Mangual-Garcia v. USA

Filing 107

OPINION AND ORDER - GRANTING 1 Section 2255 Motion filed pro se; VACATING Petitioner's convictions and sentences in Crim. No. 04-0079(CCC). Motion terminated: 102 Report and Recommendation. Signed by Judge Carmen C. Cerezo on 7/14/2015. (mld)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ANDY WILLIAMS MANGUAL-GARCIA
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant

CIVIL 08-2241CCC

OPINION AND ORDER
Petitioner Andy Williams Mangual-García (“Mangual”) was found guilty
after a jury trial on two counts charging him with violating the controlled
substances laws of the United States, and on August 2, 2005 was sentenced
to serve three hundred sixty-four (364) months of imprisonment. After his
direct appeal was rebuffed by the Court of Appeals which affirmed both his
conviction and sentence on September 18, 2007, Mangual collaterally attacked
his sentence under 28 U.S.C. § 2255 claiming that he was ineffectively
assisted by his trial counsel Jorge Armenteros-Chervoni (“Armenteros”). We
denied most of his claims of ineffective assistance on January 21, 2010
(D.E. 11), but referred two specific claims for an evidentiary hearing to then
U.S. Magistrate-Judge Justo Arenas, to wit, that counsel had failed to inform
him about a plea offer made by the government prior to the start of trial and
that counsel did not inform him the difference between going to trial and
pleading guilty. After holding the hearing on May 25, 2010, Magistrate-Judge
Arenas rendered a report on June 4, 2010 (D.E. 21) where he recommended
that Mangual’s surviving allegations of ineffective assistance of counsel be
denied.

We adopted said report, which petitioner failed to object, on

November 30, 2010 (D.E. 26), and dismissed his 28 U.S.C. § 2255 motion on
that same date (D.E. 27).

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Mangual appealed said dismissal, and on March 1, 2012 the Court of
Appeals vacated the judgment denying the claims that were the subject of the
evidentiary hearing conducted on May 25, 2010 (i.e. that counsel was
ineffective in failing to advise the petitioner of the details of a plea offer and in
failing to explain to him the difference between pleading guilty and going to
trial) given that petitioner had not been represented by appointed counsel
during said hearing. See D.E. 57. The Court cited to Bucci v. United States,
662 F.3d 18 (1st Cir. 2011), asserting that Rule 8(c) of the Rules Governing
Section 2255 Proceedings requires the appointment of counsel for indigent
petitioners if an evidentiary hearing is held. The Court of Appeals remanded
the case with instructions that petitioner be appointed counsel and to conduct
a new evidentiary hearing on the two claims at issue.

Pursuant to the

Mandate, petitioner was appointed counsel and a new evidentiary hearing was
ordered before a Magistrate-Judge, to be held within forty-five days after newly
designated counsel filed the notice of appearance (D.E. 59). Two evidentiary
hearings were held before U.S. Magistrate-Judge Marcos López on
September 7 and 25, 2012.

He subsequently filed a Report and

Recommendation on December 31, 2013 (D.E. 96) where, albeit finding that
counsel Armenteros legal representation of petitioner “fell below an objective
standard of reasonableness,” he ultimately concluded that Mangual did not
suffer prejudice “because no matter what plea offer the government could have
extended, [he] would have insisted on going to trial as he believed that no
co-conspirator would take the stand and testify at trial.” Id., at p. 18. Thus, he
recommended that Mangual’s § 2255 Motion be denied.
Our review of the Magistrate-Judge’s Report revealed that, throughout
his analysis and in reaching his conclusion, he made reference to testimony
from petitioner and counsel Armenteros that had been elicited during the

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May 25, 2010 hearing before Magistrate-Judge Arenas, which according to the
holding in Bucci had to be treated as a nullity.

Upon finding that

Magistrate-Judge López erred in using testimonies from the May 25, 2010
hearing, we recommitted the matter to him pursuant to 28 U.S.C.
§ 636(b)(1)(C) on July 21, 2014 “for a new Report and Recommendation that
treats the May 25, 2010 hearing as a nullity.” D.E. 101 at p. 3.
Magistrate-Judge López filed his Amended Report and Recommendation
(“AR&R”) on August 18, 2014 (D.E. 102), which petitioner objected on
September 8, 2014 (D.E. 103).
The first prong of the two-part Strickland test enunciated in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) -- whether trial counsel’s
performance was deficient when measured by standards of objective
reasonableness -- has been met. As to the second prong -- which requires that
the Court determine if counsel is found to have been deficient, whether the
attorney’s

