Orozco-Sanchez v. United States of America

Filing 55

MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Chief District Judge William P. Johnson (meq)

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

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.

CIV 16-0762 WJ/KBM
CR 15-1557 WJ

CIRILO OROZCO-SANCHEZ,
Defendant-Movant.

MEMORANDUM OPINION AND ORDER ADOPTING
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the following: the Magistrate Judge’s
Proposed Findings and Recommended Disposition (PF&RD), filed September 3, 2018
(Doc. 65); Mr. Orozco-Sanchez’s Objections to the Magistrate Judge’s Proposed
Findings of Fact and Recommended Disposition, filed September 27, 2018 (Doc. 73);
the United States’ Objections to the Court’s Proposed Findings of Facts and
Recommended Disposition, filed September 27, 2018 (Doc. 74); the United States’
Response to Defendant’s Objections, filed October 25, 2018 (Doc. 79); and Mr. Orozco[Sanchez]’s Response to the Government’s Objections to the Magistrate Judge’s
Proposed Findings of Fact and Recommended Disposition, filed October 29, 2018
(Doc. 80).1 By Order of Reference entered July 5, 2016, this matter was referred to
Magistrate Judge Karen B. Molzen to conduct hearings, if warranted, including

Citations to “Doc.” refer to docket numbers filed in Criminal Case No. 15-1557 WJ. For
documents filed in only the civil case, the Court uses the full citation.
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evidentiary hearings, and to perform any legal analysis required to recommend to the
Court an ultimate disposition of this habeas action. Orozco-Sanchez v. United States,
16cv0762 WJ/KBM, Doc. 2 (D.N.M. July 5, 2016).
Judge Molzen held an Evidentiary Hearing on Cirilo Orozco-Sanchez’s (“Mr.
Orozco-Sanchez’s”) Section 2255 Motion on January 12, 2018. Mr. Orozco-Sanchez
was present with his counsel, James Loonam, and the Court’s certified staff interpreters
provided simultaneous Spanish translation of the proceedings. Assistant United States
Attorney Dustin Segovia appeared for the United States. The Court heard testimony
from both Mr. Orozco-Sanchez and his trial counsel, Ms. Margaret Strickland. Postevidentiary hearing briefing was completed by the parties on June 7, 2018, and Judge
Molzen issued her PF&RD on September 3, 2018, wherein she recommended that Mr.
Orozco-Sanchez’s Section 2255 Motion be denied. Both parties filed Objections to
Judge Molzen’s PF&RD as well as Responses to Objections. While Mr. OrozcoSanchez agreed with Judge Molzen’s finding that Ms. Strickland’s performance was
constitutionally deficient, he objected to her determination that he had not established
prejudice. Doc. 73 at 1. Conversely, although the United States concurred with Judge
Molzen’s prejudice analysis, it objected to her finding that Ms. Strickland’s performance
was constitutionally deficient. Doc. 74 at 1.
A. Improper Guideline Calculations
In her PF&RD, Judge Molzen determined that Ms. Strickland’s representation of
Mr. Orozco-Sanchez at the time he entered his Plea Agreement and pled guilty fell
below the objective standard of reasonableness required by Strickland v. Washington,
466 U.S. 668, 687 (1984). Judge Molzen noted that there was a consensus among the

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parties and Ms. Strickland that Ms. Strickland had erroneously calculated Mr. OrozcoSanchez’s guideline range at 30 to 37 months imprisonment. Indeed, Ms. Strickland
conceded that she miscalculated the guideline range but testified that she was unsure
whether that miscalculation was a product of her ignorance of a 148-day sentence on a
supervised release violation or a failure to correctly summate Mr. Orozco-Sanchez’s
period of incarceration.2 Either way, she conceded deficient performance by failing to
adequately advise Mr. Orozco-Sanchez of the consequences of his guilty plea.
Judge Molzen concluded that Ms. Strickland’s performance failed to pass
constitutional muster for two reasons: (1) because she failed to perform basic factual
research that would have revealed Mr. Orozco-Sanchez’s 148-day supervised release
violation sentence and its dramatic impact on his guideline calculations; and
(2) because her misstatements at the Plea Hearing regarding Mr. Orozco-Sanchez’s
guideline range, when coupled with reinforcement from Magistrate Judge Martinez and
her failure to temper those statements with contemporaneous reminders that the range
was a mere estimate, essentially amounted to promises that Mr. Orozco-Sanchez would
fall into the 30-to-37-month guideline range. Doc. 65 at 20-25.
The United States urges this Court not to adopt Judge Molzen’s determination of
deficient performance for the following reasons: (1) additional evidence, which it
appended to its Objections, purportedly establishes that trial counsel did not fail to
adequately investigate Mr. Orozco-Sanchez’s criminal history; (2) the mere

