Aguilar v. United States of America

Filing 3

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Edgardo Josue Aguilar. Petitioners Motion is DENIED, as more fully set out. Signed by Honorable David L. Russell on 4/10/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
EDGARDO JOSUE AGUILAR,
Defendant.

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Case No. CR-12-297-R
CIV-16-987-R

ORDER
Before the Court is Petitioner’s Motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. [Doc. 983]. The Government has responded. [Doc. 1000]. For the
reasons that follow, Petitioner’s Motion is DENIED.
I
In March of 2013, a grand jury sitting in the Western District of Oklahoma charged
Petitioner Edgardo Aguilar in a superseding indictment with (1) conspiracy to possess with
intent to distribute and to distribute methamphetamine under 21 U.S.C. § 846; (2)
possession with intent to distribute methamphetamine under 21 U.S.C. § 841(a)(1); and (3)
the use of a communication facility to facilitate the acquisition and distribution of
methamphetamine under 21 U.S.C. § 843(b). After standing trial alongside three other codefendants from the Zamarripa drug-trafficking organization, Petitioner was convicted on
all counts and sentenced to 188 months’ imprisonment. [Docs. 532, 723].
Mr. Aguilar raised three issues on appeal: (1) the jury had convicted him with
insufficient evidence; (2) the Government’s questions about a co-defendant’s silence
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violated his due process rights; and (3) the cumulative effect of these errors at his trial
warranted reversal. Rejecting his arguments, the Tenth Circuit affirmed. United States v.
Aguilar, 609 Fed. Appx. 960 (10th Cir. 2015). [Docs. 865, 871]. This Court later reduced
Petitioner’s sentence to 151 months upon his motion under 18 U.S.C. § 3582. Petitioner
now seeks relief under 28 U.S.C. § 2255, asking this Court to set an evidentiary hearing so
that Petitioner can establish his counsel’s ineffective assistance during plea negotiations
and at sentencing.
II
A. Ineffective Assistance of Counsel During Plea Negotiations
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Any successful
claim of ineffective assistance of counsel must satisfy the two-pronged test laid out in
Strickland v. Washington, 466 U.S. 668, 697 (1984). First, a defendant must show that his
counsel’s performance was deficient in that it “fell below an objective standard of
reasonableness.” Id. at 688. This requires overcoming the strong presumption that
counsel’s performance fell within the broad range of reasonable professional conduct.
Trice v. Ward, 196 F.3d 1151, 1159 (10th Cir. 1999). Second, the defendant must show
that his counsel’s deficient performance actually prejudiced his defense. In other words, a
defendant “must show there is a reasonable probability that, but for his counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. Conclusory allegations or vague descriptions of the alleged deficient
performance will not suffice. United States v. Fisher, 38 F.3d 1144, 1146–1147 (10th Cir.
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1994). And failure to demonstrate either prong is fatal to a petitioner’s claim for ineffective
assistance of counsel. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
In his first argument for habeas relief, Mr. Aguilar argues that Counsel failed to
inform him of the advantages and disadvantage of the Government’s plea deal on the eve
of trial, resulting in Mr. Aguilar rejecting the deal and receiving a heightened sentence. “As
a general rule, defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the accused.”
Missouri v. Frye, 566 U.S. 133, 145, 132 S. Ct. 1399 (2012). Further, counsel has a “critical
obligation . . . to advise the client of ‘the advantages and disadvantages of a plea
agreement.’ ” Padilla v. Kentucky, 559 U.S. 356, 370, 130 S.Ct. 1473, 1484 (2010).
Petitioner claims that counsel never provided him with details of the government’s last
minute offer, never explained how evidence at trial could affect his sentencing under the
United States Sentencing Guidelines, and never informed him of the advantages of a plea
bargain. As proof, Mr. Aguilar attaches a letter from his counsel sent to him in prison in
May 2016—nearly three years after his jury trial—explaining that, to the best he could
recall, the Government’s final proposed plea deal offered what would have likely amounted
to a five-year prison term; that the offer was never reduced to writing; that Counsel
informed the Court before trial that Mr. Aguilar had rejected the deal; and that Counsel
could not recall if he gave Mr. Aguilar any details about the last plea deal. [Doc. 987, at
17].
The record and evidence largely bear this out. For one, the Court asked each
defendant before trial whether the Government had offered a plea deal to each defendant.
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Mr. Aguilar made no objection when Counsel explained to the Court that Mr. Aguilar had
been offered a plea deal, which he refused despite counsel having explained the advantages
of it. [Trans. Of Voir Dire, at 3–4]. The Government also provides an affidavit from Mr.
Aguilar’s trial counsel explaining that he met with Mr. Aguilar several times before trial to
discuss the advantages and disadvantages of the plea deal and that he, along with Mr.
Aguilar’s wife, wanted Mr. Aguilar to accept the plea deal in which he would receive an
approximately seven-year sentence with the potential for release after five years. [Doc.
1000, Ex. 1, at 1–2]. Mr. Aguilar refused the deal, asserted his innocence, and asked
counsel why he should plead guilty when he did nothing wrong. [Id.].
“[W]hen a defendant’s claim is that counsel’s deficient performance caused him to
reject a plea offer and proceed to trial, he must show that ‘there is a reasonable probability
that . . . defendant would have accepted the plea deal.’” United States v. Watson, 766 F.3d
1219, 1226 (10th Cir. 2014) (citing Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012)). This
Mr. Aguilar cannot do. “A defendant who maintains his innocence at all the stages of his
criminal prosecution and shows no indication that he would be willing to admit his guilt
undermines his later § 2255 claim that he would have pleaded guilty if only he had received
better advice from his lawyer.” Sparks v. United States, 2016 WL 4273192, at *4 (D. Kan.
Aug. 15, 2016) (citing Sanders v. United States, 341 F.3d 720, 723 (8th Cir. 2003)). Even
if there was a last-second informal plea deal that counsel failed to convey, the evidence
shows that Mr. Aguilar had already rejected a similar plea deal and was intent on
proceeding to trial. Mr. Aguilar thus “cannot demonstrate prejudice because he does not
point to any evidence that he would have accepted a plea offer had Mr. Wallace discussed
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it with him.” Watson, 766 F.3d at 1226. In fact, “the most that can be said with respect to
prejudice is that Mr. [Aguilar] asserts he was prejudiced; his mere self-serving statement,
which does no more than open the door to conjecture, is not enough.” Id.
B. Ineffective Assistance of Counsel at Sentencing
Mr. Aguilar’s second argued ground for relief fares no better than his first. Mr.
Aguilar believes he is entitled to a reduction in his sentence under Amendment 794 to the
United States Sentencing Guidelines, which lists factors a sentencing court should consider
in deciding to reduce a sentence for a defendant’s minor role in the offense. Mr. Aguilar
contends that his counsel’s failure to move the Court for a downward departure based on
Amendment 794 constituted ineffective assistance of counsel.
Amendment 794 took effect on November 1, 2015—nearly two years after
Defendant received his sentence on November 5, 2013. Even if it were retroactively
applicable,1 however, relief on this ground would still be inappropriate because Mr. Aguilar
did not raise the issue of a mitigating-role on direct appeal. Granted, Amendment 794 was
not in effect yet. Yet Mr. Aguilar could have still argued at sentencing that he was entitled
to a decrease in his offense level under U.S.S.G. § 3B1.2. Amendment 794 simply revised
the commentary to § 3B1.2 by “introduc[ing] a list of non-exhaustive factors that a
sentencing court should consider in determining” whether defendant should receive this
mitigating-role adjustment. United States v. Gomez-Valle, 828 F.3d 324, 329 n. 23 (5th Cir.

