Vazquez-Rios v. United States of America

Filing 8

OPINION AND ORDER. DENIED 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 02-214.)filed by William Vazquez-Rios. Signed by Judge Salvador E Casellas on 12/8/2009.(LB)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

W IL L IA M VAZQUEZ-RIOS, Petitioner v. Civil No. 06-2036 (SEC) U N IT E D STATES OF AMERICA, R espondent

O P I N IO N & ORDER P e n d in g before this Court is Petitioner William Vazquez-Rios' ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.A § 2255, seeking to invalidate h is sentence in Crim. No. 02-214 (SEC). See Docket # 1. The United States of America (" U n ite d States") opposed the Motion, and Petitioner proffered a Reply. See Docket ## 4&7. After considering the filings, and the applicable law, Petitioner's motion is hereby DENIED. Factual and Procedural Background P e t i tio n e r was a member of a conspiracy to distribute narcotics. In 2000, authorities in te rc e p te d a first telephone call with another co-conspirator where he discussed his in v o lv e m e n t in the processing of drugs for distribution, and a second call where Petitioner d isc u s s e d future drug transactions. See Docket # 19. In 2002, the United States indicted P e titio n e r, along with 16 other co-defendants, for conspiracy to distribute narcotics. On D e c e m b e r 12, 2003, after reaching a plea agreement,1 Petitioner pled guilty to conspiracy to p o s s e ss with intent to distribute at least four hundred (400), but less than five hundred (500) g ra m s of cocaine pursuant to 42 U.S.C. §§ 841(a)(1) & 846. Crim. No. 02-214 at Docket # 522.

1 B e c a u s e he was considered a career offender the base level for sentencing was thirty-two, pursuant to U.S.S.G. § 4B1.1(b)(c), which was reduced three (3) levels, to twenty-nine, for acceptance of responsibility in accordance with U.S.S.G. § 3B1.1(b)(c). See Docket # 4 at 3.

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O n April 16, 2004, this Court sentenced him to 151 months of imprisonment, followed by three ye a rs of supervised release. Id. Said sentence included a career offender enhancement, because P e titio n e r had been convicted of four previous felonies, albeit of an apparently non-major n a tu re , including petty distribution and "chain-snatching" robbery. Id. at Docket # 519.

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Petitioner appealed this sentence to the First Circuit. On appeal, he argued, to no avail, th a t his counsel failed to attack the constitutionality of the mandatory sentencing guidelines u n d e r relevant case law,2 and that United States v. Booker, 543 U.S. 220 (2005), should have p re c lu d e d the imposition of aggravating factors, such as career offender status. The First C irc u it concluded that he had not made an objection sufficient to preserve an argument under B o o k e r, and with regards to his plea agreement and sentencing stated, in pertinent part: In our view, the record, including the written plea agreement and the transcript o f the sentencing hearing, does not reveal a reasonable probability that appellant w o u ld have received a more lenient sentence under an advisory guideline regime. T h e court was aware that the government had already effectuated a significant re d u c tio n in the sentence in negotiating the amount of drugs for which appellant w o u ld be held responsible. The record reflects that the court regarded the s e n te n c e it imposed, which was at the low end of the sentencing range as agreed u p o n by the parties, as appropriate in light of the factors pressed by appellant on a p p e a l: his criminal history, his role in the offense, and his history of drug a d d ic tio n . U n ite d States v. Vázquez-Ríos, No. 04-1727 (1st Cir. July, 19, 2005) (unpublished).3 P e titio n e r seeks relief under 28 U.S.C. § 2255, claiming that his counsel was ineffective d u rin g the sentencing phase of his case for: 1) not challenging the constitutionality of the m a n d a to ry nature of the sentencing guidelines in light of Apprendi ; 2) failing to challenge this C o u rt's lack of jurisdiction in imposing career offender enhancement where said enhancement w a s not proven to a jury; 3) failing to contest that Petitioner's prior felony convictions allegedly f a i le d to qualify him for a career offender enhancement; and 4) failing to request downward d e p a rtu re for petitioner's self surrender. Docket # 1.

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A p p r e n d i v. New Jersey, 530 U.S. 466 (2000); Blakely v. W a s h in g to n , 542 U.S. 296 (2004). C e r tio r a r i to the United States Supreme Court was subsequently denied as well.