Along with its Objections to Jude Molzen’s PF&RD, the United States submitted an affidavit
from Ms. Strickland in which she attempted to clarify, based upon her post-Evidentiary Hearing
review of Mr. Orozco-Sanchez’s Pretrial Services Report, that her miscalculation of his guideline
range was not, in fact, caused by a lack of information about his supervised release violation.
See Doc. 74, Ex. B. As explained hereafter, the Court need not consider that affidavit.
2

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miscalculation of a defendant’s guideline range does not, in itself, render counsel’s
performance constitutionally deficient; and (3) trial counsel did not recklessly promise
Mr. Orozco-Sanchez a particular sentence. Doc. 74 at 3-4. In response, Mr. OrozcoSanchez urges the Court to strike the post-Evidentiary Hearing affidavit of Ms.
Strickland. Doc. 80 at 5-10. He maintains that the United States has failed to explain
why the statements contained in that affidavit were not relevant or available at the time
of the Evidentiary Hearing. Id. at 10. Alternatively, Mr. Orozco-Sanchez asks the Court
to return the case to Judge Molzen for further hearings and additional findings and
recommendations. Id. at 8 (citing 28 U.S.C. § 636(b)(1)(C) (the district court “may
recommit the matter to the magistrate judge with instructions”).
Ultimately, because the Court adopts Judge Molzen’s determination that Mr.
Orozco-Sanchez suffered no prejudice from any deficient performance of counsel at the
plea stage, it becomes unnecessary to either determine whether Ms. Strickland’s
performance was in fact deficient or to return the matter to Judge Molzen for further
recommendations in light of the newly-submitted affidavit. See United States v. Zajac,
680 F. App’x 776, 783 (10th Cir. 2017) (“As a practical consideration, we need not
examine both prongs [of the Strickland analysis] if one or the other is lacking.”)
Accordingly, the Court proceeds to the second prong of the Strickland analysis.
Under the prejudice prong, Judge Molzen concluded that Mr. Orozco-Sanchez
failed to establish prejudice because he could not show that, absent ineffective
assistance of counsel, he would have entered an open guilty plea or that the result of
his criminal proceeding would have been more favorable. See Doc. 65 at 31. The
United States concurs with Judge Molzen’s prejudice determination. Mr. Orozco-

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Sanchez, in contrast, contends that Judge Molzen significantly undervalued the strength
of his grounds for downward departure and variance as well as his resolve to plead
guilty without a plea agreement. See Doc. 73 at 2. He insists that he has established
prejudice. See id.
Both parties and Judge Molzen have referenced the United States Supreme
Court’s decision in Missouri v. Frye, 566 U.S. 134 (2012) in conducting the Strickland
prejudice analysis; their application of the legal framework, however, is not entirely
consistent. Judge Molzen restated the prejudice framework as follows:
The [Frye] Court in reasoned that, in order to establish prejudice, the
defendant was required to show “a reasonable probability that the end
result of the criminal process would have been more favorable by reason
of a plea to a lesser charge or a sentence of less prison time.” It
explained that it was also “necessary to show a reasonable probability
neither the prosecution nor the trial court would have prevented the offer
from being accepted or implemented.” In other words, the Court
indicated that, in assessing prejudice, courts must entertain how things
would have played out had the defendant pursued an alternative plea
option.
Doc. 65 at 27 (citations omitted). Applying that framework to Mr. Orozco-Sanchez’s
case, Judge Molzen explained:
Given the implausibility of his imperfect duress defense, and the
sentencing judge’s stated inclination not to sentence at the low-end of
the guideline range when a defendant is in Criminal History Category VI,
Mr. Orozco-Sanchez cannot show a “reasonable probability” that the
end result would have been more favorable without the Plea Agreement.
Notably, even if the factors enumerated by Mr. Orozco-Sanchez
contributed to a low-end guideline sentence, which the Court considers
more likely than a below-guidelines sentence, Mr. Orozco-Sanchez
would have still received a sentence higher than 72 months. Moreover,
a low-end sentence would only shave one month off of his high-end
guideline exposure with the Plea Agreement. At the same time, he would
risk a high-end guideline sentence that was 18 months higher than with
his Plea Agreement. Under these circumstances, the Court simply
cannot say that, properly advised, Mr. Orozco-Sanchez would have
entered an open guilty plea.
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* * *
[Further,] [a]pplying the rationale of Missouri v. Frye in reverse – that is,
considering whether the outcome of the proceeding would have been
more favorable if Mr. Orozco-Sanchez declined the Fast-Track Plea
Agreement and instead entered an open plea – the Court concludes that
Mr. Orozco-Sanchez cannot demonstrate prejudice.
Id. at 31, 35. Thus, Judge Molzen was concerned both with whether a properly-advised
Mr. Orozco-Sanchez would have entered an open guilty plea and with whether there
was a “reasonable probability” that the final result would have actually been more
favorable for him without the Plea Agreement.
Mr. Orozco-Sanchez, too, relied upon Frye to frame the issue of prejudice,
explaining:
[a] reasonable probability that, absent counsel’s inadequate
representations, a defendant would have rejected the plea agreement
he accepted and chosen a different, potentially more favorable plea
option also satisfies Strickland’s prejudice prong. Missouri v. Frye, 566
U.S. 133, 148 (2012) (prejudice is established where ineffective
assistance of counsel caused the defendant to miss out on a plea offer
more favorable than the one the defendant ultimately accepted).
Doc. 58 at 17. While he did not directly attack Judge Molzen’s framing of the prejudice
standard in his Objections, he subtly offered a competing one, focusing more narrowly
on whether he would have chosen to pursue an open guilty plea if he had been properly
advised. See, e.g., Doc. 73 at 21. In other words, Mr. Orozco-Sanchez essentially
relieves himself of the additional burden of demonstrating a “reasonable probability” that
he would have received a more favorable result had he entered an open guilty plea. In
his Objections, he relies upon Lee v. United States, 137 S. Ct. 1958 (2017), and
emphasizes that to obtain relief, he need not show that everyone in his position would
have chosen to enter an open plea, but only that he in particular would have made that
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choice. See Doc. 73 at 21. He submits that he has met that burden and that the Court
must, therefore, overrule Judge Molzen’s prejudice determination. See id.
This Court must determine, as a foundational issue, which standard is the proper
prejudice standard in this context – the one advanced by Mr. Orozco-Sanchez in his
Objections or the more demanding one applied by Judge Molzen in her PF&RD.
Following the parties’ lead, the Court’s begins with the Supreme Court’s analysis in
Frye. There, the Court first determined that the defendant’s attorney was ineffective
when he failed to communicate an earlier plea offer to the defendant. Frye, 566 U.S. at
147. Under the second prong of the Strickland analysis, the Court considered whether
the defendant was prejudiced by entering an open guilty plea rather than entering into a
plea agreement. Id. at 137. As Judge Molzen noted in her PF&RD, Frye presented a
legal question similar to the one presented by Mr. Orozco-Sanchez, but in reverse. See
Doc. 65 at 26. Critically, the Court in Frye reasoned that to establish prejudice, the
defendant was required to show “a reasonable probability that the end result of the
criminal process would have been more favorable by reason of a plea to a lesser
charge or a sentence of less prison time.” Frye, 566 U.S. at 147.
More recently, the Supreme Court took up the issue of prejudice in the context of
an attorney’s ineffectiveness at the plea stage in Lee, the primary case from which Mr.
Orozco-Sanchez derives his prejudice standard. In Lee, the parties agreed under the
first prong of the Strickland analysis that the defendant received objectively
unreasonable representation when his attorney advised him that he would not be
deported if he pleaded guilty rather than proceeding to trial. Lee, 137 S. Ct. at 1962.
Contrary to his counsel’s advice, however, the defendant was subject to deportation

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following his guilty plea. Id. at 1963. Thus, the issue before the Court was whether the
defendant could establish that he was prejudiced by his counsel’s constitutionally
deficient representation at the plea stage. Id. at 1965.
The Court, in Lee, noted that the defense attorney’s error had not affected the
defendant’s prospects at trial, prospects it described as “grim.” Id. Instead, the error
caused the defendant to enter a plea, which made him subject to certain deportation
and caused him to forfeit his right to a trial. Id. The Court reasoned that the defendant
could establish prejudice even without showing that he “would have been better off
going to trial.” Id. It clarified that a defendant need only show he would have been better
off going to trial when his “decision about going to trial turns on his prospects of success
and those are affected by the attorney’s error . . . .” Id. In Lee, the Court considered
whether counsel’s error had caused a denial of a judicial proceeding altogether, drawing
upon its prior decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), in which it held
that there was a presumption of prejudice when the defense counsel’s error results in
the denial of an appeal. Lee, 137 S. Ct. at 1965. Just as the Court in Flores-Ortega
described the denial of an appeal as a “denial of the entire judicial proceeding,” the
Court described the denial of a trial in the same manner. See id. at 1965. Ultimately, the
Court stated the applicable prejudice standard in Lee as follows:
When a defendant claims that his counsel’s deficient performance deprived
him of a trial by causing him to accept a plea, the defendant can show
prejudice by demonstrating a “reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going
to trial.”
Id. (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

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The Court then turned to the issue of whether the defendant in Lee could show
that he would have, absent ineffective assistance, insisted on going to trial in lieu of
pleading guilty. It declined to adopt a per se rule that a defendant without a viable
defense cannot establish prejudice from the forfeiture of a trial. Id. at 1966. While the
Court acknowledged that “a defendant facing . . . long odds will rarely be able to show
prejudice from accepting a guilty plea that offers him a better resolution,” it explained
that there are sometimes additional considerations beyond the likelihood of success at
trial. Id. at 1967. Specifically, for the defendant there avoiding deportation was the
determinative factor driving how he chose to proceed. Id. at 1966-67. The Court
explained that if the defendant had received competent representation, he would have
understood that accepting the plea agreement would “certainly lead to deportation,”
while going to trial would “almost certainly” lead to deportation. Id. at 1968. Under these
circumstances, the Court determined that it would not be irrational for someone in the
defendant’s position to reject a plea offer in favor of trial. Id. at 1969.
Justice Thomas dissented in Lee, describing the prejudice standard applied by
the majority as a “novel” one, which in his assessment did “not follow from [the Court’s]
precedents.” Id. at 1969. Justice Thomas submitted that Strickland requires defendants
to show a “reasonable probability” that, but for counsel’s errors, the outcome of the
prosecution would have been different. Id. at 1970. He noted that in Frye, the Court
required the defendant to show not only that the he would have accepted the plea
absent counsel’s error, but also that the ultimate outcome of the proceeding would have
been more favorable. Id. at 1971. He maintained that the majority in Lee had effectively

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abandoned the Strickland prejudice standard, carving out a new, less stringent
standard.
To the extent he suggests that the prejudice standard applied by the majority in
Lee was novel, this Court agrees with Judge Thomas’ assessment. In the Court’s view,
a narrower prejudice standard was crafted to address the unique circumstances at issue
in Lee. There, counsel’s ineffective assistance caused the defendant to forfeit his right
to an entire judicial proceeding (i.e., a trial). Additionally, the more favorable outcome for
the defendant in Lee was the one that made deportation less likely, not the one more
likely to bring about an acquittal or shorter sentence.
By contrast, Mr. Orozco-Sanchez was not subject to the denial of an entire
judicial proceeding. Rather, he was afforded both a plea hearing and a sentencing
hearing, proceedings he would have likewise been afforded had he entered an open
guilty plea. Moreover, for Mr. Orozco-Sanchez, the more favorable outcome was the
one more likely to bring about a shorter sentence. Given these distinctions, the Court
concludes that the applicable prejudice standard here is the one outlined in Frye. That
is, Mr. Orozco-Sanchez must show: (1) that in the absence of ineffective assistance he
would have pursued a different plea option and (2) that there was a reasonable
probability that the ultimate outcome – the length of his sentence -- would have been
more favorable. Putting aside the issue of Mr. Orozco-Sanchez’s plea choice, the Court
considers whether he has demonstrated a reasonable probability that he would have
received a shorter sentence absent ineffective assistance of counsel.
As Judge Molzen explained in her PF&RD, Mr. Orozco-Sanchez’s guideline
range was 63 to 78 months imprisonment with his Plea Agreement. Without the Plea

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Agreement, his range would have been significantly higher, because he would be
ineligible for the 2-level reduction provided for in the Plea Agreement pursuant to
U.S.S.G. § 5K3.1. Specifically, foregoing the Plea Agreement would have caused his
sentencing guideline range to increase from 63 to 78 months to 77 to 96 months. Judge
Molzen concluded there was a significant likelihood that, under the higher guideline
range, Mr. Orozco-Sanchez would have received a sentence greater than the 72
months incarceration imposed by this Court. Doc. 65 at 35. Following the Court’s de
novo review, it agrees that -- under the circumstances of this case and for the reasons
outlined by Judge Molzen -- Mr. Orozco-Sanchez has failed to establish a reasonable
probability that the end result of the criminal process would have been more favorable
for him absent ineffective assistance of counsel.
In her PF&RD, Judge Molzen evaluated the grounds asserted by Mr. OrozcoSanchez for a significant departure or variance, concluding that they were not
compelling enough to establish prejudice. See Doc. 65. Mr. Orozco-Sanchez submits,
however, that she undervalued the strength of these grounds. Doc. 73 at 2. First, he
suggests that the applicable sentencing guideline calculations “did not accurately
measure the seriousness of Mr. Orozco’s very stale [alien transportation] conviction.” Id.
at 4. He describes that offense as a 17-year-old conviction for which he served a
“misdemeanor amount of time” and maintains that, while technically a correct
application of the guidelines, the 16-level increase was nevertheless unfair. Id. at 4-7.
According to Mr. Orozco-Sanchez, his criminal history circumstances made his
guidelines range ripe for a downward departure or variance. Id. at 4-5.

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This Court disagrees. While the staleness of a conviction may in certain
circumstances warrant a significant downward departure or variance in an illegal reentry
case, here, the totality of Mr. Orozco-Sanchez’s criminal history weighs against granting
a significant departure or variance. As outlined in Judge Molzen’s PF&RD, that criminal
history includes repeated felony violations of federal immigration law, including three
convictions after the 1998 alien transportation conviction. Indeed, those numerous
illegal reentry convictions caused this Court to sentence Mr. Orzoco-Sanchez toward
the upper end of his guideline range despite a concession from the United States that a
“low-end sentence would be sufficient.” See Doc. 28 at 2:17-19, 7:8-14. This Court
previously admonished Mr. Orozco-Sanchez at sentencing: “You keep illegally
reentering the United States. Your conduct shows that you have no respect for the laws
of the United States.” Doc. 28 at 7:4-7. Mr. Orozco-Sanchez cannot demonstrate a
reasonable probability that he would have received a significant departure or variance
on the basis of overstated criminal history.
Mr. Orozco-Sanchez also maintains that adding two criminal history points for the
commission of an offense while being on supervised release under U.S.S.G. § 4A1.1(d)
was unfair, because U.S.S.G. § 5D1.1(c) advises against imposing supervised release
when the defendant is likely to be removed after imprisonment. As the Court
understands his argument, Mr. Orozco-Sanchez submits that he should never have
been placed on supervised release following his incarceration for alien transportation,
because he was likely to be removed following his period of incarceration for that
offense. Application Note 5 to the applicable guideline explains, however, that even in
cases in which the defendant is likely to be removed following imprisonment, the court

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should still consider imposing a term of supervised release if it “determines it would
provide an added measure of deterrence and protection based on the facts and
circumstances of the particular case.” U.S.S.G. § 5D1.1 n.5. Mr. Orozco-Sanchez’s
unrelenting attempts to illegally reenter the United States likely indicated that he was in
need of additional deterrence. Once again, Mr. Orozco-Sanchez fails to show a
reasonable probability that he would have received a significant departure or variance
based upon the purportedly unfair addition of criminal history points for the commission
of an offense while on supervised release.
Turning to Mr. Orozco-Sanchez’s duress claim, the Court agrees with Judge
Molzen’s rationale and with her assessment that the Court would not likely find plausible
Mr. Orozco-Sanchez’s story of being kidnapped and forced to guide a group of illegal
aliens into the United States. Mr. Orozco-Sanchez takes issue with Judge Molzen’s
conclusion that his guilty plea undermines his testimony that he entered the United
States under duress. Judge Molzen found that “[t]he fact that he pled guilty in his
previous immigration cases, representing that he was voluntarily present in the United
States, undermines his claim that he only crossed the border under duress from
cartels.” Doc. 65 at 29. Mr. Orozco-Sanchez notes that there is a distinction between a
duress defense at trial and duress as a ground for a below-guidelines sentence. Doc. 73
at 8. Conceding that he could not meet the third element for a viable duress defense,
Mr. Orozco-Sanchez maintains that entering a guilty plea did not preclude him from
obtaining a downward departure or variance on the basis of duress. But as the United
States points out, Mr. Orozco-Sanchez admitted through the entry of the plea
agreement that he “knowingly and voluntarily reentered the United States.” See, e.g.,

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Doc. 12 at 4-5. An admission of a voluntary re-entry does run counter to a contention
that he entered the United States because he was under duress from a drug cartel.
In her analysis of Mr. Orozco-Sanchez’s duress claim, Judge Molzen referenced
statements made by this Court at sentencing. In his Objections, Mr. Orozco-Sanchez
argues that the Court’s reaction to Mr. Orozco-Sanchez’s allocution “is not a valid
indication of the prospects for a well-presented duress departure or variance argument
before an unknown judge.” Doc. 73 at 10. He goes on:
whether Judge Johnson in particular would be impressed by Mr. Orozco’s
kidnaping version of events is not a relevant issue. Mr. Orozco had to make
his plea decision before a district judge was assigned. . . . And the prejudice
determination must be made “without regard for the ‘idiosyncrasies of the
particular decisionmaker.’”
Doc. 73 at 11 (citing Hill v. Lockhart, 474 U.S. 52, 59-60 (1985), in which the Court
explained that predictions as to the outcome of a possible trial must be made objectively
without regard for idiosyncrasies of the decisionmaker).
While it is true that Mr. Orozco-Sanchez had to make his plea decision before the
undersigned judge was assigned to his case, the Court disagrees that its statements at
sentencing in this very case are therefore irrelevant to the prejudice analysis. Where
Judge Molzen was tasked with determining whether there was a reasonable probability
of a more favorable sentencing outcome absent ineffective assistance, the sentencing
judge’s statements provided helpful guidance to the extent that they addressed his view
of Mr. Orozco-Sanchez’s case. For instance, as Judge Molzen noted, the Court
responded to Mr. Orozco-Sanchez’s telling of his kidnapping story with the following: “I
can’t control the circumstances in Mexico but you’ve been deported numerous times.
You keep illegally reentering the United States. Your conduct shows that you have no

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respect for the laws of the United States.” Doc. 28 at 7:4-7. The Court did not find Mr.
Orozco-Sanchez’s duress claim plausible at sentencing, nor does it find that claim
plausible as now articulated by counsel. While perceived inclinations of the Court could
be described as “idiosyncrasies” if made in the abstract, Judge Molzen here referred to
specific statements made by the Court in support of the sentence given to Mr. OrozcoSanchez. It was not error for her to consider these statements in her prejudice analysis.
Next, Mr. Orozco-Sanchez contends that his “Arizona supervised release
revocation proceedings provide substantial evidence that competent advocacy on
behalf of Mr. Orozco’s duress departure or variance would have borne fruit.” Doc. 73 at
11. According to Mr. Orozco-Sanchez, the Arizona attorney who represented him in that
supervised release revocation proceeding presented evidence about his alleged duress,
seeking a fully concurrent sentence based in part on that ground. Doc. 73 at 11 (citing
Doc. 48, Att. E). Ultimately, the District of Arizona gave Mr. Orozco-Sanchez a sentence
16 months below the guideline-range bottom. Doc. 48, Att. A, at 5, Att. G. But, as Judge
Molzen explained, the record does not specify why the court did so. Doc. 65 at 30. Mr.
Orozco-Sanchez insists that it must have been a result of testimony about his
kidnapping; at the same time, he denounces speculation by Judge Molzen as to the
reason for the variance. But the reasons offered by Mr. Orozco-Sanchez are equally
speculative. Without the benefit of the District of Arizona’s rationale, the sentence
rendered in Mr. Orozco-Sanchez’s supervised release revocation proceedings does not
demonstrate prejudice in the outcome of his illegal reentry case in this District.
Finally, Mr. Orozco-Sanchez contends that Judge Molzen failed to account for his
difficult childhood, which he suggests was another “fervent” ground for a downward

15

departure or variance. Doc. 73 at 12. Though his childhood was indeed unfortunate, the
Court disagrees that it would alter the calculus at a sentencing. After all, the Court was
provided with information about Mr. Orozco-Sanchez’s childhood and, yet, persisted with
a sentence toward the upper end of the guideline range. Specifically, Ms. Strickland
advised the Court that Mr. Orozco-Sanchez “suffered some severe childhood abuse and
neglect which affected the way – affected his development and his ability to make
decisions.” Doc. 28 at 3:4-7. Further, the Presentence Report, which the Court reviewed
in advance of sentencing, described Mr. Orozco-Sanchez’s childhood circumstances and
indicated that he grew up in extreme poverty, often with very little to eat, his mother beat
him with a rope daily, and his father was often absent and had a drinking problem. Doc. 55
at 11-12.
Ultimately, because Mr. Orozco-Sanchez has not established a reasonable
probability that he would receive a more favorable outcome with an open guilty plea than
he did with his Plea Agreement, he has failed to satisfy Strickland’s prejudice prong. As
such, Mr. Orozco-Sanchez’s claim of ineffective assistance of counsel at the plea stage
will be denied.
B. Failure to Appeal
Mr. Orozco-Sanchez also objects to Judge Molzen’s determination that Ms.
Strickland’s failure to either file an appeal or consult with him about an appeal did not
constitute ineffective assistance of counsel. He insists that he credibly asked Ms.
Strickland to appeal and suggests that if she failed to understand his request, she is at
fault. Doc. 73 at 22. Essentially, he contends that Ms. Strickland was ineffective for not
hearing his appeal request. Moreover, he maintains that a non-frivolous ground for

16

appeal triggered a duty to consult with him about an appeal, which Ms. Strickland failed
to satisfy. Id. at 23 (citing Flores-Ortega, 528 U.S. at 480).
At the Evidentiary Hearing, Mr. Orozco-Sanchez testified that while he was still
standing at the podium with Ms. Strickland following his sentencing, he “told her if she
would be able to make – to appeal for me.” Doc. 56 at 21:7-8. Mr. Orozco-Sanchez
explained that Ms. Strickland did not respond to his request. Id. at 21:9-10. He admitted
that he did not know whether she heard the request, explaining that “she was taking
these [interpreter] headsets, she was taking them as I was telling her.” Id. at 21:20-22.
For her part, Ms. Strickland testified that she did not have any recollection of Mr.
Orozco-Sanchez requesting that she file an appeal. Id. at 98:10-12, 99:6-8, 114:1-3.
Further, Mr. Orozco-Sanchez understood that he had 14 days within which to appeal.
Id. at 21:14-17. However, during those 14 days he did not correspond with Ms.
Strickland – by e-mail, phone call, or letter – to request that she file an appeal on his
behalf. Id. at 114:1-16. Ms. Strickland testified that if Mr. Orozco-Sanchez had even
hinted about the possibility of an appeal, she would have filed one. Id. at 114:17-20.
Based upon this testimony, Judge Molzen determined that Mr. Orozco-Sanchez
did not successfully convey any request that Ms. Strickland file an appeal, even
accepting his testimony that he attempted to do so. Doc. 65 at 36. This Court adopts
that finding and concludes that Mr. Orozco-Sanchez has indeed failed to establish that
Ms. Strickland was ineffective by neglecting to follow his attempted request that she file
an appeal. This does not end the inquiry, however, because a duty to consult regarding
an appeal may still arise when: (1) the particular defendant reasonably demonstrates to

17

counsel that he is interested in appealing, or (2) a rational defendant would want to
appeal. See Flores-Ortega, 528 U.S. at 480.
Here, Mr. Orozco-Sanchez persisted with his Plea Agreement – an agreement
that waived his right to appeal or collaterally attack his conviction save for ineffective
assistance for counsel – even after Ms. Strickland presented him with the option of
withdrawing. Indeed, at the Evidentiary Hearing, the following exchange took place
between Mr. Orozco-Sanchez and his counsel:
A. . . . [Ms. Strickland] told me that she – we may want to
continue the case and to do it later and to see if I would be
able to get something less. It was because of my past history,
because I had come again to this country.
Q. Did you ask her to continue the case at that time?
A. No.
Q. Why not?
A. I don’t know. No. I just let it happen like that.
Q. Did you ask her not to continue the case?
A. I did not ask her to continue the case. I just wanted her to
finish this because I just wanted to get out of this.
Doc. 56 at 15-16. Mr. Orozco-Sanchez’s testimony was consistent with that offered by
Ms. Strickland. Ms. Strickland explained that she discussed with Mr. Orozco-Sanchez
the option of putting off sentencing or withdrawing the plea, but he opted to proceed
with his Plea Agreement intact. Id. at 94-95. She noted that he “wanted to go to
sentencing. He was tired of sitting in jail and dealing with this.” Id.
Notably, this testimony is indicative of a desire to end judicial proceedings, not to
prolong them through appeal. Mr. Orozco-Sanchez ultimately received a sentence that
was within the range provided in his Plea Agreement, and, although he was upset that
the range was higher than Ms. Strickland first indicated, he did not communicate any
desire to appeal his sentence following sentencing so far as Mr. Strickland knew. Under

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the circumstances, the Court agrees with Judge Molzen’s conclusion that Mr. OrozcoSanchez did not reasonably demonstrate a desire to appeal.
Mr. Orozco-Sanchez maintains that a rational defendant would want to appeal,
given the non-frivolous ground for doing so: an unknowing and involuntary plea. Doc. 73
at 22-23. But the Court disagrees with the premise advanced by Mr. Orozco-Sanchez
that he “had a good chance of receiving a lower sentence than the district court
imposed” following an appeal. Id. at 23. Instead, the Court favors the premise advanced
by Judge Molzen – that the risk of receiving a higher sentence outweighed the slim
chance of receiving a more favorable result through resentencing. Given that the Plea
Agreement reduced sentencing exposure, the Court cannot say that a rational
defendant would have sought to invalidate it on appeal. Given the Court’s conclusion
herein that an open guilty plea would be unlikely to produce a lower sentence, it follows
that Ms. Strickland had no duty to consult about an appeal absent some clear indication
from Mr. Orozco-Sanchez that he wished to do so. Ms. Strickland’s failure to consult
with Mr. Orozco-Sanchez about the possibility of an appeal did not constitute deficient
performance under Strickland.
C. Conclusion
For these reasons, the Court concludes that Mr. Orozco-Sanchez has failed to
establish that he was prejudiced by any deficient representation by Ms. Strickland at the
plea stage. Further, he has failed to establish that Ms. Strickland’s failure to file an
appeal or to consult him regarding the filing of an appeal constitutes ineffective
assistance of counsel.
Wherefore,

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IT IS HEREBY ORDERED that Cirilo Orozco-Sanchez’s Motion to Vacate, Set
Aside or Correct Sentence under 28 U.S.C. § 2255 (Doc. 23) is hereby denied and his
claims are dismissed with prejudice.

CHIEF UNITED STATES DISTRICT JUDGE

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