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Amendment 794, however, is not retroactively applicable. The United States Sentencing Commission may
of course specify if certain amendment apply retroactively to cases on collateral review. See USSG §
1B1.10(d)(2015) (listing retroactive guideline amendments). Amendment 794, though, is not listed in §
1B1.10(d) as a retroactively applicable amendment.

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2016). Mr. Aguilar, though, never argued on appeal that he was entitled to any offenselevel decrease. “Failure to present an issue on direct appeal bars a defendant from raising
it in a § 2255 motion ‘unless he can show cause excusing his procedural default and actual
prejudice resulting from the errors of which he complains, or can show that a fundamental
miscarriage of justice will occur if his claim is not addressed.’” United States v. Bolden,
472 F.3d 750, 751–52 (10th Cir. 2006). Because Petitioner has not made this showing, he
is not entitled to relief.
Finding appropriate neither of Petitioner’s offered grounds for relief, the Court
declines to hold an evidentiary hearing. “In response to a § 2255 motion, the district court
must hold an evidentiary hearing on the prisoner’s claims unless the motion and files and
records of the case conclusively show that the prisoner is entitled to no relief.” United
States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996). Both Mr. Aguilar’s Motion and the
record show that he is not entitled to relief. His motion is thus denied without a hearing.
III
Further, the Court denies Mr. Aguilar a Certificate of Appealability (COA) under
Rule 11(a) of the Rules Governing Section 2255 Cases in the United States District Courts.
Given Mr. Aguilar’s inability to show counsel’s performance in any way prejudiced him,
the Court denies Mr. Aguilar’s petition on the merits. When a court denies a habeas petition
on the merits, a petitioner is entitled to a COA only if he demonstrates “that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029 (2003). Because Mr.
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Aguilar has not made this showing, he is not entitled to a COA. He may seek a certificate
from the court of appeals under Federal Rule of Appellate Procedure 22 if he wishes to
appeal the Court’s ruling on his motion.
In conclusion, Mr. Aguilar’s motion under 28 U.S.C. § 2255 is DENIED and
DISMISSED WITH PREJUDICE because it lacks merit.
IT IS SO ORDERED this 10th day of April 2017.

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