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CIVIL NO. 06-2036 (SEC) S ta n d a r d of Review

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F e d e ra l District Courts have the jurisdiction to entertain motions under section 2255 of title 28 of the United States Code when a petitioner is incarcerated by sentence of a federal c o u rt. See 28 U.S.C. §2255. The section provides four grounds on which a federal prisoner may c h a lle n g e his sentence: (1) the sentence imposed is in violation of the Constitution and/or laws

6 o f the United States; (2) the court lacked the jurisdiction to impose the sentence; (3) the 7 s e n te n c e exceeded the maximum term authorized by law; or (4) the sentence is otherwise 8 s u b je c t to collateral review. See id. Should a court find any of these errors, it "shall vacate and 9 s e t the judgment aside and shall discharge the prisoner or re-sentence him or grant a new trial 10 o r correct the sentence as may appear appropriate." Id. 11 T h e petitioner bears the burden of establishing, by a preponderance of the evidence, that 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 h e is entitled to relief. United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). In particular, " [ t]h e burden is on the petitioner to demonstrate ineffective assistance by a preponderance of t h e evidence." Lema v. U.S., 987 F.2d 48, 51-52 (1st Cir. 1993). Also, in petitions that are in a d e q u a te on their face, are "conclusively refuted as to the alleged facts by the files and records o f the case, summary dismissal is appropriate." Id. Additionally, "even a section 2255 petition p re d ic a te d on specific assertions of fact allegedly supported in the record may be dismissed s u m m a rily by the district court," provided "the district court can ... `test' the ... allegations by a s su m in g arguendo their truth, and then assessing their sufficiency in light of the relevant c o n s titu tio n a l standards and the record." Id. A t present Petitioner has challenged the adequacy of his counsel's actions in the s e n te n c in g phase of his conviction. The standard of review for an attorney's performance is a " v e ry forgiving" one. See U.S. v. Theodore, 468 F.3d 52, 57 (1st Cir. 2006) (citing Delgado v . Lewis, 223 F.3d 976, 981 (9th Cir. 2000)). The Sixth Amendment to the Constitution of the U n ite d States provides in part that: "[i]n all criminal prosecutions, the accused shall enjoy the rig h t to [...] have the Assistance of Counsel for his defence (sic)." U.S. CONST. amend. VI. The

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le g a l assistance envisioned by the Amendment, however, is not satisfied by merely having a la w ye r present alongside the defendant during trial. In order to comply with the Sixth

A m e n d m e n t guarantee, counsel must provide "effective assistance." Strickland v. Washington, 4 6 6 U.S. 668, 685-686 (1984). 5 6 7 8 9 10 11 12 13 14 15 16 17 th e defendant. Id. at 694. That does not mean, however, that the court must address the two 18 19 20 21 22 23 24 25 26 p ro n g s of the test in the order above, or even analyze both. If the court is satisfied that the d e f e n d a n t cannot establish either that Counsel was deficient, or that such deficiency prejudiced th e defendant, it may dispose of the claim without further ado. See id. at 697. Finally, the court's evaluation of counsel's performance must be highly deferential. Id. a t 691. The Supreme Court held that "[i]t is all too tempting for a defendant to second-guess c o u n s e l's assistance after conviction or adverse sentence, and it is all too easy for a court, e x a m in in g counsel's defense after it has proved unsuccessful, to conclude that a particular act o r omission of counsel was unreasonable." Id. Therefore, to make a fair assessment of an A convicted defendant who questions the validity of the criminal proceeding against him b y way of claiming ineffective assistance of counsel must meet the two-part test established by th e U.S. Supreme Court in Strickland. This requires the criminal defendant to first "establish th a t (1) `counsel's representation fell below an objective standard of reasonableness', and (2) `a reasonable probability that, but for counsel's unprofessional errors, the result of the p ro c e e d in g would have been different.'" Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (c itin g Smiley v. Maloney, 422 F.3d 17, 20 (1st Cir. 2005) (quoting Strickland, 466 U.S. at 6 8 4 )). In relation to the first part of the test, the U.S. Supreme Court has stated that there is "a s tro n g presumption that counsel's conduct falls within the wide range of reasonable professional a s sis ta n c e ." Strickland, 466 U.S. at 700. Even if a criminal defendant overcomes this rather formidable obstacle, his ineffective a s sis ta n c e claim will not prosper unless he can also establish the second prong of the test. See id. Strickland's holding also requires a showing that counsel's deficient performance prejudiced

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a tto rn e y's performance, the court should attempt to eliminate the distorting effects of hindsight. Id. Applicable Law and Analysis A s a preliminary issue, this Court must reiterate that the First Circuit has consistently

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h e l d that: "[i]ssues disposed of in a prior appeal will not be reviewed again by way of a 28 U .S .C . § 2255 motion." Singleton v. U.S., 26 F.3d 233, 240 (1st Cir. 1994) (citing Dirring v. U .S ., 370 F.2d 862, 864 (1st Cir. 1967)). Thus, any issue seen on direct appeal by the First C irc u it, relating to Crim. No. 02-214-7 (SEC), is precluded from being considered by this Court th ro u g h the use of a 28 U.S.C. § 2255 motion. In addition, in so far as petitioner is seeking to a d d new elements to his constitutional claim not raised in his direct appeal, he must show cause f o r the failure to do so and actual prejudice stemming from it. See Argencourt v. United States, 7 8 F.3d 14, 16 n.1 (1st Cir. 1996); Knight v. U.S., 37 F.3d 769, 774 (1st Cir. 1994). C a r e e r Offender Status Where Petioner's argument on this front has the most force is when he highlights that h is prior convictions were minor felonies, a fact that the United States does not dispute. He thus a rg u e s that the imposition of a career offender enhancement violated his rights under the Sixth A m e n d m e n t of the United States Constitution, as elaborated in Booker, because it was imposed b y this Court without a plea agreement to the same, nor following a finding by a jury.

