Pena-Marquez v. United States of America

Filing 16

MEMORANDUM OPINION AND ORDER Related document(s): 1 Motion to Vacate/Set Aside/Correct Sentence (2255) DENIED by Senior Judge James G. Carr (sju)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

LUIS CARLOS PENA-MARQUEZ,
Movant,
vs.

No. CV 16-00353 JGC/GJF
No. CR 15-04047 JGC

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody filed by Movant, Luis Carlos PenaMarquez, on April 27, 2016. (CV Doc. 1; CR Doc. 19). In his Motion, Pena-Marquez makes
three arguments: (1) that his conviction was obtained by a plea of guilty which was unlawfully
induced or not made voluntarily or with understanding of the charge and the consequences of the
plea; (2) that he received ineffective assistance of counsel; and (3) that he was denied the right of
appeal. (CV Doc. 1 at 2-4; CR Doc. 19 at 2-4). The Court determines that Pena Marquez
knowingly and voluntarily entered into the plea agreement, that he received effective assistance
of counsel, and that he waived his appeal right in the plea agreement. Therefore the Court denies
Pena-Marquez’s § 2255 Motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2015, Luis Carlos Pena-Marquez was charged with Reentry of a Removed Alien in
violation of 8 U.S.C. §§ 1326(a) and (b). (CR Doc. 10). Pena Marquez pled guilty under a Fast
Track Plea Agreement on November 16, 2015. (CR Doc. 13). The plea agreement provided that

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Pena-Marquez would receive an offense level reduction for acceptance of responsibility and an
additional offense level reduction pursuant to USSG § 5K3.1. (CR Doc. 13). Under USSG §
2L1.2, Pena-Marquez’s base offense level was 8 (Presentence Report (“PSR”) at ¶ 10). PenaMarquez was assessed a 16-level increase based on his prior felony drug trafficking conviction in
Arizona. (PSR at ¶¶ 11, 24). After the 3-level reduction for acceptance of responsibility and a 4level reduction under USSG § 5K3.1, Pena-Marquez’s total offense level was 17. (PSR at ¶ 19).
His total criminal history score was six, establishing a criminal history category of III. (PSR at ¶
27). The advisory guideline range was 30 to 37 months of imprisonment. (PSR at ¶ 50).
In the Fast Track Plea Agreement, Pena-Marquez also agreed to waive “the right to
appeal the defendant’s conviction(s) and any sentence, including any fine, at or under the
maximum statutory penalty authorized by law,” as well as “any collateral attach to the
defendant’s conviction(s) and any sentence including any fine, pursuant to 28 U.S.C. §§§ 2241,
2255, or any other extraordinary writ, except on the issue of counsel’s ineffective assistance.”
(CR Doc. 13 at 6). At the plea hearing, the Court and defense counsel reviewed the terms of the
Fast Track Plea Agreement with Pena-Marquez, and he stated that he understood the plea
agreement. (Doc. 10-1 at 1-13).
On February 22, 2016, the Court accepted the Fast Track Plea Agreement and sentenced
him to 30 months imprisonment. (CR Doc. 17, 18). Based on his arrest for unauthorized reentry,
the Arizona Probation Office filed a petition to revoke his supervised release in the Arizona
District Court. The petition was transferred to New Mexico. The Court sentenced PenaMarquez to twelve months imprisonment, with nine months to be served concurrently with and
three months to be served consecutive to his sentence in CR 15-04047 JGC. (See CR 16-01028
WJ, Doc. 5, 17).

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Pena-Marquez then filed his pro se § 2255 Motion on April 27, 2016. (CV Doc. 1; CR
Doc. 19). In his Motion, Pena-Marquez raises three ineffective assistance of counsel claims:
(1) he did not understand the consequences of pleading guilty due to ineffective
assistance of counsel;
(2) his counsel was ineffective in failing to object to sentencing enhancements; and
(3) he was denied his right to appeal due to ineffective assistance of counsel. (CV Doc. 1
at2-4; CR Doc. 19 at 2-4). The United States filed its Response in opposition to the § 2255
Motion on September 16, 2016. (CV Doc. 10; CR Doc. 27). Attached to the United States’
Response are the transcript of Pena-Marquez’s November 16, 2015 plea hearing (CV Doc. 10-1;
CR Doc. 27-1) and the Affidavit of Barbara A. Mandel, counsel for Pena-Marquez in his
criminal case (CV Doc. 10-2; CR Doc. 27-2). Through appointed counsel, Pena-Marquez then
submitted a Reply to the United States’ Response. (CV Doc. 14-1; CR Doc. 30-1). In the Reply,
Pena-Marquez specifically claims that his counsel rendered ineffective assistance by filing to
object to the 16-level enhancement under USSG § 2L1.2 and in failing to consider new
sentencing guidelines that were to take effect November 1, 2016. (CV Doc. 14-1 at 1-3; CR
Doc. 30-1 at 1-3).
II. ANALYSIS OF PENA-MARQUEZ’S CLAIMS
In essence, Pena-Marquez’s § 2255 Motion claims that he received ineffective assistance
of counsel in negotiating and entering into the Fast Track Plea Agreement and during the
sentencing phase of his criminal case. The Court has reviewed the Motion, answer, and the rule
7(b) expanded record. Under rule 8 of the Rules Governing Section 2255 Proceedings, the Court
determines that an evidentiary hearing is not warranted. The Court concludes that the record is
sufficient and fails to establish any claim of ineffective assistance of counsel.

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In order to establish a claim of ineffective assistance of counsel, a movant must
demonstrate: (1) that his counsel’s performance was deficient, and (2) that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish deficient performance, the challenger must show that counsel’s representation fell
below an objective standard of reasonableness. Id. at 688. To establish prejudice, the movant
must show there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. at 694. The likelihood of a different
result must be substantial, not just conceivable. Harrington v. Richter, 562 U.S. 86, 112 (2011).
Where the petitioner entered a plea of guilty or no contest, the petitioner must establish
that he would not have pled guilty had his attorney performed in a constitutionally adequate
manner. Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001). If a plea was intelligently
and voluntarily entered on advice of counsel and that advice was within constitutional standards,
the plea is deemed valid and there is no basis for federal habeas corpus relief. Akridge v.
Hopper, 545 F.2d 457, 458 (5th Cir. 1977). If there is sufficient evidence that counsel was not
ineffective in allowing the petitioner to enter into a plea, the petitioner is not entitled to habeas
corpus relief. Allen v. Mullin, 368 F.3d 1220, 1246 (10th Cir. 2004).
A. Pena-Marquez Did Not Receive Ineffective Assistance of Counsel in Entering
Into the Plea Agreement:
For Ground I, Pena-Marquez contends that, due to ineffective assistance of counsel, he
did not knowingly and voluntarily enter into the plea agreement. (CV Doc. 1 at 2-3; CR Doc. 19
at 2-3). Pena-Marquez entered into the Fast Track Plea Agreement on November 16, 2015. (CR
Doc. 13). The Fast Track Plea Agreement sets out, at length, Pena-Marquez’s understanding of
his rights and waiver of those rights, his understanding of the sentencing agreement, guidelines,
and penalties, his understanding of the immigration removal and immigration consequences, and
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his understanding of waiver of appeal rights and collateral review. (CR Doc. 13).The Fast Track
Agreement, itself, contains the following statements:
“The defendant understands the defendant’s right to be represented by an
attorney and is so represented. The defendant has thoroughly reviewed
all aspects of this case with counsel and is fully satisfied with that
attorney’s legal representation.” (CR Doc. 13 at 1, ¶ 1).
“The defendant agrees and represents that this plea of guilty is freely
and voluntarily made and not the result of force or threats or of
promises apart from those set forth in this plea agreement. There
have been no representations or promises from anyone as to what
sentence the Court will impose. The defendant also represents that
the defendant is pleading guilty because the defendant is in fact guilty.”
(CR Doc. 13 at 7, ¶ 10).
The record also contains the rule 11colloquy between Pena-Marquez and the Court at the
plea hearing held November 16, 2015. See CV Doc. 10-1; CR Doc. 27-1. Pena-Marquez stated
that he had been advised of his constitutional rights and understood that he was giving up those
rights, that he had discussed the plea agreement with counsel and was satisfied with the advice
and representation he had received, that the plea agreement had been read to him in Spanish, and
that he understood each and every term of the agreement. (CV Doc. 10-1; CR Doc. 27-1). Based
on the colloquy, the Court found that Pena-Marquez was competent and capable of entering an
informed plea, was aware of the nature of the charges and the consequences of the plea, and the
plea was knowing and voluntary. (CV Doc. 10-1 at 12, lines 11-14; CR Doc. 27-1 at 12, lines 1114).
In her Affidavit, Pena-Marquez’s counsel indicates that her discussions with PenaMarquez were conducted through a Spanish language interpreter, that she reviewed the
guidelines, the plea documents, and the presentence report (PSR) with him, that he stated his
understanding, signed all of the plea documents, and never indicated that he did not understand
the consequences of the plea or the agreement. Based on the discussions and the fact that Pena5

Marquez had two previous criminal cases in federal court, counsel believed that he did
understand and was competent to enter into the plea and Fast Track Plea Agreement. (CV Doc.
10-2; CR Doc. 27-2).
The record is sufficient to establish that Pena-Marquez knowingly and voluntarily entered
into the Fast Track Plea Agreement. Akridge, 545 F.2d at 458. Further, Pena-Marquez does not
contend that, but for a failure on his counsel’s part, he would not have pled guilty to the charges.
Miller v. Champion, 262 F.3d at 1072. Pena-Marquez has not shown that he received
constitutionally inadequate assistance of counsel in negotiating and entering into the Fast Track
Plea Agreement, and is not entitled to relief on that ground. Allen v. Mullin, 368 F.3d at 1246.
B. Pena-Marquez Did Not Receive Ineffective Assistance of Counsel in the
Sentencing Phase:
In Ground Two, Pena-Marquez contends that he received ineffective assistance of
counsel in the sentencing phase. Pena-Marquez argues that his counsel was ineffective because
she did not object to the 16-level enhancement in the sentencing guidelines and failed to consider
new guidelines that were to go into effect on November 1, 2016. (CV Doc. 14-1 at 1-3; CR Doc.
30-1 at 1-3). The record, however, does not show any sentencing error and counsel was clearly
effective in her representation of Pena-Marquez at sentencing.
At the time that Pena-Marquez was sentenced in February 2016, USSG §
2L1.2(b)(1)(A)(i) provided for a 16-level enhancement based on his prior removal after being
convicted of a felony drug trafficking offense in United States v. Pena-Marquez, D. Ariz. No.
CR 09-02693-001 TUC/DCB. Pena-Marquez does not contest the prior conviction or removal,
nor does he argue that USSG § 2L1.2 did not apply at the time his sentence was imposed.
Instead, he argues that his counsel should have anticipated the Tenth Circuit’s ruling in United

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States v. Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016) and raised the Martinez-Cruz objection
when he was sentenced seven months earlier. (CV Doc. 14-1 at 1-2; CR Doc. 30-1 at 1-2).
Pena Marquez also contends that his counsel should have requested a continuance of the
sentencing in order to determine whether new guidelines that were to take effect nine months
later might benefit him. (CV Doc. 14-1 at 3; CR Doc. 30-1 at 3). Pena-Marquez does not
identify any specific provision or provisions in the new guidelines, nor does he establish that
application of the new guidelines would have benefited him. Instead, the affidavit and argument
in the record show that his counsel had considered his exposure under the new guidelines and
determined that he would not benefit from them. The record shows no more than that, in
retrospect, application of the new guidelines “might” or “could” have benefited him. (CV Doc.
10-2 at 4, ¶ 9, CV Doc. 14-1 at 3; CR Doc. 27-2 at 4, ¶ 9, CR Doc. 30-1 at 3). Even if counsel
was ineffective in failing to object to the enhancement or consider application of the new
guidelines, the record does not establish a substantial likelihood of a different result. Harrington
v. Richter, 562 U.S. at 112.
Further, effective assistance of counsel under the Fifth Amendment does not require that
counsel raise novel arguments or anticipate changes in the law. Nor is hind-sight speculation
that a defendant might have received a lower sentence under different circumstances sufficient to
establish constitutionally deficient assistance of counsel. See Battle v. Workman, 353 F. App'x
105, 110 (10th Cir. 2009). Moreover, the record establishes that counsel obtained a combined
sentence of 33 months for the charges in CR 15-04047 JGC and the revocation of his supervised
release in CR 16-01028 WJ. That combined sentence was within the guidelines range and 13
months less than the sentence for his prior Arizona felony drug trafficking conviction in CR 09-

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02693-001 TUC/DCB. His counsel clearly provided constitutionally effective assistance in the
sentencing phase of this case. Strickland v. Washington, 466 U.S. at 687.
C. Counsel Was Not Ineffective in Failing to File an Appeal:
Last, for his Ground Three, Pena-Marquez claims that counsel was ineffective in not
appealing his sentence. The Fast Track Plea Agreement, however, contained a clear waiver of
appeal rights. The Fast Track Plea Agreement stated:
“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(s)
And any sentence . . .”
(CR Doc. 13 at 6, ¶ 7).
As set out, above, the record shows Pena-Marquez knowingly and voluntarily agreed to
the appellate waiver. United States v. Weeks, 653 F.3d 1188, 1197, n. 4 (10th Cir. 2011). Counsel
was not ineffective in failing to file an appeal in the face of that waiver. Further, Pena-Marquez
does not establish any legal error in his sentencing or show how he was prejudiced by any failure
to appeal. He was on notice of the sentencing range under the guidelines and received a sentence
within that range. (CR Doc. 13 at 2-5; Doc. 18). The fact that he received a longer sentence than
he now claims he expected does not establish any prejudice or miscarriage of justice. United
States v. Green, 405 F.3d 1180, 1191-94 (10th Cir. 2005). Pena-Marquez is not entitled to any
relief based on failure to appeal his sentence. United States v. Maldonado, 410 F.3d 1231, 123334 (10th Cir. 2005).
CONCLUSION
Pena-Marquez fails to show that he received ineffective assistance in violation of his
Fifth Amendment right to counsel. Strickland v. Washington, 466 U.S. at 687. The Court also
determines that, under rule 11(a) of the Rules Governing Section 2255 Cases, Pena-Marquez has
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failed to make a substantial showing that he has been denied a constitutional right. The Court
will deny a certificate of appealability.
IT IS ORDERED that the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or
Correct Sentence by a Person in Federal Custody filed by Movant, Luis Carlos Pena-Marquez,
on April 27, 2016 (CV Doc. 1; CR Doc. 19) is DENIED, a certificate of appealability is
DENIED under rule 11 of the Rules Governing Section 2255 Proceedings, and Judgment will be
entered.
/s/ James G. Carr
____________________________________
UNITED STATES DISTRICT JUDGE

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