deficient

performance

prejudiced

petitioner

--

the

U.S. Magistrate-Judge answered “NO” in his Amended Report and
Recommendation (D.E. 102).
The following assertions set forth by the U.S. Magistrate-Judge regarding
the evidence of the testimonies provided during the hearing are relevant to his
flawed analysis regarding the second inquiry on prejudice. The Court is not
striking credibility findings made by the Magistrate-Judge such as that he had
“no reason to doubt counsel Armenteros’ testimony that he communicated to
petitioner the government’s willingness to recommend a 14-year term of
imprisonment” in consideration for a guilty plea. AR&R, p. 5. The related
findings or observations as to whether counsel explained to petitioner the
details of the 14-year plea offer are relevant. Also relevant is the finding that
“counsel Armenteros was not clear as to whether a 10-year offer was ever

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discussed with petitioner Mangual.” AR&R, pp. 5-6. The Report points out that
attorney Armenteros testified that “the prosecutor mentioned that the lowest
she would go would be 10 years.” Asked what he did regarding the 10-year
offer, he expressed “this is where I have my doubts. I’m not exactly sure if
I did, indeed, communicate that offer to Andy.”

AR&R, p. 6.

The

U.S. Magistrate-Judge also found that counsel Armenteros during the hearing
“acknowledged that the 10-year offer was never discussed fully” and that
counsel also averred: “I certainly did not discuss that offer (referring to the
10-year plea offer), as perhaps I should have, as I did with the 14-year offer.”
AR&R, p. 6. The Magistrate-Judge then found “that more weight should be
given then to petitioner’s contention that he was never made aware of an
option in which the government would be willing to recommend ten years of
imprisonment pursuant to a plea agreement.” However, he discarded the
10-year plea offer on the grounds that it was not a formal offer because it was
not in writing, no specific guideline calculations were discussed, and no
expiration date was set. The lack of formality of the 10-year plea offer also
characterized the 14-year plea offer, as the record attests. The rejection by the
Magistrate-Judge of the 10-year offer for lack of formality contrasts with his
recognition of the 14-year plea offer, which was also wanting in formality, as
shown by the following statement given by trial counsel Armenteros at the
September 25, 2012 hearing:
ARMENTEROS: That is correct. And, the plea was never
contextualized [sic] in the guidelines before. Okay? Lynn just
gave me “You get fourteen”, and we never really talked about the
guidelines at all. Okay?
AR&R, p. 9.

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The Magistrate-Judge ultimately determined in his Report and
recommendation that:
[A] review of the evidence regarding counsel Armenteros’s
performance during the plea bargaining process shows that his
conduct fell, at least in some respects, below an objective standard
of reasonableness. Regardless of whether the plea offer
communicated was for a sentence recommendation of fourteen
years of imprisonment or ten, it is clear that counsel Armenteros
did not thoroughly discuss the United States Sentencing
Guidelines with petitioner and how they would apply to him in his
particular case. Petitioner testified that counsel Armenteros never
explained to him the United States Sentencing Guidelines, how
said guidelines applied to his case, what the guideline calculations
could be if he was convicted at trial, and the benefits of a reduction
in points for acceptance of responsibility if he pled guilty, ECF
No. 90, at 9, 10. Counsel Armenteros’s testimony did not
contradict petitioner’s testimony as to these matters.
COURT : Mr. Armenteros, did you ever discuss the United States
Sentencing Guidelines with the petitioner, Andy Williams
Mangual-García?
ARMENTEROS : I mentioned the Sentencing Guidelines. But, did
I discuss them as pertaining to the case? The answer is no . . . Did
we go into how we would fit into the Sentencing Guidelines in his
sentence? The answer is no.
ECF No. 87, at 18, 19.
AR&R, pp- 7-9.
The Magistrate-Judge unequivocally concluded that:
Simply mentioning the existence of United States Sentencing
Guidelines to a client is not enough; an attorney has the duty to
explain to a client, to the extent reasonably possible, potential
scenarios of applicable calculations within the particular context of
the circumstances of the case and the defendant’s criminal history.
A discussion of the United States Sentencing Guidelines may help
a defendant to understand why the prosecutor is making a
particular sentencing recommendation, or to make a counteroffer
based on different or adjusted guideline calculations.
AR&R, p. 9.
Regarding the issue whether counsel failed to advise petitioner of the
difference between pleading guilty and going to trial, the Magistrate-Judge also

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found that counsel’s legal representation of Mangual fell below an objective
standard of reasonableness. The Magistrate-Judge specifically found that:
Counsel Armenteros . . . never mentioned to Mangual the statutory
minimum terms of imprisonment contingent upon the quantities of
controlled substances involved in the offense. ECF No. 87 at 18.
He is also not sure of whether he warned the petitioner of the
maximum term of imprisonment that he was facing as to both
counts of the indictment if convicted, that is, life. Moreover, as
previously stated, counsel Armenteros did not explain the United
States Sentencing Guidelines to his client either in the context of
a plea offer or trial, if convicted.
AR&R, p. 10.
Upon reaching the second prong of the Strickland test -- whether the
attorney’s deficient performance prejudiced petitioner Mangual -- the
Magistrate-Judge observed that “[c]ounsel Armenteros’ candid admission of
his failure to thoroughly discuss with his client the ramifications of the
alternatives of pleading guilty versus going to trial presents serious concerns.”
AR&R, pp. 12-13. The Magistrate-Judge then turned to the issue of whether
there was a reasonable probability that petitioner would have accepted the plea
bargain offer. He focused on whether petitioner would have taken the 14-year
plea offer and discarded the 10-year plea offer as to which he had found that
there was a reasonable probability that Mr. Mangual would have accepted it.
Again, the 10-year plea offer was not a part of the reasonable probability
acceptance analysis since it was rejected by the Magistrate-Judge as an
informal offer. The Magistrate-Judge’s conclusions regarding Mr. Mangual’s
“hesitation and equivocal answer to the question of whether he would have
taken the 14-year plea offer” is based on the following colloquy:
PROSECUTOR: Mr. Mangual, if the good time credits and credits
for treatment programs were unable to bring the fourteen years
down to eight years, if it would be higher than eight years, you
would have rejected it, right?
PETITIONER: At that point in time, I don’t know. I can’t tell you
one way or the other. Right now, I could say maybe I would have

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because I’ve already been in for nine years, but, back then, I don’t
know. But, maybe, if he had told me that, if I had gone to trial I
would have gotten many more years, then maybe I would have.
AR&R, at p. 14.
Magistrate-Judge López determined that “petitioner’s ‘maybe’ is an
invitation to speculate” and concluded that “although petitioner clearly received
ineffective assistance of counsel he has not shown that he has suffered
prejudice as a result of his trial counsel’s performance.” AR&R, p. 15. As
observed in United States v. Day, 969 F.2d 39, 43 (3rd Cir. 1992), “[k]nowledge
of the comparative sentence exposure between standing trial and accepting a
plea offer will often be crucial to the decision whether to plead guilty.” That
knowledge was precisely what petitioner lacked prior to going to trial.
According to his testimony, he had already served nine years of imprisonment
at the time of the September 7, 2012 hearing. The statement that “back
then . . . if the attorney had told him that if he went to trial he would get many
more years (referring to the 14-year offer) then maybe he would have accepted
such offer” is not an invitation to speculate but, rather, the direct result of
counsel having failed to explain to petitioner the different sentence exposure
that he faced between going to trial and accepting the 14-year plea offer.
It is unfair to conclude that petitioner has merely proffered speculation on
whether he would have with reasonable probability pled guilty back in 2005.
This petitioner received no guidance or counseling that would have allowed him
to reasonably decide whether to accept the plea offer. He was placed in a
situation in which he was not even told what his exposure was, if convicted.
The lack of timely guidance prior to facing trial planted the seeds of prejudice
for petitioner did not have the tools that only sound legal advice could have
provided to allow him an informed choice. The “maybe” does not translate into
a rejection of the plea offer.

His statement is simply that, had counsel

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effectively assisted him, he would have been able to decide which path to
follow: whether to risk a sentence unknown to him at the time or take a
concrete plea offer, both of which at a minimum required that counsel make
him privy to the structure and contents of the applicable sentencing guidelines.
Deprived of this basic knowledge, deprived also of the guidance needed to
compare his exposure in each of these scenarios, the Magistrate-Judge’s
conclusion that petitioner failed to show prejudice is unfounded because
petitioner’s ability to discern and choose between standing trial or pleading
guilty was impaired on account of his attorney’s undisputedly deficient legal
advice.
The Court finds that both prongs of the Strickland test have been met as
petitioner’s trial counsel was ineffective in failing to advise him on the details
of the plea offers received from the government, the applicability and
comparison of the sentencing guidelines in a guilty plea or after trial conviction
setting, and, in failing to explain to him the difference between pleading guilty
and going to trial as well as the consequences of each with respect to prison
time, all of which caused him prejudice. Accordingly, petitioner’s 28 U.S.C.
§ 2255 Motion (D.E. 1) is GRANTED, and his convictions and sentences in
Crim. No. 04-0079(CCC) are VACATED.

Judgment shall be entered

accordingly.
SO ORDERED.
At San Juan, Puerto Rico, on July 14, 2015.

S/CARMEN CONSUELO CEREZO
United States District Judge