently, for the foregoing reasons, the Court should deny the two additional claims
in Defendant’s reply brief because they were raised for the first time in a reply brief and because
they were inexcusably late.

Furthermore, the Court should consider Defendant – by not

addressing the point at all – to have conceded the Government’s argument that all of his claims
are barred by the collateral attack waiver in his plea agreement.
V. Legal Standard Governing Waivers of Collateral Challenges
A “waiver of collateral attack rights brought under § 2255 is generally enforceable where
the waiver is expressly stated in the plea agreement and where both the plea and the waiver were

11

knowingly and voluntarily made.” United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir.
2001). However, “the constraints which apply to a waiver of the right to direct appeal also apply
to a waiver of collateral attack rights.” Id. In other words, “[a] plea agreement waiver of postconviction rights does not waive the right to bring a § 2255 petition based on ineffective
assistance of counsel challenging the validity of the plea or the waiver.” Id. at 1187 (emphasis
added). But collateral attacks based on ineffective assistance of counsel claims that challenge
anything else – including counsel’s performance leading up to and at sentencing – are waivable.
Id. at 1187-88.
Therefore, in reviewing whether to enforce the waiver of appellate or collateral attack
rights, the court must determine: (1) whether the disputed collateral attack falls within the scope
of the waiver of collateral attack rights; (2) whether the defendant knowingly and voluntarily
pleaded guilty and waived his collateral attack rights; and (3) whether enforcing the waiver
would result in a miscarriage of justice. See United States v. Hahn, 359 F.3d 1315, 1325-1327
(10th Cir. 2004).
When addressing the first prong of the analysis and determining a waiver’s scope, a court
must “strictly construe [the waiver] and any ambiguities in these agreements will be read against
the Government and in favor of a defendant’s appellate [and collateral attack] rights.” Id. at
1325. On the second prong, the defendant bears the burden of presenting evidence that he did
not knowingly and voluntarily enter into the plea agreement or understand the waiver of
collateral attack rights. Id. at 1329 (citing United States v. Edgar, 348 F.3d 867, 872-73 (10th
Cir. 2003)). And on the third and final prong, a court will enforce the waiver unless it finds that
doing so would constitute a miscarriage of justice. Id. at 1327. The Tenth Circuit has specified
that such a miscarriage of justice can occur only in four discrete situations:

12

1. Where the district relied on an impermissible factor such as race;
2. Where ineffective assistance of counsel in connection with the negotiation of
the waiver renders the waiver invalid;
3. Where the sentence exceeds the statutory maximum; or
4. Where the waiver is otherwise unlawful.
Id. (citations omitted). As for the fourth of these situations – whether the waiver is
otherwise unlawful – the Tenth Circuit requires the defendant to bear the burden of
demonstrating that “‘the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings[,]’ as that test was employed in United States v. Olano,
507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).” Id. (brackets in original);
accord United States v. Gonzalez-Huerta, 403 F.3d 727, 737 (10th Cir. 2005).
VI. Analysis
Applying the foregoing legal standards to the instant waiver, I recommend that
the Court find that each of the claims that Defendant has brought in his § 2255 motion
fall within the scope of the collateral attack waiver in his plea agreement. I further
recommend that the Court find that Defendant has not carried his burden of
demonstrating that his guilty plea or the instant waiver was either involuntary or
unknowing. Finally, I recommend that the Court find that Defendant has not carried his
burden of demonstrating that enforcing the waiver will result in a miscarriage of justice.
A. Defendant’s Claims Are within Scope of Waiver
The collateral attack waiver in Defendant’s plea agreement read as follows:
In addition, the Defendant agrees to waive any collateral attack to the Defendant’s
conviction and any sentence, including any fine, pursuant to 28 U.S.C. §§ 2241 or
2255, or any other extraordinary writ, except on the issue of counsel’s ineffective
assistance in negotiating or entering this plea or this waiver.

