Trujillo v. USA

Filing 14

ORDER denying and dismissing with prejudice Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Max O. Cogburn, Jr on 7/6/2015. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-688-MOC
(3:11-cr-288)
RODOLPHO TRUJILLO,

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Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the court on petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #1).
I.
In August 2011, Petitioner Rodolpho Trujillo was arrested for his participation in a
narcotics-trafficking and money-laundering operation that involved several individuals around
Charlotte, North Carolina. (Presentence Report, June 16, 2012, Doc. #45, 3:11-cr-288
(hereinafter “PSR”), at 3-5). Pursuant to an agreement with the United States, (Doc. #29, 3:11cr-288 (hereinafter “Plea Agreement”)), Petitioner pleaded guilty on January 24, 2012, to counts
of conspiracy to distribute and possess with intent to distribute five kilograms or more of
cocaine, 18 U.S.C. § 846, and conspiracy to launder money, 18 U.S.C. § 1956(h). (Plea
Agreement at 1-2; Rearraignment Tr., Doc. #71, 3:11-cr-288 (hereinafter “Rearraignment Tr.”)).
The agreement specified that the parties agreed jointly to recommend a finding at sentencing that
the amount of cocaine that was known to or reasonably foreseeable to Petitioner was between 15
and 50 kilograms of cocaine, resulting in a base-offense-level of 34. (Plea Agreement at 2). The
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agreement further specified that Petitioner “agrees to cooperate with the United States” if
“requested by the United States, but only if so requested.” (Id. at 5). “Nothing in [the] agreement
places any obligation on the United States to seek [Petitioner’s] cooperation or assistance.” (Id.
at 7). The agreement also contained a waiver of Petitioner’s right to appeal or seek postconviction relief on grounds other than ineffective assistance of counsel and prosecutorial
misconduct. (Id. at 4–5).
At the time that he signed his plea agreement, Petitioner also signed a Factual Resume
that “accurately describe[s] the events and circumstances surrounding [his] offenses.” (Doc. #33,
3:11-cr-288, at 3.) The Factual Resume described “some of the relevant facts sufficient to
provide a factual basis for the offenses to which the defendant [was] pleading guilty.” (Id. at 1).
Among other things, the Factual Resume explained that Petitioner, along with his codefendant
and others, conspired to distribute and possess with intent to distribute at least five kilograms of
cocaine, that during a meeting recorded by law-enforcement he discussed “conducting a 25kilogram cocaine transaction in the near future,” and that Petitioner and his co-conspirators
agreed to launder money, both to promote the carrying on of specified unlawful activity and to
conceal and disguise the nature, location, source, ownership and control of the proceeds of
specified unlawful activity. (Id. at 2).
The Honorable David S. Cayer, United States Magistrate Judge, conducted an extensive
plea colloquy under Federal Rule of Criminal Procedure 11, during which Petitioner was
represented by one of his two attorneys. (Rearraignment Tr. at 1-2). The court placed Petitioner
under oath and confirmed that he understood that he could be prosecuted if he gave false
information. (Id. at 2). In response to questions from the Court, Petitioner stated under oath that

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he was in fact guilty of the offenses to which he was pleading guilty, (Id. at 8), and that nobody
“threatened, intimidated or forced [him] to enter a guilty plea.” (Id. at 12). During the colloquy,
the United States described the terms of the plea agreement, including the agreement jointly to
recommend that the district court find “the amount of cocaine that was known to or reasonably
foreseeable to the defendant was in excess of 15 kilograms but less than 50 kilograms,” and
Petitioner confirmed that he understood and agreed with the terms of the plea agreement as they
were described by the government. (Id. at 9-12). The Court also asked Petitioner about his
satisfaction with the work of his attorney. (Id. at 12-13). Petitioner affirmed that he “had enough
time to discuss with [his] attorney any possible defenses he may have” and that he was satisfied
with the services of his attorney. (Id. at 12). When given the opportunity to speak about his
attorney’s services, Petitioner stated, “I’m just thankful.” (Id. at 12-13). Based upon what
Petitioner and his attorney said during the colloquy, Magistrate Judge Cayer accepted
Petitioner’s guilty plea after finding that “it was knowingly and voluntarily made.” (Id. at 13).
Before Petitioner was sentenced, Petitioner’s attorneys filed a number of documents
advocating on behalf of Petitioner. They filed objections to the Presentence Report prepared by
the probation office, (Id.), which was revised on June 6, 2012 (Doc. #45, 3:11-cr-288). They also
submitted letters from a number of different entities describing Petitioner’s success in various
programs and certificates that reflected his academic achievement. (Doc. #52, 3:11-cr-288).
Petitioner’s attorneys also filed a thorough motion that sought a downward departure, a variance,
and relief from the statutory mandatory minimum applicable to his drug-trafficking offense
under the safety valve provision, 18 U.S.C. § 3553(f). (Doc. #53, 3:11-cr-288, at 1, 9, 11-13).