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Nevertheless, this Court agrees with the United States' assertions that according to Booker re c id iv is m is not a separate element of an offense that must be independently proven. Booker, 5 4 3 U.S. at 243; Almendarez-Torres v. United States, 523 U.S. 224, 247 (1997). Therefore, P e titio n e r's arguments regarding the constitutionality of the application of the career offender e n h a n c e m e n t to his case lack any basis in the law. This is highlighted by the fact that the First C i rc u it validated the original sentence, taking into consideration the application of said e n h a n c e m e n t. Vázquez-Ríos, App. No. 04-1727. With regards to the sufficiency of the legal representation he received on this point of la w , Petitioner's counsel duly argued that this Court should consider that his prior felony

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convictio n s , while sufficient to technically constitute the enhancement, seemed disproportionate w i t h the 151-month sentence finally handed down by this Court.4 See Crim. No. 02-214-7 (S E C ), Docket # 519 at 3-4. A similar argument was also part of the record reviewed by the F irs t Circuit, and thus rejected upon direct appeal. The First Circuit noted that Petitioner failed

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to make sufficient objections in his plea to preserve any rights under Booker. It further c o n c lu d e d that: "The record reflects that the court regarded the sentence it imposed, which was a t the low end of the sentencing range as agreed upon by the parties, as appropriate in light of th e factors pressed by appellant on appeal: his criminal history, his role in the offense, and his h isto ry of drug addiction." Vázquez-Ríos, App. No. 04-1727 (emphasis added). Because petitioner cannot use 28 U.S.C. § 2255 to re-litigate an issue at disposed of in a prior appeal, this Court will not give a second review to the imposition of a career offender e n h a n c e m e n t. To succeed in the § 2255 motion, herein Petitioner must prove that even counsel w a s deficient in failing to argue that in light of the above his sentence was unconstitutional. Strickland, 466 U.S. at 697. Given that said argument was directly rejected on appeal, there is n o basis for finding fault with his representation, who nonetheless, made an impassioned a rg u m e n t on this very point, and could have done very little else given the particular facts of the case. Mandatory Nature of the Sentencing Guidelines

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P e titio n e r claims that counsel was ineffective for failing to raise Apprendi issues. This C o u rt first notes that said argument was directly rejected on appeal, and is thus not subject to c o lla te ra l attacks. Nevertheless, at the time of the plea, the sentencing guidelines's mandatory n a tu re had not been struck down by Booker, and any arguments to that effect would have been s p e c u la tiv e . Without the distorting effects of hindsight, no reasonable person could have e x p e c te d his defense to make conjectural legal arguments based on standards yet to be e s ta b lis h e d . Strickland, 466 U.S. at 700

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P e titio n e r at no point argues that said convictions do not exist, rather he takes issue with the ramifications the had

o n his sentence.

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Civil No. 06-2036(SEC) S e lf-S u r re n d e r

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P e titio n e r's final argument is that, " he was provided ineffective assistance of counsel for c o u n s e l failing to request a downward departure for Petitioner's self-surrender when Petitioner re a liz e d he had been indicted by the grand jury." Docket # 1 at 9. This claim not only conflicts

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w ith the reality of the record, but under no circumstances would be grounds for the remedy he s e e k s . Moreover, this Court should point out that Petitioner's counsel did in fact plead that P e titio n e r's self-surrender should weigh favorably in the sentencing decision. Crim. No. 02-214-

8 7 (SEC), Docket # 519 at 8. 9 A 28 U.S.C. § 2255 motion is an inappropriate vehicle for the self-surrender argument,

10 b e c a u s e no cause has been show as to why this argument could not have been directly argued 11 o n appeal. Knight, 37 F.3d at 774. Even if it were not precluded, it lacks merit within the 12 p a rtic u la r facts of this case because Petitioner's counsel undoubtedly brought the issue before 13 th is Court at sentencing, and no case law has been cited to the effect that self-surrender in any 14 15 16 17 a rg u m e n ts based around Petitioner's self-surrender. 18 19 20 Conclusion In light of the above, this Court concludes that Petitioner's claim for ineffective assistance o f counsel lacks support in the record. As a result, his § 2255 motion is DENIED, and this case w a y binds a trial court as grounds for a lower sentence. Moreover, the self-surrender may well h a v e weighed in the sentence, which was on the low end of the guidelines, and also could have in f lu e n c e d the United States' willingness to make a plea in the first place. There is no reason to b e lie v e counsel, via a written downward departure motion, could have made any other successful

21 is hereby DISMISSED with PREJUDICE. 22 23 24 25 26 I T IS SO ORDERED. In San Juan, Puerto Rico, this 8th day of December, 2009 S / Salvador E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge