Zabala-Marti v. USA

Filing 20

OPINION AND ORDER re 1 Motion to Vacate; re 7 Supplemental Motion; and re 9 Motion Submitting Additional Evidence. Petitioner Jose Manuel Zavala-Marti's motion pursuant to 28 U.S.C. § 2255 (Docket No. 1) and its supporting Memorandum of Law (Docket No. 1-1), as well as all subsequent filings are DENIED. This case is DISMISSED with prejudice. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 03/25/2020. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JOSÉ MANUEL ZAVALA-MARTÍ,
Petitioner,

Civil No. 16-2762 (FAB)

v.

related to

UNITED STATES OF AMERICA,

Criminal No. 07-318 (FAB)

Respondent.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court is José Manuel Zavala-Martí’s (“Petitioner”
or “Zavala-Martí”) motion to vacate, set aside, or correct his
sentence in Criminal Case No. 07-318 pursuant to Title 28, United
States

Code,

§

2255

(“section

2255”),

(Civil

Docket

No.

1);

Memorandum of Law, (Civil Docket No. 1-1); Petitioner’s Motion
Supplementing

2255

Petition

Facts,

(Civil

Docket

No.

7);

Petitioner’s Motion Providing Additional Evidence (Civil Docket
No.

9);

the

Government’s

Response

(Civil

Petitioner’s Reply (Civil Docket No. 19.)
forth
motion

below,
to

the

vacate

Court
his

dismisses

sentence

with

(Civil

Docket

No.

16)

and

For the reasons set

prejudice
Docket

No.

petitioner’s
1)

and

its

supporting memorandum of law (Civil Docket No. 1-1) as well as all
subsequent motions.

Civil No. 16-2762 (FAB)
I.

2

BACKGROUND
On February 5, 2008, Zavala-Martí was charged, along with 46

additional

defendants,

in

a

ten-count

Superseding

Indictment

involving drugs, firearms, bribery, and witness tampering offenses
in Criminal Case No. 07-318, (Criminal Docket No. 478.)
On October 13, 2009, the criminal case was called for jury
trial as to Zavala-Martí and five (5) additional defendants,
(Criminal Docket No. 1560.)

After the jury was empaneled and once

the first full day of trial was completed, petitioner informed the
Court that he wished to plead guilty by way of a straight plea,
meaning
guilty 1.

there

was

no

agreement

with

the

government

to

plead

On that same day, Zavala-Martí pled guilty of violating

Title 21, United States Code, §§ 846 and 860 (count one of the
Superseding

Indictment),

Title

18,

United

States

Code,

§

924(c)(11) and (o) (count two of the Superseding Indictment);
Title 21, United States Code, §§ 841 and 860 and Title 18, United
States Code, § 2, (counts three, four, five and six of the
Superseding

Indictment);

Title 18,

United

States

Code,

§§

1512(b)(1), (k) and 2, (counts seven and eight of the Superseding
Indictment);

Title

21,

United

States

Code,

§

201(b)(3)

and

Title 18, United States Code, § 2, (count nine of the Superseding

1

Even after the trial began, the United States offered Zavala-Martí the
opportunity to plead guilty to 17 years of incarceration.
The offer was
communicated to Zavala-Martí and he rejected it, (Civil Docket No. 7-1 at p. 1.)

Civil No. 16-2762 (FAB)

3

Indictment); and the forfeiture allegation, (Criminal Docket Nos.
478 and 1582.)
Zavala-Martí’s

sentence

(Criminal Docket No. 2575.)

was

held

on

January

28,

2011

Petitioner was sentenced to a term of

life imprisonment, (Criminal Docket No. 2579.)

Zavala-Martí filed

a timely Notice of Appeal (Criminal Docket No. 2596.)
The First Circuit Court of Appeals, in United States v.
Zavala-Martí, 715 F.3d 44 (1st Cir. 2013), vacated petitioner’s
life sentence and remanded the case for resentencing before a
different judge.

The First Circuit Court of Appeals concluded

that the life term imprisonment was unsupported by any count of
the Superseding Indictment, 715 F.3d at 51-52, 54.
On October 16, 2013, Zavala-Martí’s resentencing hearing was
held before a different judge, as the Court of Appeals had ordered
(Criminal

Docket

No.

3192.)