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The court sentenced Petitioner to a term of imprisonment of 135 months. (Sentencing Tr.,
Doc. #72, 3:11-cr-288 (hereinafter “Sentencing Tr.”), at 37-38). During the sentencing hearing,
where he was actively represented by both of his attorneys (Id. at 1-2, 20-22), Petitioner argued,
among other things, that he was not a supervisor and that he qualified for the safety valve
provision. (Id.). Petitioner explained that he submitted a “proffer to the United States,” which he
provided to the Court. (Id.) Petitioner explained that “he did not provide the names of his
suppliers and . . . customers,” because he did not wish to put his family in danger. (Id. at 31-33).
The court noted that the proffer also contained no information about how money was being
laundered by Petitioner’s operation. (Id. at 31). The court determined that Petitioner was not a
supervisor, but that he was not eligible for the safety valve, noting that the safety valve provision
required Petitioner to give a proffer of “every bit of information that he has” related to his
offense or the “same course of conduct” so that the United States “could use it if they want to
prosecute others.” The court concluded that Petitioner was not eligible because he withheld
information from his proffer. (Id. at 31, 34). Petitioner received, however, a downward
adjustment for acceptance of responsibility under § 3E1.1(a) and (b). (Doc. #59, 3:11-cr-288, at
1; PSR at 6.)
The Court of Appeals for the Fourth Circuit affirmed Petitioner’s conviction and sentence
on December 4, 2013. United States v. Trujillo, 547 F. App’x 300 (4th Cir. 2013). The Court
rejected the argument raised in a brief prepared by counsel pursuant to Anders v. California, 386
U.S. 738 (1967), that “trial counsel was ineffective for failing to take the steps necessary to
ensure that Petitioner received the benefit of the safety valve provision.” (Id. at 301). The Court
also found meritless four arguments raised by Petitioner in a pro se supplemental brief: “that he

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received ineffective assistance of counsel, that the drug amount on which his sentence was based
was erroneous, that there was insufficient evidence to support the money laundering conviction
and related increase to his base offense level, and that there exists an unwarranted sentencing
disparity between himself and a co-conspirator.” (Id.)
Petitioner filed a timely Motion to Vacate, and after an initial screening the court ordered
the government to respond within sixty days on December 12, 2014. (Doc. #2). After the court
granted two extensions of time, the government filed its response and a motion to dismiss on
May 14, 2015. (Doc. #10). On May 22, 2015, the court allowed Petitioner thirty days to file his
reply, which the court deems timely as it appears he deposited the Reply in the prison mailing
system within that time period. (Doc. #11).
It appearing that the issues have been fully briefed, the court enters the following
findings, conclusions, and Order denying the petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence.
II.
Petitioner makes the following contentions in his Motion to Vacate:
(1) Petitioner’s trial attorneys were constitutionally deficient;
(2) Petitioner’s appellate attorney was constitutionally deficient; and
(3) Petitioner’s charges and plea agreement were affected by prosecutorial
misconduct.
See (Doc. #1). Notably, in his reply to the government’s response, Petitioner claims to abandon
“all arguments in his § 2255 motion except for the ineffective assistance of counsel as it relates

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to the safety valve issue.” (Doc. #13 at 1). However, this court will still consider all arguments
raised by Petitioner in his original Motion to Vacate, and address each contention seriatim.
III.
A. Ineffective Assistance of Trial Counsel
Petitioner argues that he was not afforded his Sixth Amendment right to effective
assistance of trial counsel, arguing his counsel was responsible for multiple errors that negatively
impacted his sentencing. First, Petitioner argues that his trial counsel forced him to sign the plea
agreement. (Doc. #1 at 5). Petitioner also claims that counsel failed to communicate with him
between the plea hearing and the day before sentencing, leaving him unrepresented for that entire
time. (Id. at 6). Next, Plaintiff argues that his trial counsel failed to investigate the government’s
charges, and instead relied on the government’s word to Petitioner’s detriment. (#1 at 12).
Petitioner alleges that this failure led to an incorrect amount of drugs being used as the basis for
the plea agreement, resulting in a much greater length of time in prison. (Id. at 13). Further,
Petitioner claims trial counsel did not properly investigate the government’s money laundering
charges, and that investigation from his counsel would have resulted in a more definite and
accurate sentence. (Id. at 15). Additionally, Petitioner argues that his trial counsel failed to secure
the reduction in sentence provided for by the safety-valve provision, since counsel’s absence
prevented Petitioner from providing the government with the required substantial information.
(Id. at 8). As a result, Petitioner argues the length of his sentence was negatively impacted and he
is entitled to a hearing over this claim. (Id. at 9).
In response, the government argues that Petitioner cannot show that he was coerced into
signing his plea deal, as he stated under oath that nobody had threatened, intimidated, or forced

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him into entering a guilty plea, (Doc. #11 at 8), making Petitioner’s allegations in his motion
“palpably incredible and patently frivolous or false.” (Id. at 9, citing United States v. Lemaster,
403 F.3d 216, 222-23 (4th Cir. 2005)). The government argues that Petitioner cannot blame his
counsel for their eight-month absence, as Petitioner’s guilty plea and the presentence report
indicated there was little counsel’s presence would accomplish, and that Petitioner’s counsel
nevertheless filed objections and a detailed motion on Petitioner’s behalf. (Id. at 13). As for
Petitioner’s argument over his counsel’s failure to investigate, the government notes that counsel
is not obligated to pursue an investigation if there is strong evidence against doing so, and the
evidence against Petitioner included recorded statements, physical evidence, and testimony of a
codefendant. (Id. at 10-11). Additionally, the government notes that Petitioner has not even
attempted to prove that, but for his counsel’s failure to investigate, Petitioner would not have
entered a guilty plea. (Id.). With respect to Petitioner’s argument over the safety valve provision,
the government points out that Petitioner’s counsel advocated strongly for the application of the
provision, and that it was not denied because of error by counsel, but because Petitioner withheld
relevant key information from his proffer, such as names of his customers, sources of supply, and
how he laundered money. (Id. at 14).
Here, the court finds the government’s arguments compelling, and agrees that Petitioner
has failed to establish any claim that trial counsel’s efforts were constitutionally deficient in this
case. While Petitioner could have qualified for the safety-valve provision, as he claims in his
reply, (Doc. #13 at 1-2), the provision ultimately applies only if Petitioner “has truthfully
provided to the Government all information and evidence the defendant has concerning the
offense or offenses that were part of the same course of conduct or of a common scheme or

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plan.” 18 U.S.C. § 3553(f)(5). As previously stated, Petitioner did not provide the government
with key information relevant to the offenses and conduct. For these reasons, and for the reasons
stated in the government’s response, this court finds Petitioner’s first claim to be without merit.
B. Ineffective Assistance of Appellate Counsel
Petitioner next argues that he was not afforded his Sixth Amendment right to effective
appellate counsel. He argues that his appellate counsel filed an “Anders Brief” without
consulting Petitioner first and failed to raise the issues on appeal that Petitioner wanted raised,
resulting in an improper ruling at the appellate stage. (Doc. #1 at 11). The government counters
that appellate counsel is not required to raise every issue on appeal, and that courts should only
find appellate counsel ineffective when “ignored issues are clearly stronger than those
presented.” (Doc. #11 at 16, citing United States v. Mason, No. 12-8042, 2014 WL 7210976, at
*3 (4th Cir. 2014) (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000))). Petitioner has failed to
identify issues that are clearly stronger than the issues raised which the Fourth Circuit rejected.
As a result, the court finds that Petitioner’s appellate counsel was not constitutionally deficient in
any way, and that Petitioner’s second claim thus lacks merit.
C. Prosecutorial Misconduct
Finally, Petitioner argues that prosecutorial misconduct affected the outcome of the
proceedings. He argues that the government knowingly used false information in relation to both
the drug and money laundering charges, but never took steps to avoid or correct this misuse.
(Doc. #1 at 17). Consequently, Petitioner alleges the charges against him were actually much
weaker than the prosecution claimed and Petitioner was thus wrongly subjected to a much

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harsher sentence. (Id. at 18). Additionally, Petitioner argues the government’s charge of money
laundering is based on his codefendant’s false statements. (Id. at 19).
In response, the government notes that Petitioner waived his theory of prosecutorial
misconduct by pleading guilty, as a guilty plea “conclusively establishes the elements of the
offense and the material facts” and functions as “a waiver of all nonjurisdictional defects.” (Doc.
#11 at 17, citing United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993)). Further, the
government notes a claim of prosecutorial misconduct is procedurally barred, as he raised this
theory for the first time in his motion, and failure to raise prosecutorial misconduct during the
criminal proceedings bars relief unless Petitioner demonstrates either cause and prejudice or
actual innocence. Since Petitioner does not allege either one, his claim cannot stand. Lastly, the
government argues Petitioner has failed to make more than conclusory allegations that the
prosecutor’s conduct was improper and that such conduct deprived Petitioner of a fair resolution
of the chrages, both of which must be proven to succeed on a prosecutorial misconduct claim.
(Id. at 19).
Here, the court finds that Petitioner’s claim of prosecutorial misconduct is without merit,
for the reasons described above by the government.
IV.
Denial of Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, this court declines to
issue a certificate of appealability as Petitioner has not made a substantial showing of a denial of
a constitutional right. 28 U.S.C. § 2253(c)(2); Miller El v. Cockrell, 537 U.S. 322, 336 38
(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would

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find the district court's assessment of the constitutional claims debatable or wrong); Slack v.
McDaniel, 529 U.S. 473, 484–85 (2000) (in order to satisfy § 2253(c) when court denies relief
on procedural grounds, a petitioner must demonstrate both that the dispositive procedural ruling
is debatable, and that the petition states a debatable claim of the denial of a constitutional right).
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) is DENIED, and this action is DISMISSED
WITH PREJUDICE. The court declines issuance of a Certificate of Appealability for the
reasons provided herein.

Signed: July 6, 2015

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