Nunez-Sanchez v. USA
Filing
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ORDER dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Robert J. Conrad, Jr on 11/30/15. (Pro se litigant served by US Mail.)(ssh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-00085-RJC
(3:06-cr-00353-RJC-1)
JAIRO NUNEZ-SANCHEZ,
)
)
Petitioner,
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)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
____________________________________)
ORDER
THIS MATTER is before the Court on consideration of Petitioner’s pro se Motion to
Vacate, Set Aside or Correct Sentence which he filed pursuant to 28 U.S.C. § 2255. For the
reasons that follow, Petitioner’s § 2255 Motion will be dismissed.
I.
BACKGROUND
In early 2006, agents with the Drug Enforcement Administration (“DEA”) in Nashville,
Tennessee, were conducting an investigation into a wide-ranging drug conspiracy that involved
the importation of black and white tar heroin from Mexico to several states within the United
States, including North Carolina. Information gained from Title III wiretaps revealed that some
of the conspirators had established a hub in the Western District of North Carolina, and an
investigation was initiated by DEA agents in this District which included additional Title III
wiretaps. Evidence from the tapped phones demonstrated that Petitioner served as a leader of the
drug conspiracy in this District and that a bulk of the heroin was stored and distributed from
Petitioner’s home in Charlotte. Based on the evidence obtained through the wiretap surveillance
and other sources, a federal search warrant was obtained for Petitioner’s house. DEA agents and
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detectives with the Charlotte-Mecklenburg Police Department (“CMPD”) executed the warrant
and discovered nearly 70 grams of heroin, over $6,000 in cash, drug scales, a sawed off 20-gauge
shotgun and a 9 mm handgun.1
Following the search, Petitioner was arrested and charged by the Grand Jury in this
District with multiple counts related to the drug conspiracy. Petitioner entered into a written plea
agreement with the Government and agreed to plead guilty to one count of conspiracy to possess
with intent to distribute at least one kilogram of heroin, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A) (Count One); one count of possession of a firearm during and in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Five); and one count of money
laundering of illegal drug proceeds, in violation of 18 U.S.C. § 1956(h) (Count Nine). (Criminal
Case No. 3:06-cr-00353, Doc. No. 33: Superseding Indictment; Doc. No. 115: Plea Agreement).
Petitioner appeared before the magistrate judge for his Plea and Rule 11 hearing and he
was placed under oath and the elements of Counts One, Three and Nine were explained to him
and the minimum and maximum penalties. Petitioner averred that he understood the elements of
the charges and the potential penalties; that he understood and agreed with the terms of his plea
agreement; and that no one had promised him any particular sentence, or made any promises,
that were not contained within the written plea agreement. Petitioner confirmed that he was
waiving his right to contest his charges at trial and he admitted that he was in fact guilty of the
charged conduct and that the factual basis for his plea could be determined by the Court during
his sentencing hearing. The court’s questions, along with Petitioner’s answers were reduced to
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Petitioner stipulated during his sentencing hearing that the factual basis for his guilty pleas was supported by the
offense conduct contained in his Presentence Report in paragraphs 8-33. (3:06-cr-00353, Doc. No. 220: Sent. Tr. at
3).
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writing and presented to him. Petitioner reviewed his answers and agreed that they were true and
accurate, and the court accepted Petitioner’s guilty plea after finding that it was knowingly and
voluntarily entered. (Id., Doc. No. 125: Acceptance and Entry of Guilty Plea; Doc. No. 238:
Amended Tr. of Plea and Rule 11 Hearing).
The U.S. Probation Office prepared a presentence report (“PSR”) and calculated a base
offense of level of 32 under § 2D1.1 of the U.S. Sentencing Guidelines Manual (“USSG”)(2006)
based on the quantity of heroin that Petitioner admitted he was responsible for and a four-level
increase was applied under § 3B1.1(a) because he played a role as a leader within the drug
conspiracy. Petitioner was also assessed a two-level enhancement for violation of the money
laundering statute. See 18 U.S.C. § 1956(h). Petitioner’s total offense level was 35 after
adjusting for acceptance of responsibility and when considered with Petitioner’s Level I criminal
history category, Petitioner’s Guidelines range was 168 to 210 months’ imprisonment plus the
mandatory consecutive term of 5 years in prison for the § 924(c) offense. (Id., Doc. No. 166:
PSR ¶ 76).
At the outset of Petitioner’s sentencing hearing, the Court addressed Petitioner and he
confirmed that the answers that he had provided during his Rule 11 hearing were true and that he
would give the same answers if they were posed during sentencing, and Petitioner again
confirmed that he was in fact guilty of the charged crimes. Petitioner stipulated that the offense
conduct detailed in paragraphs 8 through 33 of his PSR established a factual basis for his guilty
plea, and the Court accepted Petitioner’s plea after finding that his decision to enter his guilty
plea was knowing and voluntary and that there was a factual basis to support his guilty pleas.
Petitioner objected to the four-level enhancement and denied that he served as a leader in
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the conspiracy although he admitted that he participated in the distribution of heroin. This
objection was overruled because the evidence established that he in fact played a pivotal role in
the conspiracy as a leader of the organization in this District. Petitioner was sentenced to
concurrent terms of 168-months’ imprisonment for the drug conspiracy charged in Count One
and the money laundering conviction in Count Nine, and a mandatory consecutive term of 60
months for his § 924(c) conviction on Count Five for a total term of 228-months. (Id., Doc. No.
162: Judgment). Petitioner appealed.
Petitioner’s counsel filed an Anders brief asserting that there appeared to be no
meritorious issues for appeal but inquiring whether Petitioner was properly assessed a four-level
enhancement for his role as a leader in the drug conspiracy. 2 Petitioner filed two pro se
supplemental briefs in which he raised three issues: (1) whether his guilty plea was knowing and
voluntary; (2) whether Count Five of his indictment charged him with multiple § 924(c)
offenses; and (3) whether his money laundering conviction was now infirm in light of the
Supreme Court’s holding in United States v. Santos, 553 U.S. 507 (2008).3
The Court first rejected Petitioner’s challenge in the Anders brief to his four-level
enhancement after finding that the enhancement was not clearly erroneous and that a jury need
not determine the facts necessary to support the enhancement. See United States v. NunezSanchez, 453 F. App’x 319, 320-21 (4th Cir. 2011) (unpublished) (internal citations omitted).
Petitioner’s supplemental claims were likewise denied after the Court concluded that the court
2
Anders v. California, 386 U.S. 738 (1967).
In Santos, the Court reversed multiple money laundering convictions because the defendant was also convicted of
running an illegal gambling business. The question turned on whether the term “proceeds” in the money laundering
statute meant “receipts” or “profits.” In a 5-4 decision, the Court held that the money laundering statute only
pertained to the “profits” of criminal activity. Id. at 524. This holding clearly would not have applied in Petitioner’s
case.
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conducted a thorough Rule 11 hearing which demonstrated that Petitioner understood the
charges, potential penalties, and that the plea was supported by an adequate factual basis. The
Court denied Petitioner’s challenge to Count Five after concluding that Petitioner’s guilty plea
waived any challenge that Count Five charged duplicitous counts. Id. at 321. Petitioner’s
challenge to his money laundering conviction was also denied when the Court decided not to
apply the holding in Santos to Petitioner’s claim. After conducting its Anders review,
Petitioner’s judgment was affirmed and he did not petition the Supreme Court for a writ of
certiorari.
In this collateral proceeding, Petitioner raises four claims of ineffective assistance of
counsel. Petitioner’s contentions will be examined below.
II.
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing
courts are directed to promptly examine motions to vacate, along with “any attached exhibits and
the record of prior proceedings” in order to determine whether a petitioner is entitled to any
relief. The Court has considered the record in this matter and applicable authority and concludes
that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
III.
DISCUSSION
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal
prosecutions, the accused has the right to the effective assistance of counsel to assist in his
defense. U.S. Const. amend. VI. In order to prevail on a claim of ineffective assistance of
counsel, a petitioner must show that: (1) “counsel’s representation fell below an objective
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standard of reasonableness,” and (2) the deficient performance was prejudicial the defense.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In measuring counsel’s performance,
there is “a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. . .” Id. at 689. A petitioner seeking post-conviction relief based on
ineffective assistance of bears a “heavy burden in overcoming this presumption.” Carpenter v.
United States, 720 F.2d 546, 548 (8th Cir. 1983). Conclusory allegations do not overcome the
presumption of competency. Id.
To demonstrate prejudice in the context of a guilty plea, a Petitioner must demonstrate “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Petitioner “bears the
burden of proving Strickland prejudice.” Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297
(4th Cir. 1992) (citing Hutchins v. Garrison, 724 F.2d 1425, 1430-31 (4th Cir. 1983), cert.
denied, 464 U.S. 1065 (1984)). If Petitioner fails to meet this burden, “a reviewing court need
not consider the performance prong.” Fields, 956 F.2d at 1297 (citing Strickland, 466 U.S. at
697). In considering the prejudice prong of the analysis, the Court must not grant relief solely
because Petitioner can show that, but for counsel’s performance, the outcome of the proceeding
would have been different. See Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998). Rather, the
Court “can only grant relief under the second prong of Strickland if the ‘result of the proceeding
was fundamentally unfair or unreliable.’” Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369
(1993)).
A.
Ground One
Petitioner first argues that his guilty plea was not knowing and voluntary because his
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counsel provided erroneous advice regarding the possible sentence that he would face if he chose
to plead not guilty and contest his charges at trial. (3:13-cv-00085, Doc. No. 1: Petition at 5).
Petitioner asserts that his counsel warned him that if he did not plead guilty then the Government
would file a notice of its intention to seek enhanced penalties, pursuant to 21 U.S.C. § 851, and
he could face a mandatory-minimum term of 20 years upon conviction. In particular, Petitioner
maintains that his counsel informed him that a Tennessee drug conviction or convictions made
him eligible for enhanced penalties.
This argument is plainly belied by Petitioner’s sworn statements during his Plea and Rule
11 hearing where he was under oath and swore that no one had promised him any particular
sentence in exchange for his guilty plea and where Petitioner averred that he understood that he
faced a mandatory minimum term of 10-years’ imprisonment upon conviction on Count One.
This argument is further undermined because it is patently incredible. Petitioner’s presentence
report, to which he filed no objection save for his oral objection to the four-level enhancement,
demonstrates that he had no prior convictions in the United States at the time he was indicted or
prior to his guilty plea. Accordingly, even if his attorney had invented convictions in Tennessee,
Petitioner would have known that his attorney’s advice was erroneous and that no such
sentencing enhancement could apply.4 (3:06-cr-00353, Doc. No. 166: PSR ¶ 60).
A petitioner is bound by his sworn statements which he makes during a properly
conducted Rule 11 hearing and as this Court found during sentencing, and reaffirms herein,
4
Petitioner also contends that his counsel did not inform him that a jury might not find him responsible for more
than one kilogram of heroin. (Id. at 8). From the record, it does not appear outside the realm of professional norms to
limit Petitioner’s sentencing exposure based, on among other things, the overwhelming evidence of his guilt. By
entering into the written plea agreement and pleading guilty Petitioner received a three-level reduction for
acceptance of responsibility which would not have been possible had he maintained his innocence and contested the
charges at trial. And as noted herein, Petitioner swore under oath that he was responsible for more than one kilogram
of heroin.
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Petitioner’s Rule 11 hearing was properly conducted therefore his late, self-serving claims here
must fail. See, e.g., Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“For the representations of
the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by
the judge accepting the plea, constitute a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong presumption of verity.”); United
States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005).
Furthermore, even assuming that Petitioner’s assertion that his attorney misled him about
his potential sentence is true, the information provided by the court during his Rule 11 hearing
clearly informed Petitioner that he faced no less than 10 years and not more than life
imprisonment on Count One and he averred that he understood this potential sentence. See
United States v. Foster, 68 F.3d 86, 88 (4th Cir. 1995) (recognizing that “any misinformation
[Petitioner] may have received from his attorney was corrected by the trial court at the Rule 11
hearing, and thus [Petitioner] was not prejudiced.”); United States v. Lambey, 974 F.2d 1389,
1395 (4th Cir. 1992) (en banc), cert. denied, 513 U.S. 1060 (1994) (“[I]f the information given
by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by
the defendant’s attorney and the defendant admits to understanding the court’s advice, the
criminal justice system must be able to rely on the subsequent dialogue between the court and the
defendant.”).
Finally, Petitioner appeared for his sentencing hearing before the undersigned over eight
(8) months after his guilty plea was accepted by the magistrate judge and Petitioner confirmed
that all of the answers that he had given during his plea hearing were true and that he would
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answer those questions the same way if the Court posed them again.5 Interestingly, Petitioner did
not raise the § 851 issue at sentencing nor did he raise it in his pro se supplemental briefs before
the Fourth Circuit when he argued, only generically, that his guilty plea was not knowing and
voluntary because his trial counsel promised him leniency through statements that were not made
a part of the plea agreement. See United States v. Nunez-Sanchez, No. 08-4224, Pro se Anders
Supplemental Brief at 7, 9-12, ECF No. 74.6
For the foregoing reasons, this claim for relief will be dismissed.
B.
Ground Two
Petitioner next argues that his counsel was ineffective in negotiating the drug amount for
which he was to be held responsible and that this error exposed him to the mandatory minimum
10-year term of imprisonment. (3:13-cv-00085. Doc. No. 3: Petitioner’s Mem. at 16). This claim
will be dismissed because the drug weight at issue (more than one kilogram of heroin) was
plainly stated in Petitioner’s plea agreement, to which he was a signatory, and Petitioner averred
that he understood the quantity for which he would be held responsible and the mandatory
minimum term of 10-years in prison that he faced if convicted. Accordingly, Petitioner is bound
by his sworn statements during his Rule 11 hearing, and before this Court during sentencing, that
The Court notes that the Fourth Circuit found Petitioner’s guilty plea was knowing and voluntary based on his
sworn answers during the Rule 11 hearing, and that his present challenges in this § 2255 proceeding could likely be
barred by the law of the case doctrine. However, out of an exercise of caution, because Petitioner has framed his
arguments expressly in terms of ineffective assistance of counsel, the merits of each argument will be addressed
herein. See Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976); United States v. Bell, 5 F.3d 64, 66
(4th Cir. 1993) (The law of the case doctrine “forecloses relitigation of issues expressly or impliedly decided by the
appellate court.”).
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Petitioner’s contention that his English language barrier affected the knowing and voluntary nature of his plea is
unavailing as the Fourth Circuit noted that the charges and possible penalties were properly explained to him
through an interpreter during his Rule 11 hearing, and Petitioner’s responses indicated that he fully understood the
impact of his guilty plea. See Nunez-Sanchez, 453 F. App’x at 321. (Id. at 6-7).
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he was in fact responsible for more than one kilogram of heroin.
C.
Ground Three
In this claim, Petitioner maintains that his trial counsel was ineffective in the effort to
challenge the four-level enhancement for his role as a leader of the drug conspiracy under USSG
§ 3B.1.1(a). (3:13-cv-00085, Doc. No. 3 at 25). This argument is without merit as the evidence in
the presentence report clearly supports the enhancement therefore Petitioner cannot demonstrate
prejudice, and more to the point, the Fourth Circuit rejected Petitioner’s challenge to the
application of the enhancement after conducting its review of the record therefore he may not
obtain relief on this point in a collateral proceeding.7 For these reasons, this argument will be
dismissed.
D.
Ground Four
In his final claim, Petitioner contends that his appellate counsel rendered deficient
performance by failing to properly challenge his four-level enhancement for his role as a leader
in the conspiracy, and that his counsel failed to raise the issues that Petitioner presented in his
pro se supplemental briefs on appeal. (Id. at 36-37).
The test for ineffective assistance of appellate counsel is largely the same as it is for trial
counsel. Specifically, “[i]n order to establish a claim that appellate counsel was ineffective for
failing to pursue a claim on direct appeal, the applicant must normally demonstrate (1) that his
counsel’s representation fell below an objective standard of reasonableness in light of the
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The evidence in the PSR shows that Petitioner was specifically tapped to replace a co-conspirator, Manuel Amador
Romero-Ortiz, after Ortiz proved inept in his effort to manage the Charlotte distribution ring. The evidence also
showed that the Title III wiretaps were issued for telephones that were utilized by Petitioner to contact coconspirators in this District and in other states in an effort to direct the drug trafficking activity. (3:06-cr-00353, PSR
¶¶ 29-33).
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prevailing professional norms, and (2) that there is a reasonably probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Bell v.
Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc) (internal quotations and citations omitted).
Appellate counsel “is entitled to a presumption that he decided which issues were most likely to
afford relief on appeal.” Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993); see also
Smith v. Robbins, 528 U.S. 259, 288 (2000) (appellate counsel “need not (and should not) raise
every nonfrivolous claim, but rather may select from among them in order to maximize the
likelihood of success on appeal.”) (citing Jones v. Barnes, 463 U.S. 745 (1983)).
Petitioner’s claims here must fail because the Fourth Circuit specifically rejected any
challenge to his four-level enhancement, and the Court considered – and rejected – each of his
pro se arguments and he presents no reasons in this collateral proceeding that could explain how
the outcome of his appeal may have been different had his counsel pursued his pro se claims. For
these reasons, this claim will be dismissed.
IV.
CONCLUSION
Based on the foregoing, the Court finds that Petitioner’s § 2255 Motion is without merit
and it will be dismissed.
IT IS, THEREFORE, ORDERED Petitioner’s § 2255 Motion to Vacate is DENIED
and DISMISSED with prejudice. (Doc. No. 1).
IT IS FURTHER ORDERED that Petitioner’s Motion to Appoint Counsel is DENIED.
(Doc. No. 2).
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, the Court declines to issue a certificate of appealability as Petitioner has not
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made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); MillerEl v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when
relief is denied on procedural grounds, a petitioner must establish both that the correctness of the
dispositive procedural ruling is debatable, and that the petition states a debatably valid claim of
the denial of a constitutional right).
The Clerk is respectfully directed to close this civil case.
SO ORDERED.
Signed: November 30, 2015
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