After

a

lengthy

allocution

and

argument by defense counsel the Court made the following sentencing
determinations:
Counts One through Six were grouped together pursuant to
U.S.S.G. § 3D1.2(d);
Counts Seven, Eight, and Nine were grouped with Counts
One through Six pursuant to U.S.S.G. 3D1.1(c);
A base offense level of 34 was determined pursuant to
U.S.S.G. § 2D1.1(c)(3) due to the determination of drug
quantity amount of 22 kilograms of cocaine;

Civil No. 16-2762 (FAB)
A two-level
location;

4

enhancement

was

imposed

for

protected

An additional two-level enhancement was imposed for
possession of a firearm pursuant to U.S.S.G. § 2D1.1(b);
An additional four level enhancement was imposed for
petitioner’s leadership role pursuant to U.S.S.G.
§ 3B1.1(a);
An additional two-level enhancement was imposed for
obstruction of justice pursuant to U.S.S.G. § 3C1.1;
A two-level
downward
reduction
was
imposed
for
acceptance of responsibility pursuant to U.S.S.G. §
3E1.1, (Criminal Docket No. 3202 at pgs. 69-71.)
The

Court

determined

that

because

petitioner’s

Criminal

History Category was I and his total offense level was 42, his
sentencing guideline range was 30 years to life imprisonment,
Id. 71.
Following that determination the court imposed the following
sentence:

a term of imprisonment of 35 years as to Count One, a

term of imprisonment of 20 years as to Count Two; a term of
imprisonment of 35 years as to Count Three; a term of imprisonment
of 35 years as to Count Four; a term of imprisonment of 35 years
as to Count Five and a term of imprisonment of 10 years as to Count
Six all to be severed concurrently with each other.

In addition,

petitioner was sentenced to a term of imprisonment of 10 years as
to Count Seven; a term of imprisonment of 10 years as to Count
Eight and a term of imprisonment of 15 years as to Count Nine,

Civil No. 16-2762 (FAB)
these

three

to

be

5

served

concurrently

with

each

other

but

consecutively to the terms of imprisonment imposed in Counts One
through Six.

The total term of imprisonment for Zavala-Martí was

a term of imprisonment of 50 years, (Criminal Docket No. 3192.)
Once again, Zavala-Martí appealed his sentence, (Criminal
Docket No. 3197.)

The First Circuit Court of Appeals affirmed

petitioner’s sentence, United States v. Zavala-Martí, 601 Fed.
Appx. 6 (1st Cir. 2015).

Zavala-Martí then filed a petition for

certiorari which was denied by the Supreme Court, Zavala-Martí v.
United States, 136 S.Ct. 148 (2015).
Zavala-Martí,
Petition

through

for

Petitioner,

retained

habeas

through

corpus
counsel,

Finally, on October 4, 2016,

counsel,
relief
has

filed

(Civil

made

a

timely

Docket

subsequent

No.

2255
1.)

additional

filings in an attempt to substantiate his claim, all of which have
been reviewed and analyzed by the Court.
II.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255, “[a] prisoner in custody under

sentence of a court established by [an] Act of Congress . . . may
move the court which imposed the sentence to vacate, set aside or
correct the sentence.”

28 U.S.C. § 2255(a).

“[T]he statute

provides for post-conviction relief in four instances, namely, if
the petitioner’s sentence (1) was imposed in violation of the
Constitution,

or

(2)

was

imposed

by

a

court

that

lacked

Civil No. 16-2762 (FAB)

6

jurisdiction, or (3) exceeded the statutory maximum, or (4) was
otherwise subject to collateral attack.”

David v. United States,

134 F.3d 470, 474 (1st Cir. 1998) (citing Hill v. United States,
368

U.S.

424,

426-27

(1962)).

Claims

that

do

not

allege

constitutional or jurisdictional errors are properly brought under
section 2255 only if the claimed error is a “fundamental defect
which fundamentally results in a complete miscarriage of justice”
or “an omission inconsistent with the rudimentary demands of fair
procedure.”

Id.

A motion filed pursuant to section 2255 is not a substitute
for a direct appeal. Foster v. Chatman, 136 S. Ct. 1737, 1758
(2016).

“[A]s a general rule, federal prisoners may not use a

motion under 28 U.S.C. § 2255 to relitigate a claim that was
previously rejected on direct appeal.”

Id. (citations omitted.)

Moreover, “[c]ollateral relief in a § 2255 proceeding is generally
unavailable if the petitioner has procedurally defaulted his claim
by failing to raise the claim in a timely manner at trial or on
direct appeal.”

Bucci v. United States, 662 F.3d 18, 27 (1st Cir.

2011) (quotation marks and citations omitted.)

If a § 2255

petitioner does not raise a claim on direct appeal, that claim is
barred from judicial review unless the petitioner can demonstrate
both (1) cause for the procedural default, and (2) actual prejudice

Civil No. 16-2762 (FAB)

7

resulting from the error asserted.

Id.; United States v. Frady,

456 U.S. 152, 167-68 (1982).
III. DISCUSSION
Zavala-Martí requests that he be allowed to withdraw his
guilty plea due to the following:
The
the
due
the

straight plea to which Zavala-Martí entered after
commencement of trial was not knowing and voluntary
to Brady violations and destruction of evidence by
government;

Zavala-Martí’s
appellate
counsel’s
assistance
was
ineffective on direct appeal because he failed to raise
that the district court had engaged in impermissible
double counting when it imposed a sentence for counts 79 consecutively to the sentence imposed for counts 1-6,
because the grouped count computation of all counts made
by the probation officer had already included a twolevel upward adjustment for obstruction of justice.
Appellate counsel failed to raise that the district
court committed procedural sentencing error when it
failed to compute the applicable guideline sentence for
counts 7-9 prior to imposing the maximum statutory
sentence in those counts of 10 and 15 years consecutively
to the 35 years imposed in counts 1-6 without justifying
the variance or departure.
A.

Petitioner Zavala-Martí’s first claim: The straight plea to
which Zavala-Martí entered after the commencement of trial
was not knowingly and voluntarily made due to Brady violations
and destruction of evidence by the government.

Zavala-Martí
committed

prosecutorial

argues

that

misconduct

because

when

it

the

failed

government
to

provide

impeachment evidence regarding three cooperating witnesses, his

Civil No. 16-2762 (FAB)

8

straight plea was not knowingly and voluntarily made. 2

Zavala-

Martí at no time makes a claim of actual innocence; quite the
contrary, his argument is that if he had known of the impeachment
evidence that could have been used against certain government
cooperating witnesses, he would have taken his chances at trial.
Zavala-Martí

further

argues

that

he

was

not

aware

of

the

impeachment information or its usefulness until he read the First
Circuit Court of Appeals’ opinion in United States v. FloresRivera, et al., 787 F.3d 1 (1st Cir. 2015), (Civil Docket No. 1 at
p. 8.)

Petitioner contends that because he pled guilty at the

beginning of the trial, he was unaware of the restricted motions
filed concerning alleged Brady violations, all of which were denied
by the Court, as well as the post-trial evidentiary hearing on the
matter, Id.

Because of this delay in knowledge, Zavala-Martí

asserts that his only viable recourse is filing his 2255 petition
for relief.
Zavala-Martí’s claim cannot prevail for several reasons.
First, the alleged impeachment evidence in question was available
to petitioner’s trial counsel as part of discovery.

After Zavala-

Martí had pled guilty, his then trial counsel, Attorney María

2 Zavala-Martí entered into his straight plea after the jury was empaneled after
a two-day jury selection process, and after the first day of trial had completed.
After petitioner pled guilty, the trial continued with the remaining defendants.
(Criminal Docket No. 1647.)

Civil No. 16-2762 (FAB)
Sandoval,

received

9

e-mail

communications

in

March

2010

and

June 16, 2010, from the government indicating the availability of
the Giglio material at the United States Attorney’s Office (Civil
Docket No. 7-1 at p. 5.)
of

the

material

in

Once Ms. Sandoval came into possession

2010,

she

visited

petitioner

on

several

occasions at the prison to discuss the information with him, (Id.
at p. 5-6.)
the

Ms. Sandoval informed petitioner that the contents of

documents

confirmed

what

the

trial

attorneys

and

some

defendants suspected before trial, that cooperating witness Harry
Smith Delgado-Cañuelas (“Delgado”) was communicating with other
cooperating witness, Xiomara Berríos and Andy Marcano, (Id., at
p. 6.)
Ms. Sandoval informed Zavala-Martí that the documents
would have been valuable at trial because cross-examination of
three of the cooperating witnesses would have been more vigorous,
precise and destructive to their credibility, (Id.)
also

indicates

that,

at

that

time,

June

2010,

Ms. Sandoval
both

she

and

petitioner had knowledge of motions being presented by counsel of
other defendants (particularly by attorneys Castro-Lang and Luis
Rivera) 3 regarding the alleged late delivery of the impeachment

3

Mr. Castro-Lang himself is Zavala-Martí’s retained counsel in these
proceedings, and he was the former trial and appellate counsel for defendant
Carlos Omar Bermúdez-Torres whose conviction was overturned by the First Circuit
Court of Appeals in 2015, (Criminal Case No. 07-318.)

Civil No. 16-2762 (FAB)
material.

10

Although Ms. Sandoval ascertains that the pleadings on

this matter were filed “selected parties” and she therefore did
not have access to them, the record reveals that numerous post
trial motions including motions for new trial based on alleged
Brady violations, minutes of proceedings, transcripts of hearings
and

court

orders

were

available

for

viewing

by

Ms.

Sandoval

(Criminal Docket Nos. 2125, 2235, 2354, 2488, 2972, 3058, 3059,
3060, 3070, 3074, 3075, 3076, 3087, 3113, 3127, and 3137.)
By Ms. Sandoval’s own admission, she viewed, and so
explained to Zavala-Martí, the impeachment information because
“[i]t might, at minimum . . ., be sufficient to raise reasonable
doubt

but

again,

she

stressed

there

was

no

Mr. Zavala would be acquitted of all charges.”

guarantee

that

(Id. at p. 8.)

After much discussion with his counsel, Zavala-Martí decided not
to withdraw his plea, and elected not to join the motions presented
by the defendants, (Id.)
There is no doubt that petitioner, contrary to his
allegations, had full knowledge, (and his counsel had received the
disclosure) of the impeachment material, and made a thoughtful,
conscious decision not to pursue the matter any further back in
June 2010.

The record reflects that it was not until 2015, when

Civil No. 16-2762 (FAB)

11

the First Circuit Court of Appeals issued its opinion and order 4
granting a new trial to some of Zavala-Martí’s co-defendants
(particularly Carlos Omar Bermúdez-Torres) that petitioner alleges
that he made the wrong choice, and retains Bermúdez-Torres’ trial
and appellate attorney, Mr. Castro-Lang, to file his 2255 petition
for relief.

Zavala-Martí is not entitled to relief just because

he regrets his choice.
Zavala-Martí’s argument is that the government violated
his constitutional rights by not disclosing, prior to his change
of plea hearing, the impeachment evidence as to three cooperating
witnesses, (Civil Docket No. 1-1 at p. 5-11), which makes his
guilty plea involuntary and unknowing.

Zavala-Martí alleges that

there was a reasonable probability that he would not have pled
guilty if he had been provided the impeachment evidence, (Id. at
p. 11-15.) He should, therefore, be allowed to withdraw his guilty
plea at this time.

(Id. at 19.)

Zavala-Martí is mistaken.

As

previously discussed, Zavala-Martí and his trial counsel discussed
the impeachment evidence and what his options were ad nauseum and
petitioner’s final voluntary and knowing decision was not to
withdraw his plea.

4

United States of America v. Sonia N. Flores-Rivera, et al., 787 F.3d 1 (1st
Cir. 2015).

Civil No. 16-2762 (FAB)
Second,
receive

12

petitioner

impeachment

has

evidence

no

constitutional

prior

to

right

pleading

to

guilty.

“Impeachment information is special in relation to the fairness of
a trial, not in respect to whether a plea is voluntary (‘knowing,
intelligent,

and

sufficiently

aware’).

Of

course,

the

more

information the defendant has, the more aware he is of the likely
consequences of a plea, waiver, or decision, and the wiser that
decision will likely be.

But the Constitution does not require

the prosecutor to share all useful information with the defendant.”
United

States

v.

Ruiz,

536

U.S.

622

at

629

(2002)

Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

citing,

Petitioner’s

only allegation as to his plea not being knowing and voluntary is
that he did not have prior knowledge of the impeachment evidence
to which the Supreme Court has held he was not constitutionally
entitled in the first place.

His argument falls flat.

Simply put

“the Brady rule is inapplicable in cases where a defendant pleads
guilty.”

United States v. Bravo, 350 F. Supp.3d 16, 24 (D. Mass.

2018) citing; United States v. Mathur, 624 F.3d 498, 507 (1st Cir.
2010).
There being no constitutional violation or a claim of
actual innocence by petitioner Zavala-Martí’s first claim for
relief is DENIED.

Civil No. 16-2762 (FAB)
B.

13

Petitioner Zavala-Martí’s second claim:
Appellate counsel
provided ineffective assistance on direct appeal for failing
to raise that the district court had engaged in impermissible
double counting when it imposed a consecutive sentence in
counts 7-9 to counts 1-6 when the grouped count computation
of all counts made by the probation officer had already
included a two level upward adjustment for obstruction of
justice. Appellate counsel failed to raise that the district
court committed procedural sentencing error when it failed to
compute the applicable guideline to counts 7-9 prior to
imposing the maximum statutory sentence in those counts of 10
and 15 years consecutive to the 35 years imposed for counts
1-6 without justifying the variance or departure.

To

establish

ineffective

assistance

of

counsel,

a

defendant must show that:
1.

His or her attorney’s performance was deficient,

2.

The deficient performance prejudiced his defense.

and

Strickland v. Washington, 466 U.S. 668, 687 (1984).
In

order

to

establish

deficiency,

a

defendant

must

establish that counsel’s performance “fell below an objective
standard of reasonableness under prevailing professional norms.”
Strickland 466 U.S. at 688.

Pursuant to Strickland, counsel is

presumed to have acted within the range of “reasonable professional
assistance,”

and

it

is

defendant

who

bears

the

burden

of

“overcoming the presumption that, under the circumstances, that
challenged action ‘might be considered sound trial strategy.”’
Strickland, 466 U.S. at 689.

To show prejudice, a defendant must

establish that “there is a reasonable probability that, but for

Civil No. 16-2762 (FAB)

14

counsel’s unprofessional errors, the result of the proceeding
would

have

been

different.

A

reasonable

probability

is

a

probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.

This assessment, however, “must be

a ‘fairly tolerant’ one because ‘the Constitution pledges to an
accused an effective defense, not necessarily a perfect defense or
successful defense.’”

Moreno-Espada v. United States, 666 F.3d

60, 64 (1st Cir. 2012) quoting Scarpa v. Dubois, 38 F.3d 1, 8 (1st
Cir. 1994).
A claim of ineffective assistance of counsel “requires
a court to first assess whether ‘counsel’s representation ‘fell
below an objective standard of reasonableness.’”
Kentucky, 130 S.Ct. 1473, 1482 (2010).
that

petitioner

was

obligated

to

show

Padilla v.

It is pellucidly clear
both

that

counsel’s

performance fell below an objective standard of reasonableness,
and that prejudice resulted from it, Strickland, 466 U.S. at 687.
See also, López-Nieves v. United States, 917 F.2d 645, 648 (1st
Cir. 1990).

He must do this as to each particular instance in

which he claims that his counsel’s assistance was ineffective.
Counsel’s performance must be examined “not in hindsight, but based
on what the lawyer knew, or should have known, at the time his
tactical choices were made and implemented.”
Natanel, 938 F.2d 302, 309 (1st Cir. 1992).

United States v.
The “range of

Civil No. 16-2762 (FAB)
reasonable

15

professional

assistance”

Strickland, 466 U.S. at 689.
“judicial

scrutiny

deferential.”

of

is

quite

wide.

See,

As the Supreme Court has stated,

counsel’s

performance

must

be

highly

See Strickland, 466 U.S. at 689.

Pursuant to Strickland, petitioner must identify acts or
omissions by counsel which need to be outside the wide range of
professional
caused.

competent

assistance

and

the

harm

such

actions

Furthermore, “a defendant’s failure to satisfy one prong

of the Strickland analysis obviates the need for a court to
consider the remaining prong.”

Moreno-Espada v. United States,

666 F.3d 60, 64 (1st Cir. 2012) (quoting Tevlin v. Spencer, 621
F.3d 59, 66 (1st Cir. 2010).
Defendants
counsel on appeal.

have

a

right

to

effective

assistance

of

Claims of ineffective assistance of appellate

counsel are also measured under the Strickland standard, Evitts v.
Lucey, 469 U.S. 287 (1985).

Appellate counsel is not required to

raise every non-frivolous claim, but rather selects among them to
maximize the likelihood of success on the merits, Lattimore v.
Dubois, 311 F.3d 46 (1st Cir. 2002).
Where appellate counsel is charged with ineffectiveness
for failure to raise a particular claim, “it is difficult to
demonstrate that counsel was incompetent.”
U.S. 259 at p. 288 (2000).

Smith v. Robbins, 528

To overcome the presumption of

Civil No. 16-2762 (FAB)

16

competence of appellate counsel, a petitioner must show that the
omitted issues were “clearly stronger” than those counsel chose to
assert.

Zavala-Martí has not made such a showing.
Zavala-Martí

argues

that

appellate

counsel

was

ineffective in failing to raise several double counting arguments
as

to

his

sentence,

(Civil

Docket

No.

1-1

at

pp.

18-34.)

Petitioner alleges that appellate counsel failed to contest the
court’s grouping and the imposition of a two-level enhancement for
obstruction of justice because it caused double counting, (Civil
Docket No. 1-1 at pp. 20-21.)

This argument was first raised prior

to petitioner’s re-sentencing as objections to the Pre-Sentence
Investigation Report (PSR).

Both Zavala-Martí and the government

expressed their positions on the matter, (Criminal Docket No. 3189
at pp. 5-6.)

Zavala-Martí takes the argument in his 2255 motion

a step further, and alleges that the Court and the PSR failed to
calculate the guideline ranges for both groups and then determine
which had the highest offense level as required by U.S.S.G. § 3D1.1
and 3D1.3 (Civil Docket No. 1-1 at pp. 28-29.)
Zavala-Martí’s

argument

is

contradicted

record of the sentencing hearing reflects.

by

what

the

The Court properly

applied the group with the highest offense level which involved
the drug/firearms offenses; Zavala-Martí therefore cannot show any

Civil No. 16-2762 (FAB)

17

error by the Court, and much less claim ineffective assistance of
appellate counsel for a non-existent error. 5
Zavala-Martí

raises

Court’s sentencing calculation.

two

final

arguments

as

to

the

First, petitioner argues that the

Court incurred in double counting when it imposed a consecutive
sentence for the obstruction of justice counts when a prior twolevel obstruction adjustment had already been applied, (Civil
Docket No. 1-1 at 27.)

Petitioner is mistaken.

The Sentencing

Guidelines clearly allow for cumulative application of adjustments
from different guidelines sections, U.S.S.G. § 1B1.1, comment
(n.4(B)); United States v. Arsenault, 833 F3d. 24, 31 (1st Cir.
2006).

“The guidelines do not control whether sentences run

concurrently or consecutively.”
552, 554 (8th Cir. 2010).

United States v. Jarvis, 606 F.3d

Title 18 United States Code, § 3584

recognizes that when multiple terms of imprisonment are imposed,
the district has the discretion to run those terms of imprisonment
concurrently or consecutively. 6 Therefore, because the obstruction

5 On appeal Zavala-Martí challenged his 50-year sentence on three grounds:
(1) the district court violated 18 U.S.C. § 3553(c)(1) by failing sufficiently
to explain in open court its reasons for selecting the sentence; (2) the
sentence is substantively unreasonable because the guidelines calculation
included a four point leadership enhancement that was based upon clearly
erroneous factual findings; and (3) the sentence was substantively unreasonable
due to the disparity between Zavala’s sentence and those of similarly situated
defendants. Ultimately, the Court of Appeals affirmed Zavala-Martí’s sentence
as imposed by the district court, United States v. Zavala-Martí, 601 Fed. Appx
6 (1st Cir. 2015).
6 Indeed, a court may impose consecutive sentences for multiple counts even if
the counts are grouped for sentencing guidelines purposes. See, United States

Civil No. 16-2762 (FAB)

18

enhancement and Title 18, United States Code, § 3584(a) “bear on
conceptually

separate

notions

related

to

sentencing,”

United

States v. Rojas, 531 F.3d 1203, 1207 (10th Cir. 2008), the district
court did not engage in improper double counting, United States v.
Redmond, 388 Fed. Appx. 849 (8th Cir. 2010).
Zavala-Martí’s

final

argument

is

that

the

Court

improperly imposed the sentence for bribery-witness tampering to
be served consecutively to the drug-firearms offense.
Section 5G1.2(d) of the Sentencing Guidelines requires
that if the maximum sentence allowed under any one count does not
reach the total punishment calculated under the guidelines, the
district court must impose consecutive sentences on the multiple
counts until it reaches a sentence equal to the total punishment
calculated under the guidelines, United States v. García-Torres,
341 F.3d 61, 74 (1st Cir. 2003).

In petitioner’s case, the

guideline range was 30 years to life, and the statutory maximum
was 80 years.

The Court properly could and did stack the bribery-

witness tampering sentence on to the drug-firearms offense in order
to achieve the total punishment closer to the statutory maximum,
which came to a total sentence of imprisonment of 50 years.

To

reiterate what the First Circuit Court of Appeals determined about

v. Souphanthog, No. 19-10627, 2019 U.S. App. LEXIS, 32557 *7 (11th Cir. Oct. 31,
2019); United States v. Bonilla, 579 F. 3d 1233, 1245 (11th Cir. 2009).

Civil No. 16-2762 (FAB)

19

petitioner’s re-sentence, so as not to fall on deaf ears, “Clearly,
the district court here decided that the available facts, including
those already discussed above, outweighed any of the potential
factors favoring a lower sentence.
decision

constituted

an

abuse

of

We cannot say that this

discretion

so

as

to

remove

Zavala’s sentence from ‘the expansive boundaries of the universe’
of reasonable sentences.

Martin, 520 F.3d at 92”.

Zavala-Martí,

601 Fed. Appx. at 9 (1st Cir. 2015).
Petitioner cannot claim any allegation of ineffective
assistance of appellate counsel if he failed to raise what amounts
to erroneous or misplaced arguments.
meet the Strickland standard.

Zavala-Martí has failed to

His second claim is DENIED.

Before this Court are the complaints of a dissatisfied,
perhaps disgruntled defendant.

As of this date, Zavala-Martí is

still incarcerated while perhaps some of his co-defendants, whom
are no less culpable than he, are either approaching their release
dates or have been released.

As Zavala-Martí sees it, this is not

fair; yet the reality of petitioner’s situation is that he made an
informed

decision

and

chose

to

plead

guilty

to

the

entire

indictment even when there was a 17 year offer by the government.
He did so knowingly and voluntarily.

Even after pleading guilty,

he had numerous meetings with his counsel to discuss whether given
the

revelation

of

possible

impeachment

evidence

against

Civil No. 16-2762 (FAB)

20

cooperating defendants he should perhaps withdraw his guilty plea.
He once again chose not to.

Only after one of his co-defendants

had his conviction overturned and successfully entered into a plea
agreement with the government which provided for a sentence lower
than petitioner’s sentence did Zavala-Martí jump.

Then, Zavala-

Martí hired the same attorney that had successfully obtained the
reversal of conviction of his co-defendant to raise the same
arguments by way of a 2255 petition.
That is not how it works; that is not the purpose of a
2255 petition for relief.

At no time has petitioner made a claim

of actual innocence nor has he hinted at it.

On the contrary, all

Zavala-Martí has stated is that he might have been able to raise
reasonable doubt if he had gone to trial with the impeachment
evidence of which he had been made aware.

His unspoken argument

is that his sentence is greater than those of his co-defendants
who went to trial.

That is a risk Zavala-Martí took, and it does

not amount to a valid claim of ineffective assistance of counsel.
Petitioner gambled and lost.
IV.

CONCLUSION
For the reasons stated, petitioner José Manuel Zavala-Martí’s

motion pursuant to 28 U.S.C. § 2255 (Civil Docket No. 1) and its
supporting Memorandum of Law (Civil Docket No. 1-1), as well as

Civil No. 16-2762 (FAB)
all subsequent filings are DENIED.
prejudice.

21
This case is DISMISSED with

Judgment shall be entered accordingly.

If petitioner files a notice of appeal, no certificate of
appealability shall issue because he has not made a substantial
showing of the denial of a constitutional right.

See 28 U.S.C.

§ 2253(c)(2).
IT IS SO ORDERED.
San Juan, Puerto Rico, March 25, 2020.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE