Flores-Rivera v. USA
Filing
20
OPINION AND ORDER denying 1 Motion to Vacate. Judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 8/31/2018. (PMA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Sandra Flores-Rivera,
Petitioner
CIVIL NO. 16-2350 (PG)
Related Crim. No. 07-0318-8 (PG)
v.
United States of America,
Respondent.
OPINION AND ORDER
Before the court is petitioner Sandra Flores-Rivera’s (henceforth “Petitioner” or “Sandra
Flores”) motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket
No. 1) and the United States’ (or the “government”) opposition thereto (Docket No. 15). For the
following reasons, the court DENIES Petitioner’s motion to vacate.
I.
BACKGROUND
On February 5, 2008, Sandra Flores, alongside another forty-six codefendants, were
indicted by a grand jury in Criminal Case No. 07-318 (PG). Sandra Flores was charged in Count
One for conspiracy to possess with the intent to distribute narcotics within one thousand feet
of a public housing project or a public school, in violation of 21 U.S.C. §§ 841, 846, and 860.
See Crim. No. 07-318 (PG), Docket No. 478. Count Two charged a conspiracy to possess
firearms in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A) and
(0). Counts Three through Six charged Petitioner with aiding and abetting in the possession
with intent to distribute narcotics in violation of 21 U.S.C. §§ 841 and 860, and 18 U.S.C. § 2.
See id. at 6-28.
Civ. No. 16-2350 (PG)
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On October 13, 2009, the government filed an information pursuant to 21 U.S.C. § 851,
notifying the court that Petitioner had a previous felony drug conviction, subjecting her to a
statutory mandatory minimum of twenty years as to Count One. See Crim. No. 07-318 (PG),
Docket No. 1562. At trial, the government introduced three cooperating witnesses: Harry Smith
Delgado (“Delgado”), Xiomara Berrios-Rojas (“Xiomara”), and Andy Marcano (“Marcano”).
Delgado testified that he was a part of the conspiracy, and that Sandra Flores served as both a
runner and a seller of cocaine, crack, and marijuana. See United States v. Flores-Rivera, 787
F.3d 1, 10 (1st Cir. 2015). Xiomara and Marcano corroborated Delgado’s testimony regarding
Sandra Flores’ role in the drug trafficking organization. See id. Additionally, the government
presented video evidence showing that Sandra Flores was a member of the charged drug
trafficking conspiracy, thereby corroborating all three testimonies. See Crim. No. 07-318 (PG),
Dockets No. 1583, 1602. Central to the defendants’ trial strategy was an attempt to impeach
Delgado, Xiomara, and Marcano by suggesting that they had colluded to fabricate their
testimonies. See Flores-Rivera, 787 F.3d at 10. Nevertheless, the jury found Sandra Flores
guilty as to Counts One, Three, Four, Five and Six of the indictment. See Crim. No. 07-318 (PG),
Docket No. 1652.
At some unspecified time before trial, Delgado sent the lead prosecutor a handwritten letter,
which was not promptly disclosed to defendants. See Flores-Rivera, 787 F.3d at 11. Likewise,
two handwritten notes that Delgado kept, which contained details of his conversations with two
other co-conspirators were not timely disclosed. The belated production of these materials set
off a series of post-trial evidentiary hearings and motions presented by Sandra Flores and her
codefendants, Carlos Omar Bermudez-Torres (“Omar”) and Cruz Roberto Ramos-Gonzalez
(“Ramos”). Between 2010 and 2013, the district court wrote four separate opinions denying the
appellants’ various requests for a new trial, which were grounded on these belated productions.
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These four opinions provide a detailed account of each of the hearings conducted by, and
motions submitted to, the district court. See United States v. Ramos-Gonzalez, 747 F.Supp.2d
280, 284-89 (D.P.R. 2010); United States v. Ramos-Gonzalez, Crim. No. 07-318, 2011 WL
2144215, at *1-2 (D.P.R. May 31, 2011); Opinion and Order, Crim. No. 07-318, Docket No. 2972
at 1-3, July 30, 2012; Opinion and Order, Crim. No. 3166 at 1-6, August 9, 2013.
After denying her motion for new trial, the district court sentenced Sandra Flores to an
imprisonment term of two hundred forty months as to Count One, to be served concurrently
with one hundred eighty-eight months as to Counts Three, Four, Five, and Six. See Crim. No.
07-318, Docket No. 2626.
On March 29, 2011, Sandra Flores filed a timely notice of appeal. See Crim. No. 07-318,
Docket No. 2624. Unlike her codefendants, Omar and Ramos, Sandra Flores did not renew on
appeal her argument regarding the evidence that was produced belatedly. The First Circuit
Court of Appeals found that these materials warranted that Omar and Ramos be tried again.
As a result, the First Circuit remanded Omar and Ramos’ cases to the district court, and
affirmed the convictions and sentences of Sandra and Sonia Flores-Rivera. Flores-Rivera, 787
F.3d at 33. Petitioner did not file a petition for certiorari.
II.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct
his sentence “upon the ground that the sentence was imposed in violation of the Constitution
or laws of the United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.” 28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962);
Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).
Civ. No. 16-2350 (PG)
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III.
DISCUSSION
On June 14, 2016, Sandra Flores filed a motion to vacate under 28 U.S.C. § 2255 attacking
the legality of her sentence on five different grounds. See Docket No. 1. In Grounds One and
Three, Petitioner alleges that the prosecution violated her right to Due Process when it failed
to turn over Delgado’s letter and notes, and she contends that her appellate counsel was
ineffective for failing to renew this claim on appeal. In Ground Four, Sandra Flores argues that
her sentence was unconstitutionally enhanced because the court erred in determining that her
prior conviction for simple possession of marijuana under P.R. LAWS ANN. tit. 24, § 2404 is a
“felony drug offense” under 21 U.S.C. § 841(b)(1)(A). Therefore, Petitioner contends that the
prior conviction information presented by the government pursuant to 21 U.S.C. § 851 was
unwarranted, and she should not have been subjected to the mandatory minimum sentence
imposed under 21 U.S.C. § 841(b)(1)(A). Lastly, Petitioner argues in Grounds Two and Five that
she received ineffective assistance of counsel because trial counsel abandoned her during the
post-trial proceedings and her trial and appellate counsels failed to successfully challenge the
application of a two-point enhancement on Petitioner’s sentencing guidelines calculation under
U.S.S.G. § 2D1.1(b)(1). Each of these arguments will be addressed in turn.
A. Brady Claim
Firstly, Sandra Flores claims in Ground One that the government violated her right to Due
Process by failing to promptly turn over exculpatory or impeaching evidence in relation to
Delgado’s testimony. See Docket No. 1, at 10. Additionally, in Ground Three Petitioner alleges
that she received ineffective assistance of counsel when her appellate counsel failed to raise the
issue on appeal. See Docket No. 1 at 11.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the prosecution
violates due process when it suppresses evidence favorable to the accused and said evidence is
Civ. No. 16-2350 (PG)
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material to determining guilt or punishment. See Brady 373 U.S. at 87. A true Brady violation
has three components, namely: “[t]he evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been suppressed
by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-282 (1999).
Despite the foregoing, a § 2255 motion is not a substitute for a direct appeal, therefore “a
collateral challenge may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165
(1982). Furthermore, a significant bar on habeas corpus relief is placed on a defendant when
she fails to raise her claims at trial or on direct review. In such cases, “a court may hear those
claims for the first time on habeas corpus review only if the petitioner has ‘cause’ for having
procedurally defaulted [her] claims, and if the petitioner suffered ‘actual prejudice’ from the
errors of which [she] complains.” Owens v. United States, 483 F.3d 48, 56 (1st Cir. 2007).
It has long been understood that “[o]ne way to meet the cause requirement is to show
constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984).” Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015). Petitioner must show actual
prejudice by establishing that there is a “reasonable probability that the result of the trial would
have been different if the suppressed documents had been disclosed to the defense.” Jackson
v. Marshall, 634 F.Supp.2d 146, 160 (quoting Strickler, 527 U.S. at 289). Therefore, “[w]e do
not . . . automatically require a new trial whenever a combing of the prosecutors’ files after the
trial has disclosed evidence possibly useful to the defense but not likely to have changed the
verdict.” United States v. Dumas, 207 F.3d 11, 15 (1st Cir. 2000) (quoting Giglio v. United
States, 405 U.S. 150, 154 (1972)).
Civ. No. 16-2350 (PG)
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In order to establish ineffective assistance of counsel, Petitioner must prove that her
attorney’s performance was deficient and the deficient performance prejudiced her defense.
See Strickland, 466 U.S. at 687. Under Strickland, the burden of proving counsel’s deficiency
falls squarely on the shoulders of the defendant, who must overcome “the presumption that,
under the circumstances, that challenged action ‘might be considered sound trial strategy.’” Id.,
at 689. Furthermore, failure to satisfy either prong of the Strickland test is fatal. See id., at 697.
As a result, the court is free to choose which prong to analyze first.
In the present case, Sandra Flores’ discovery violation claim under Brady is procedurally
barred because her appellate counsel failed to present this claim on direct appeal. Petitioner
proves neither that she has cause excusing her procedural default, nor does she prove that she
suffers actual prejudice from the government’s error. Normally, “a showing that the factual or
legal basis for a claim was not reasonably available to counsel or that some interference by
officials made compliance impracticable would constitute cause.” Jackson, 634 F.Supp.2d at
159 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). But here, the government gave
Sandra Flores’ and her codefendants’ trial counsels the alleged impeachment evidence,
therefore the factual basis for the claim was available to Sandra Flores at the time of appeal. In
fact, Sandra Flores used said evidence as a means of supporting her motion for a new trial. See
Flores-Rivera, 787 F.3d at 15 n. 7. Despite being fully aware of his ability to do so, Petitioner’s
appellate counsel did not present this argument on direct appeal. See id.
Sandra Flores attempts to excuse her failure to present the Brady claim on appeal by
alleging that she received ineffective assistance of counsel. Petitioner bases her ineffective
assistance of counsel claim on the First Circuit’s statement that:
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Sandra’s trial counsel joined Ramos and Omar in petitioning the district court for
a new trial after the prosecutor turned over Delgado’s letter and notes in 2010.
Her appellate counsel has not renewed this claim on appeal. Counsel was clearly
aware of his ability to adopt a co-appellant’s arguments in a consolidated case
pursuant to Federal Rule Appellate Procedure 28(i), since he reserved his right
to do so in Sandra’s opening brief. But counsel never filed a reply brief after the
court granted him an extension, nor did he make a motion to adopt the other
appellant’s arguments
Flores-Rivera, 787 F.3d at 15 n. 7. As the following analysis will highlight, her claim fails the
second prong of the Brady and Strickland tests. In essence, Petitioner cannot show prejudice.
During her trial, the government presented significant corroborating evidence implicating her
in the drug trafficking conspiracy. As a result, she is not similarly situated to her two
codefendants, Ramos and Omar, whose requests for new trials were granted. In fact, the First
Circuit based its decision to grant Ramos and Omar a new trial on the fact that the government
failed to present additional evidence with probative value corroborating Delgado’s testimony,
which could have been challenged by the belatedly produced Brady materials. See id., at 11. But,
despite the First Circuit’s statements, here, Petitioner cannot show the prejudice prongs of the
Brady and Strickland tests.
Sandra Flores’ participation in the drug trafficking organization was not supported solely
on Delgado and the other cooperating witnesses’ testimonies, as the government presented the
jury a series of videotape recordings directly implicating her in the crime. See Crim. No. 07318, Dockets No. 1583, 1602. The Supreme Court has held that “evidence impeaching an
eyewitness may not be material if the State’s other evidence is strong enough to sustain
confidence in the verdict.” Smith v. Cain, 565 U.S. 73, 76 (2012). The videos presented to the
jury show that Sandra Flores operated a drug point and corroborates Delgado, Xiomara, and
Marcano’s testimonies that Petitioner was a seller and runner of illicit drugs. For example,
during the jury trial on October 19, 2009, Delgado was shown and questioned about a video
Civ. No. 16-2350 (PG)
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displaying Sandra Flores “tallying up” drugs and money with her brother, Alex Flores-Rivera,
before changing shifts as drug sellers:
Ms. Avila, AUSA :
What other way, if any, could the seller tally up to turn
over the shift to the other seller?
Delgado:
He could tally up with the other person that was going
to continue selling. They would count the drug, they
would count the money and they would tally up
among themselves and they would give each other –
the person that was leaving the shift would give the
drug over and then that person would take the drug,
he would take the money and they would tally up and
then they would running [sic] the shift.
Ms. Avila, AUSA:
I’m going to show you, sir, play again at 4:53:38, so
on, December 8, 2006. Can you please tell the jury
what you are observing?
Atty. Hill-Adames:
Objection again, Your Honor, lack of personal
knowledge. This witness was not present when this is
happening.
The court:
Denied.
Delgado:
Do I answer?
The court:
Yes.
Delgado:
Right now, Sandy [Flores-Rivera] is the [sic] tallying
up with her brother, with Alex, and as you can see the
time, it’s 4:54. It’s just about 5 o’clock, which is the
change of shift of the sellers.
Crim. No. 07-318, Docket No. 1583 at 99.
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Additionally, on October 23, 2009 the jury was shown another video that displayed Sandra
Flores participating in numerous drug transactions with the then testifying witness, Xiomara.
When questioned about one such instance, Xiomara’s testimony reads as follows:
Ms. Avila, AUSA:
And I pause it at 3:50:25 p.m. Who is the person that is to
the side of you?
Xiomara:
Sandra and I.
Ms. Avila, AUSA:
Which Sandra, La Caderua or Flores?
Xiomara:
Sandra Flores.
Ms. Avila, AUSA:
I’m pausing at 3:50:32. As I’m playing the video, I’m going
to put it on play, you can describe to the jury what you are
seeing, okay?
Xiomara:
Yes, Prosecutor. They are giving us money and I go to where
I have the stash to get the material.
Crim. No. 07-318, Docket No. 1602 at 29, 30.
Later on, Xiomara identifies Sandra Flores in another instance in which she was caught on
video selling drugs:
Ms. Avila, AUSA:
Let me phrase it this way, ma’am. Based on your personal
observations and your experience as a seller at this drug
point and working as a seller also with Sandra Flores
Rivera’ [sic] drug point, I’m taking you to 2-8-2006, at
4:31:42, so on, and playing it for you. Can you please tell
the jury what you are observing?
Xiomara:
Sandra is given the money. She counts it. Takes more
money.
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Atty. Hill-Adames:
Same objection, Your Honor.
The court:
Denied
Xiomara:
She gets up. She goes into the house.
Ms. Avila, AUSA:
And I pause at 4:35:05. Does she go into her house,
ma’am?
Xiomara:
No, she did not go in.
Ms. Avila, AUSA:
What does she do? What do you observe?
Xiomara:
She gives the money to someone.
Ms. Avila, AUSA:
Ma’am, have you see this done before as a seller there at
this drug point?
Xiomara:
Yes.
Ms. Avila, AUSA:
Is this common or uncommon?
Xiomara:
Yes.
Ms. Avila, AUSA:
Yes, what, common or uncommon?
Xiomara:
Yes, common.
Ms. Avila, AUSA:
And I’m playing it again.
The court:
That’s Marjorie, isn’t it?
Xiomara:
Yesca. See, she went there, she got the material, and she
gave it to him, to the addict.
Ms. Avila, AUSA:
Do you know who the addict is, ma’am?
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Xiomara:
I do not know him by name, but he is from Maunabo.
Ms. Avila, AUSA:
And how do you know he is from Maunabo? Have you
seen him before?
Xiomara:
Yes.
Ms. Avila, AUSA:
And when you say “she” gave the material to the addict,
the one that you described as the one from Maunabo, who
do you refer to, Yesca or Sandy?
Xiomara:
To Sandra Flores.
[…]
Ms. Avila, AUSA:
Ma’am, and what type of drugs did Sandra Flores Rivera
sell at the drug point?
Xiomara:
Everything.
Id., at 37-38, 39.
As was previously indicated, a true Brady violation requires that Petitioner prove that the
suppression of the evidence in question caused her prejudice. See Greene, 527 U.S. 281-282. In
the present case, the belatedly produced evidence did not prejudice Petitioner because there
was sufficient corroborating evidence implicating her in the criminal venture. See Crim. No.
07-318, Docket No. 1602 at 29, 37-41, 53. Unlike her codefendants, Ramos and Omar,
Delgado’s testimony was not the sole means for determining Petitioner’s guilt. In her case, the
videos shown to the jury illustrating that Petitioner worked as a drug runner and seller
contravenes the argument that there is a reasonable probability that the results of the trial could
have been different had the Brady documents been turned over in a timely manner. Thus,
because Sandra Flores cannot prove that the belatedly produced evidence prejudiced her, she
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fails the prejudice prongs of the Brady and Strickland tests. Accordingly, her motion to vacate
is DENIED on those grounds.
B. Sentencing Enhancement Challenge
In Ground Four, Sandra Flores argues that her sentence violates the Eighth Amendment
and her right to Due Process because the information filed pursuant to 21 U.S.C. § 851 was done
for an improper purpose and resulted in a sentence that is excessive and disproportionate. 1 See
Docket No. 1 at 13. Specifically, Petitioner contends that her prior conviction for simple
possession of marijuana under P.R. LAWS ANN. tit. 24, § 2404 does not qualify as a “felony drug
offense” pursuant to § 851. Petitioner asks the court to waive her procedural default of these
claims because both her trial and appellate counsels were ineffective by failing to argue that her
prior conviction was not a qualifying felony. Her arguments hold no water.
First, the record contradicts Petitioner’s assertion that her trial counsel failed to challenge
the § 851 enhancement. On February 20, 2011, Petitioner’s trial counsel filed the appropriate
objection to the § 851 enhanced penalty, which was subsequently denied by the court on March
21, 2011. See Crim. No. 07-318, Dockets No. 2597, 2617. Moreover, Petitioner’s trial counsel
once again objected to the imposition of the enhanced penalty during her sentencing hearing.
See Crim. No. 07-318, Docket No. 2683, at 7. As such, Sandra Flores’ claim that her trial counsel
abandoned her in regards to this issue is inaccurate and belied by the record of this case.
Second, Petitioner’s appellate counsel was under no obligation to present the
aforementioned objection, as the objection itself lacked merit. Sandra Flores relies on the First
Circuit’s decision in United States v. Davila-Felix, 667 F.3d 47 (1st Cir. 2017), which held that
1
The proceedings for establishing that a defendant has a prior conviction for sentencing calculation purposes are
outlined in 21 U.S.C. § 851.
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a conviction for possession of cocaine and marijuana with intent to distribute under P.R. LAWS
ANN. tit. 24, § 2401 “cannot categorically qualify as a ‘controlled substance offense’ within the
meaning of § 4B1.2(b) because it criminalizes conduct that falls outside the guidelines
definition.” Id., at 56.
Petitioner’s argument fails because the issue in Davila-Felix centered on whether or not the
defendant’s previous possession conviction qualified as a “controlled substance offense” under
U.S.S.G. § 4B1.2(b). 2 In the present case, the government filed the information pursuant to §
851 in order to prove that Petitioner qualified for the mandatory minimum sentence imposed
in 21 U.S.C. § 841(b)(1)(A). Said section states that when a defendant violates § 841(b)(1)(A)
“after a prior conviction for a felony drug offense has become final, such person shall be
sentenced to a term of imprisonment which may not be less than 20 years and not more than
life imprisonment . . .” 21 U.S.C. § 841(b)(1)(A) (emphasis added). “Controlled substance
offense” is no synonym for “felony drug offense.”
The term “felony drug offense” is defined in 21 U.S.C. § 802(44) as “an offense that is
punishable by imprisonment for more than one year under any law of the United States or of a
State or foreign country that prohibits or restricts conduct relating to narcotic drugs,
marihuana, anabolic steroids or depressant or stimulant substances.” 21 U.S.C. § 802(44)
(emphasis added). See United States v. Robertson, 459 F.3d 39, 51 (1st Cir. 2006) (holding that
“the definition of ‘felony drug offense’ contained in § 802(44) unambiguously controls for the
purposes of determining whether the penalty enhancement in § 841(b)(1)(A) is triggered”);
2
Section 4B1.2(b) defines a “controlled substance offense” as any offense under federal or state law that is
“punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or disperse.”
U.S.S.G. § 4B1.2(b).
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Burgess v. United States, 553 U.S. 124, 135 (2008) (holding that, via the definition in § 802(44),
“Congress expressly defined the term ‘felony drug offense.’ The definition is coherent,
complete, and by all signs exclusive.”). Moreover, the statute under which Sandra Flores’
previous conviction rests reads as follows:
It shall be unlawful for any person, knowingly or intentionally, to possess any
controlled substance, unless such substance was obtained directly, or pursuant to
a valid prescription or order from a practitioner, while acting in the course of his
professional practice, or except as authorized by this chapter.
Any person who violates this subsection shall be guilty of a felony, and, upon
conviction thereof, shall be punished by imprisonment for a fixed term of three
(3) years. Should there be aggravating circumstances, the fixed penalty
established may be increased to a maximum of five (5) years; if there should be
extenuating circumstances, it may be reduced to a minimum of two (2) years.
P.R. LAWS ANN. tit. 24, § 2404(a) (emphasis added). The conduct prohibited by § 2404 squarely
fits the definition of a “felony drug offense” under §§ 841(b)(1)(A) and 802(44). First, said
statute prohibits conduct relating to narcotic drugs, including marihuana. Second, the least
culpable version of the offense is punishable by a period of imprisonment of more than one
year.
As a result, Sandra Flores’ prior conviction for simple possession of marihuana under §
2404 constitutes a “felony drug offense” for the purpose of applying the increased minimum
sentence imposed in § 841(b)(1)(A). Any argument that her appellate counsel could have
presented stating otherwise would have been meritless. See Acha v. United States, 910 F.2d 28,
32 (1st Cir. 1990) (holding that trial counsel is “under no obligation to raise meritless claims.
Failure to do so does not constitute ineffective assistance of counsel”). Ultimately, Petitioner’s
argument that her sentence violates the Eighth Amendment and Due Process, and that her
appellate counsel was ineffective for not challenging it, necessarily fails because the § 851
information was filed correctly by the government, and the § 841(b)(1)(A) sentencing
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enhancement was properly applied. Due to Petitioner’s failure to excuse the procedural default
of her claim, and due to her argument’s lack of merit, her petition is DENIED on those
grounds.
C. Additional Ineffective Assistance of Counsel Claims
Lastly, Petitioner’s remaining two grounds consist of additional allegations that she
received ineffective assistance of counsel. Sandra Flores first claims in Ground Two that her
trial counsel abandoned her during the post-trial proceedings. See Docket No. 1 at 10.
Specifically, Petitioner contends that although her trial counsel filed a motion to join the posttrial proceedings, she failed to participate in them. See id. But, the record shows otherwise.
Contrary to Petitioner’s assertions, the record demonstrates that Petitioner’s counsel was
present and actively participated in the evidentiary hearing for the motion for new trial. See
Crim. No. 07-318, Docket No. 2354; id., Docket No. 2364 at 114-118. As a result, the ineffective
assistance of counsel claim on this ground is thus DENIED.
In her fifth and final ground, Sandra Flores contends that her trial and appellate attorneys
provided ineffective assistance because they failed to effectively challenge a two point
enhancement imposed on her guideline calculation under U.S.S.G. § 2D1.1(b)(1). See Docket
No. 1 at 5. Although Petitioner recognizes that her trial counsel indeed challenged the
enhancement, she insists that said challenge failed solely because her counsel did not
adequately research the issue. In support of her argument, Petitioner alleges that her similarly
situated codefendants did not receive the enhancement. See Docket No. 1 at 14.
The ineffective assistance of counsel claim fails on this ground because the district court
correctly applied the enhancement. The statute in question, U.S.S.G. § 2D1.1(b)(1), provides
that a defendant’s base offense level is increased by two levels “if a dangerous weapon
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(including a firearm) was possessed” in the furtherance of a federal crime. Petitioner’s
codefendant, Sonia Flores-Rivera, challenged this very enhancement on appeal. The First
Circuit held that the “firearm enhancement applies ‘whenever a codefendant’s possession of a
firearm in furtherance of their joint criminal venture [is] reasonably foreseeable’ by the
defendant.” Flores-Rivera, 787 F.3d at 32 (quoting United States v. Bianco, 922 F.2d 910, 912
(1st Cir. 1991)). The First Circuit further established that “’because firearms are considered
common tools of the drug trade,’ where firearms are used in furtherance of drug offenses, the
two-level ‘enhancement should be applied if [a] weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.’” Flores-Rivera, 787 F.3d at 33
(quoting United States v. Thongsophaporn, 503 F.3d 51, 58 (1st Cir. 2007)).
The Court held then that the § 2D1.1(b)(1) enhancement was warranted because it was not
“clearly improbable” from Sonia Flores-Rivera’s perspective that firearms would be used
during and in furtherance of the drug trafficking conspiracy. See Flores-Rivera, 787 F.3d at 33.
Following the same logic, it was reasonably foreseeable for Sandra Flores that weapons would
be used in furtherance of the drug trafficking conspiracy. The trial testimony showed that
Sandra Flores, like Sonia Flores-Rivera, was a runner of cocaine, crack, and marijuana, and
that she would stash those kinds of drugs for the drug trafficking organization. Additionally,
Petitioner had contact with several other co-conspirators, including Delgado, who had a
propensity for carrying and using firearms. 3
Because Sandra Flores was similarly situated to her sister, Sonia Flores-Rivera, the §
2D1.1(b)(1) enhancement was warranted and her trial counsel was not ineffective for not
prospering. Any additional research performed by her counsel would have only supported the
“Delgado had a reputation for donning a bulletproof vest and frequently firing guns while at the housing project.
He testified that he was armed ‘all the time.’” Flores-Rivera, 787 F.3d at n. 29 (2015).
3
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court’s determination. Therefore, Petitioner’s ineffective assistance of counsel claim on this
ground fails the second prong of the Strickland test, as she fails to prove that her counsel’s
actions caused her prejudice. Furthermore, Petitioner’s counsel had no reason to further
develop or insist on an argument that was meritless. See Acha, 910 F.2d at 32. As a result, the
present argument is unfounded, and her motion to vacate is hereby DENIED on those
grounds.
IV.
CONCLUSION
Based on the foregoing, the court DENIES Petitioner’s request for habeas relief under 28
U.S.C. § 2255 (Docket No. 1). As such, the case is DISMISSED WITH PREJUDICE.
Judgment shall be entered accordingly.
V.
CERTIFICATE OF APPEALABILITY
It is further ordered that no certificate of appealability should be issued in the event that
the Petitioner files a notice of appeal because there is no substantial showing of the denial of a
constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, August 31, 2018.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
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