13

Plea Agrm’t, Cr. Doc. 47, ¶ 13 (emphasis added). As written, this waiver comports with
the exceptions set out by the Tenth Circuit in Cockerham and Hahn. In other words, by
agreeing to this waiver, Defendant gave up his legal right to collaterally attack every
instance of ineffective assistance of counsel except for those that relate to his counsel’s
assistance in the narrow context of negotiating or entering the Defendant’s guilty plea or
the waiver itself.
Because Defendant is pro se, I consider his claims liberally but I am forbidden
from substituting myself as his attorney or making claims for him which he has not made
for himself. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe a [pro
se litigant’s] arguments liberally; this rule of liberal construction stops, however, at the
point at which we begin to serve as his advocate.”). Liberally construed, his motion
asserts the following claims:
1. His counsel was ineffective for failing to investigate the facts and law regarding
Defendant’s prior convictions and whether he was a career offender. See Mot. 4.
2. His counsel was ineffective for refusing to honor Defendant’s request to object to ¶ 41
of the PSR because it miscalculated the sentence he served for the DWI conviction referenced
therein, resulting in the imposition of three criminal history points instead of two and a criminal
history category of VI instead of V. See id. 5.
3. His counsel was ineffective for refusing to honor Defendant’s request to object to the
four-level upward adjustment for possessing a firearm in connection with another felony offense.
See id. 6-7. Defendant asserts that he should not have been subject to that enhancement because
(a) he was never “bound over” to state district court on this charge, (b) the case was dismissed

14

for lack of prosecution by the Metropolitan Court, and (c) the Government cannot prove the
substance in the four baggies located near the firearm in the car he was driving when arrested in
June 2013 was methamphetamine. See id. 6-7, 17.
4. His counsel was ineffective for refusing to honor Defendant’s request to object to the
two-level upward adjustment for possessing a stolen firearm. See id. 8. Defendant contends that
this enhancement was improper because the only firearm that was stolen was the one identified
in Count 2, a count that was dismissed pursuant to the plea agreement. Id. Defendant asserts
that he cannot be punished for conduct associated with a charge of which he was not convicted.
Id. 9
All of these claims relate to the application of the Sentencing Guidelines to Defendant’s
case and his counsel’s alleged failure to object thereto. As such, these claims are criticisms of
his counsel’s performance leading up to and at sentencing. None of his complaints, not even
when liberally construed in the light most favorable to preserving his right to collaterally attack
his sentence, addresses counsel’s performance in negotiating the guilty plea itself or the waiver it
included.
I reach the conclusion that Defendant’s complaints are borne out of dissatisfaction with
9

Defendant makes two other claims that require little effort for the Court to deny. Defendant alleges as to each of
the four discrete claims in his opening motion that he did not appeal their outcome because his counsel did not
advise him of the “ten-day rule to file a notice of appeal.” See Mot. 5, 6, 8, 9, 16. I do not know specifically what
Defendant is referring to in each of these assertions, but it is not necessary to inquire further. If Defendant is
complaining that his attorney did not advise him of his right to appeal his sentence directly to the Tenth Circuit, that
would not have been an error at all since Defendant knowingly and voluntarily gave up that right in his plea
agreement. See Cr. Doc. 47, at ¶ 13; see also Cr. Doc. 66, at 8. And he was reminded by this Court at sentencing
that he had waived his right to appeal. See Cr. Doc. 68, at 27. Or perhaps Defendant simply misunderstood the fillin-the-blank form that he used for his opening motion. Regardless, the claims he raises in his motion are designed to
be brought (unless waived) first in a § 2255 motion and, since they are still pending before this Court, they are not
yet ripe for any appeal. See, e.g., United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (“Ineffective
assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought
on direct appeal are presumptively dismissible, and virtually all will be dismissed.”). Defendant also makes a claim
that his sentence violated the decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151 (2013). See Doc. 16 at
11-12. Because Alleyne dealt with the procedure for fact-finding associated with mandatory minimum sentences,
and because the felon-in-possession statute at issue here featured no such sentence, this claim is irrelevant and does
not merit further consideration.

15

his sentence, rather than his guilty plea, for two principal reasons. The first is the Tenth Circuit’s
decision in Cockerham. There, in spite of a plea agreement in which he waived his right to
pursue any post-conviction or habeas corpus relief, Cockerham nonetheless filed a § 2255
motion alleging that his attorney had been ineffective for failing to object at sentencing to the
absence of proof as to whether the methamphetamine in question was D-methamphetamine or Lmethamphetamine. Id. at 1187. The Tenth Circuit held that the defendant had waived this claim
because it challenged only his sentencing as opposed to the validity of his guilty plea or the
waiver itself. Id. at 1188. That analysis is controlling here, as well. Just like Cockerham’s,
Defendant’s criticism of his counsel can be boiled down to: “You should have objected to the
application of these various guideline provisions to my sentence, either because they did not
apply at all, or because they were erroneously applied, or because the Court did not have
sufficient evidence before it to find that they applied.” These are sentencing stage claims, not
change-of-plea stage claims, and they should meet with the same fate as did Cockerham’s.
I also derive significant support for my analysis and conclusion from the language of the
plea agreement itself. The only relevant reference to the U.S. Sentencing Guidelines in the plea
agreement was a routine stipulation to acceptance of responsibility under § 3E1.1. Plea Agrm’t,
Cr. Doc. 47, ¶ 8a. There were no other stipulations to how or whether other guideline provisions
would apply, including any of the ones that Defendant now invokes in his motion. Instead, the
parties specifically “reserve[d] their rights to assert any position or argument with respect to the
sentence to be imposed, including but not limited to the applicability of particular sentencing
guidelines, adjustments under the guidelines, departures or variances from the guidelines, and
the application of factors in 18 U.S.C. § 3553(a).” Id., ¶ 8d (emphasis added). Accordingly, it is
patently clear that, apart from the Government’s promise to recommend 96 months and the

16

parties’ stipulation to acceptance of responsibility, the parties specifically left open to later
litigation every other sentencing issue that could apply to a guilty plea to Count 1 of the
superseding indictment. Because each of Defendant’s claims relates to the application of a
guidelines provision that was implicitly yet specifically left open in the plea agreement, none of
the claims can fairly be read as attacking defense counsel’s performance in negotiating the guilty
plea or the waiver. 10
Defendant’s own words at the change-of-plea hearing make it further clear that his
complaints about his lawyer arose only later and in association with his sentencing hearing.
After all, under oath and in response to Chief Magistrate Judge Molzen’s question, Defendant
swore that – at least at the time of the plea hearing – he was satisfied with his counsel’s advice
and representation. See Cr. Doc. 66, at 12. He attested to the same satisfaction in his written
plea agreement. See Cr. Doc. 47 at 10.
For all of these reasons, I recommend that the Court find and conclude that Defendant
waived each of the foregoing claims because none of them relate to his counsel’s alleged
ineffective assistance in negotiating or entering the guilty plea or the waiver itself.
B. No Showing that Defendant’s Guilty Plea or Waiver Was Involuntary
The defendant bears the burden of presenting evidence that he did not knowingly and
voluntarily pled guilty or understand the waiver of collateral attack rights. Hahn, 359 F.3d at
1329 (citing United States v. Edgar, 348 F.3d 867, 872-73 (10th Cir. 2003)). Defendant has
made no such showing here.
The three documents filed by Defendant in relation to his § 2255 motion comprise a total

10

Significantly, Defendant has never alleged anywhere in his briefing that, but for counsel’s alleged errors, he
would not have entered this plea agreement. To repeat, his dissatisfaction with his attorney’s performance has
nothing to do with the negotiation of the plea agreement or the waiver, but everything to do with how his counsel
represented him after the entry of the plea and leading up to and at the sentencing hearing.

17

of 58 pages.

In all of those pages, the only reference that Defendant made to anything

approaching the voluntariness of his plea is found in his “Memorandum of Law in Support of
Movant’s Previously Filed 2255 Motion:”
A plea cannot be considered voluntary without adequate notice of the nature of
the charges against him. As the court has repeatedly explained[,] it is the
constitutional duty of the District Court to ensure that the plea is knowing,
voluntary, and intelligent.
Doc. 2 at 9 (citations omitted). Defendant then wrote: “The defendant’s burden is to show a
reasonable probability that he would not have entered a plea had he been properly advised.” Id.
at 10.
But Defendant says nothing more. Most especially, he does not assert – anywhere, even
in his reply brief – that his plea was involuntary. He does not assert – anywhere, even in his
reply brief – that he would not have pleaded guilty and would have insisted on going to trial, but
for his counsel’s alleged shortcomings. 11 He does not assert – anywhere, even in his reply brief
– that he would not have entered into the plea agreement but for his counsel’s allegedly deficient
performance.

Furthermore, in the excerpted paragraph above, he referenced only the

requirement that a defendant receive “adequate notice of the nature of the charges against him.”
Doc. 2 at 9. Defendant certainly cannot complain about that on the record of this case. He was
arraigned on both the original and superseding indictments, during which he was advised of the
charges and the maximum penalties. See Cr. Docs. 9, 22 (clerk’s minutes of arraignments). His
plea agreement plainly set forth the charge to which he was pleading guilty and the maximum

11

I am not surprised that Defendant has not made such a claim. After all, from the facts set forth in the various
PSRs, it appears that Defendant had no reasonable defense to the charges. See, e.g., PSR ¶¶ 13-14, 17-18. One
firearm was found in the console of the vehicle he was driving and he admitted to possessing it. The other firearm
was found on his hip when he was arrested. Given his two years of college credits, noteworthy intellect, and long
seasoning in the criminal justice system, Defendant no doubt knew that his best approach in this case would be to
plead guilty, offer evidence in mitigation, and ask the Court for leniency. Which is precisely, with his counsel’s
advice, what he did. Even now, the only relief that Defendant is seeking is to be re-sentenced, not permitted to
withdraw his guilty plea and go to trial.

18

penalties. See Cr. Doc. 47, ¶¶ 3-4. At his change of plea hearing, Defendant was re-advised of
the charge against him and the maximum penalties. See Cr. Doc. 66 at 4-5. There can be no
question that, prior to pleading guilty, Defendant knew the charges against him and the
maximum penalties they carried.
It is worth emphasizing that this case was not Defendant’s maiden voyage in the criminal
justice system. To the contrary, his PSR demonstrates that he has had at least thirteen cases in
the criminal justice system, nine of which resulted in conviction, the earliest dating back some 20
years. See PSR ¶¶ 38-54. Furthermore, Defendant is intelligent and was enrolled in college
courses at CNM at the time of his arrest, points made by his attorney at sentencing. See Cr. Doc.
68 at 12-13. 12 This combination of experience in the criminal justice system and his native
intelligence enabled him to understand better than most the crime he committed and the
consequences in federal court for having done so. See id. at 11 (Defendant advising the Court
that he is “well aware of the consequences of the federal court systems and its sentencing
guidelines.”).
It is also worth emphasizing that, by the time he addressed the Court at his sentencing
hearing, Defendant had been on notice for more than nine months – since the disclosure of the
Form 13 PSR – that the Probation Office was recommending the combined six-level upward
adjustment for possessing a stolen firearm and possessing a firearm in connection with another
felony. When he pleaded guilty, Defendant swore to Chief Magistrate Judge Molzen that there
were no other promises or inducements made to him other than those contained in the written
plea agreement, and that he and his attorney had discussed (no doubt with the benefit of the Form
13 PSR) the relevant sentencing guideline provisions. As he prepared to speak at his own

12

Furthermore, at his plea hearing, Defendant advised Chief Magistrate Judge Molzen that he had two years of
college credits. See Cr. Doc. 66 at 3.

19

sentencing hearing, Defendant further knew that the Probation Office had recommended the
application of the same two upward adjustments in its first post-plea PSR in July and again five
weeks later with the disclosure of the final version of the PSR. He was also aware that his
lawyer had filed no objections to the PSR and that the sentencing memorandum filed on his
behalf was silent on either of these adjustments. Finally, just seconds before he began to speak,
Defendant heard his lawyer reaffirm that there were no objections to the PSR and merely echo
the themes of the sentencing memorandum in arguing for a below-guideline sentence.
Defendant now claims that he had been telling his lawyer all along to object on the
grounds that he himself had identified. See, e.g., Mot. 5, 6, 8. He claims his lawyer had
promised him that he would file a motion to make those objections. See id., 16-17. He further
claims that – at the sentencing hearing – his lawyer told him that he hadn’t had the time to file
the motion. See id., 18. If the claims that Defendant now makes in his § 2255 motion are true,
however, one would think that Defendant would have said something quite different during his
sentencing allocution. One might expect that Defendant would have said something along the
lines of:

“Your Honor, my lawyer and I have discussed whether my sentence should be

increased because of these disputed guideline provisions. I don’t think they apply to me and he
promised to object to them. I don’t understand why he hasn’t done so.” But Defendant did not
say those words or anything close to them. Instead, he told the Court that he was “well aware of
the consequences of the federal court systems and its sentencing guidelines.” Id. 11 (emphasis
added). He went on to say: “And now that I’m aware – clearly aware – of the sentencing
guidelines, I can say that in the future I will not possess a firearm or ammunition.” Id. (emphasis
added). He concluded by asking the Court to sentence him to “the lowest term of imprisonment
possible.” Id., 12.

20

At no point did Defendant mention any of the upward adjustments or criminal history
increases that he now claims to have debated with his lawyer in the lead-up to sentencing. This
is further evidence pointing strongly to the conclusion that Defendant entered into a plea
agreement that included a waiver of collateral attack rights, and then subsequently pleaded guilty
pursuant to that agreement, in a knowing and voluntary fashion. His complaints arose only after
his guilty plea.
For these reasons, I recommend that the Court find and conclude that Defendant did not
carry his burden of demonstrating that his guilty plea or the waiver of collateral attack rights was
unknowing or involuntary.
C. Enforcing the Waiver Will Not Result in Miscarriage of Justice
As set forth supra at 10, Hahn enumerated four situations in which enforcing an appellate
or collateral attack waiver would constitute a miscarriage of justice.

Analyzing them

individually for any applicability to this case, I can quickly rule out that this Court relied on any
impermissible factor, such as race, in determining Defendant’s sentence. Indeed, Defendant
makes no such claim. Next, at no point in his briefing has Defendant ever criticized his counsel
for negotiating the waiver that the Government is now seeking to enforce. Third, the 92-month
sentence that Defendant received is well below the 120-month statutory maximum permitted by
18 U.S.C. § 924(a)(2).
That leaves us with the fourth and final situation identified by the Tenth Circuit: whether
the waiver is otherwise unlawful. For numerous reasons, I recommend that the Court conclude
that there is no reasonable set of circumstances under which Defendant’s 92-month sentence
could be viewed as “seriously affecting the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993). First is the direction and

21

guidance from Hahn itself, which held that “[s]ubjecting [a defendant] to a sentence sanctioned
by Congress does not constitute an error seriously affecting the fairness, integrity, or public
reputation of judicial proceedings.” 359 F.3d at 1329. This result is even more applicable here
because, in Hahn, the Tenth Circuit found that a consecutive sentence of 24 years on top of
another 40-year sentence was not a miscarriage of justice. Id. Here, in contrast, the differences
between the sentence that Defendant received (92 months), the one he might have received if his
criminal history category had appropriately been calculated at V instead of VI (84 months), and
the one he argued in his opening motion he should have been entitled to (46-57 months, see
Def.’s § 2255 Mot., Doc. 1, at 12) are substantially smaller by comparison.
Second, Defendant’s complaints that his attorney should have objected to the use of any
of his prior convictions as crimes of violence under U.S.S.G. § 2K2.1(a)(4)(A) suffer from a
sequencing flaw. Defendant claims that the Supreme Court’s Johnson decision should have
impelled his lawyer to object. See Def.’s Rply., 6-9. But that is a complaint about counsel’s
performance at the sentencing stage, not the plea negotiation stage. After all, Johnson was not
issued until June 26, 2015, some 36 days after Defendant pleaded guilty. His counsel certainly
cannot be faulted for not having read the Supreme Court majority’s mind even before it made it
up. Furthermore, counsel had no reason to delve deeply into the facts and circumstances of
Defendant’s prior felony convictions because – at least up to the point at which the Johnson
decision was issued – the residual clause in § 2K2.1(a)(4)(A) was still alive and clearly
encompassed at least two of his prior felony convictions. See Original PSR ¶ 25.
Third, the only legitimate error Defendant complains of was the over-weighting of his
prior DWI conviction described in ¶ 41 of the PSR. The Government concedes that the PSR
erroneously attributed 3 criminal history points to this conviction when it deserved only 2. See

22

Gov’t Rsp., Doc 13, at 6. The Government further concedes that this single point should have
bumped Defendant down into Criminal History Category V instead of VI. Id. Nonetheless, this
error need not be corrected because it comes nowhere close to the kind of error that “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at
732. After all, this error would have resulted in an advisory range of 84-105 months, instead of
92-115 months. The sentence that Defendant received – 92 months – is still on the lower end of
what should have been the correct advisory range.

This sentencing disparity is virtually

infinitesimal compared to the one at issue in Hahn. See also United States v. Madrid, 805 F.3d
1204, 1212 (10th Cir. 2015) (requiring for a sentencing guidelines error to “seriously affect the
fairness, integrity, or public reputation of judicial proceedings” that “correct application of the
sentencing laws would likely significantly reduce the length of the sentence”) (emphasis added),
abrogated on other grounds by Beckles v. United States, 137 S.Ct. 886 (2017).
Fourth, if put to an evidentiary hearing, the Court would have had little trouble finding by
a preponderance of the evidence that Defendant possessed the firearm in June 2013 in connection
with the methamphetamine possession or distribution evidence found in the same console. See
PSR ¶ 27. Although Defendant complains that the suspected methamphetamine was not sent to a
crime lab for confirmatory testing, that level of scientific certainty is not required.

A

presumptive positive field test, combined with officer testimony about the appearance,
characteristics, and packaging of the substance, would have been more than sufficient to sustain
a finding that requires only a preponderance of the evidence to make. And whether the charge
was ever “bound over” to a state district court is immaterial, as it is black-letter law that
methamphetamine possession, not to mention distribution, is a felony crime under New Mexico
statute. See N.M.S.A. §§ 30-31-20A(2)(C) (making distribution of methamphetamine a second-

23

degree felony) and 30-31-23D (making simple possession of methamphetamine a fourth-degree
felony).
Fifth, even in the face of a proper objection, the Court would still have imposed the twolevel upward adjustment under U.S.S.G. § 2K2.1(b)(4) for possessing a stolen firearm, even
though this firearm was charged in a count of the superseding indictment to which Defendant did
not plead guilty. See PSR ¶ 26. After all, a court may consider in arriving at its sentence
conduct that was never charged, or even acquitted conduct, not to mention crimes dismissed via
a plea bargain. What is more, by its plain language, § 2K2.1(b)(4) is not restricted in scope to
the narrow facts of the offense to which Defendant pleaded guilty. Instead, it requires the twolevel increase “[i]f any firearm was stolen[.]”

U.S.S.G. § 2K2.1(b)(4).

This language

necessarily implies that this guideline takes a broad view of firearms offenses and the relevant
conduct for which a defendant can be held responsible. Furthermore, because the Sentencing
Guidelines are merely advisory, the Court could always have considered under 18 U.S.C. §
3553(a) relevant information that was not specifically countenanced by the Guidelines.
For all of these reasons, I recommend that the Court find and conclude that enforcing the
waiver in this case will not constitute a miscarriage of justice because Defendant has not proven
that his counsel’s ineffectiveness led to sentencing error that “seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings.” Hahn, 359 F.3d at 1329.
VII. Conclusion
Each of the claims in Petitioner’s Motion falls within the scope of his waiver of collateral
attack rights in his plea agreement. Furthermore, Defendant has not met his burden of showing
that his guilty plea or the waiver of collateral attack rights was involuntary or unknowing. In
addition, it is clear that enforcing the waiver and dismissing the instant motion will not constitute

24

a miscarriage of justice under governing law. Finally, Defendant should be deemed to have
conceded the applicability of the collateral attack waiver when it was clearly invoked by the
Government in its response brief and Defendant did not address it at all in his reply brief. I
recommend that the Court enforce the waiver.
For the foregoing reasons, I recommend that Defendant’s Motion be DENIED and this
case DISMISSED WITH PREJUDICE.
IT IS SO RECOMMENDED.

__________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they may
file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1)(c). Any request for an extension must be filed in writing no later than seven days
from the date of this filing. A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party wants to have appellate
review of the proposed findings and recommended disposition. If no objections are
filed, no appellate review will be allowed.

25