Santiago-Rivera v. USA
Filing
19
ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 14-742) filed by Edwin J. Santiago-Rivera, 13 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 14-742-ADC-1) filed by Edwin J. Sa ntiago-Rivera. Petitioner's request and amended request for relief under section 2255 are DENIED. ECF Nos. 1, 13. The Clerk of Court shall enter judgment accordingly. Signed by Judge Aida M. Delgado-Colon on 7/25/2019.(wm)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EDWIN J. SANTIAGO-RIVERA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Civil No. 16-3007 (ADC)
[Related to Crim. No. 14-742 (ADC)]
Respondent.
ORDER
Edwin J. Santiago-Rivera (“petitioner”) brings a petition pursuant to 28 U.S.C. § 2255 to
vacate or set aside his conviction. ECF Nos. 1, 13. The Court appointed counsel on behalf of
petitioner, allotting counsel forty-five days to evaluate the petition and file a supplementary
briefing. ECF No. 15. The government filed a response in opposition. ECF No. 17. Appointed
counsel did not file anything in support of petitioner’s request. For the following reasons, the
petition and amended petition are DENIED. ECF Nos. 1, 13.
I.
Background
The government filed a four-count indictment against petitioner, charging him with one
count of transportation of a minor with intent to engage in criminal sexual activity, one count of
production of child pornography, one count of production/attempted production of child
pornography, and one count of possession of child pornography, in violation of 18 U.S.C.
§§ 2423(a), (e); 2252(a)(4)(B). Crim. No. 14-742, ECF No. 13. Petitioner pleaded guilty to one
Civil No. 16-3007 (ADC)
Page 2
count of transportation of a minor with the intent to engage in criminal sexual activity, in
violation of 18 U.S.C. § 2423(a), in exchange for dismissal of the other counts. Id. at ECF No. 29.
According to the facts stipulated in the plea agreement, petitioner engaged in sexual intercourse
with a 14-year-old female on November 21, 2014, after driving her to a motel in Ponce, Puerto
Rico. Id. at 11–13. On several occasions, he also shared explicit photographs of the teenager with
another individual via text message and through a cell phone application called “kik.” Id. at 11–
12. On July 1, 2015, the Court sentenced petitioner to 200 months imprisonment, in accordance
with the sentencing range and guidelines calculation outlined in the plea agreement. 1 Id. at ECF
Nos. 86; 29.
Despite the plea agreement containing an appeal waiver, petitioner timely filed a notice
of appeal. In his appeal, he challenged the constitutionality of 18 U.S.C. § 2423(a), raising
commerce clause arguments “indistinguishable” from those the First Circuit Court of Appeals
addressed in United States v. Carrasquillo-Peñaloza, 826 F.3d 590 (1st Cir. 2016). Id. at ECF Nos.
87, 91. The defendant in Carrasquillo-Peñaloza pleaded guilty to one count of attempting to
prostitute a 14-year-old girl, in violation of 18 U.S.C. § 2423(a), and then appealed “the
application of 18 U.S.C. § 2423(a) to conduct wholly within Puerto Rico” as exceeding
“Congress’s legislative authority.” Carrasquillo-Peñaloza, 826 F.3d at 591. The Court of Appeals
held that the defendant “waived her right to bring [her commerce clause challenge] by entering
1
Now-retired United States District Judge José A. Fusté presided over the underlying criminal case.
Civil No. 16-3007 (ADC)
Page 3
an unconditional guilty plea.” Id. at 593. Likewise, in this case, the Court of Appeals summarily
denied petitioner’s appeal in light of Carrasquillo-Peñaloza. Crim. No. 14-742, ECF No. 91.
Now, petitioner has repackaged his commerce clause arguments as ineffective assistance
of counsel claims, asserting that counsel was ineffective for failing to challenge the jurisdiction
of the federal government to prosecute the crime to which he pleaded and for convincing him
to plead to an unconstitutional offense. ECF Nos. 1, 13. He asserts that the Supreme Court’s
subsequent decision in Puerto Rico v. Sanchez-Valle, 136 S.Ct. 1863 (2016), has altered the analysis
since Carrasquillo-Peñaloza. ECF Nos. 1 at 4, 7, 9, 12; 13 at 5. He also argues that defense counsel
performed deficiently by failing to object to errors in the application of the Federal Sentencing
Guidelines that resulted in petitioner receiving a longer term of imprisonment for his offense
than “Congress intended.” ECF No. 1 at 10–11.
II.
Legal Standard
Although the Court appointed counsel to assist petitioner in this matter, counsel opted
not to supplement petitioner’s pro se filings. Accordingly, the Court will liberally construe the
pro se petition, though “pro se status does not insulate a party from complying with procedural
and substantive law.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). The Court will deem
waived any “argument that is merely mentioned in passing or is hidden behind Petitioner’s
primary complain[t]s as a mere afterthought.” Cruz Vázquez v. United States, 2019 WL 1055034,
at *2 (D.P.R. Mar. 5, 2019) (citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding
Civil No. 16-3007 (ADC)
Page 4
that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived”).
To succeed on a claim that counsel was constitutionally ineffective, “[p]etitioner must first
show that his counsel’s ‘performance was deficient,’ and he must then show that ‘the deficient
performance prejudiced the defense.’” Williams v. United States, 858 F.3d 708, 715 (1st Cir. 2017)
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “The first requirement necessitates a
demonstration that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. (citation and internal
quotation marks omitted). Nonetheless, courts “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. (citations and
internal quotation marks omitted). The prejudice requirement, meanwhile, necessitates a
demonstration of “a reasonable probability that, but for counsel’s errors, [petitioner] would not
have pleaded guilty and would have insisted on going to trial.” Lee v. United States, 137 S.Ct.
1958, 1965 (2017) (citation and internal quotation marks omitted). Failure to prove either prong
of an ineffective assistance claim is fatal to the claim. United States v. Caparotta, 676 F.3d 213, 219–
20 (1st Cir. 2012).
III.
Analysis
The bulk of petitioner’s ineffective assistance arguments are founded on the premise that
18 U.S.C. § 2423(a) unconstitutionally penalizes conduct occurring exclusively within Puerto
Rico. This argument has been consistently rejected in this jurisdiction.
Civil No. 16-3007 (ADC)
Page 5
Section 2423(a) prohibits the knowing transportation of a minor “in interstate or foreign
commerce, or in any commonwealth, territory or possession of the United States” with intent to
engage in criminal sexual activity. For section 2423(a) purposes, Puerto Rico is a commonwealth
of the United States, United States v. Greaux-Gómez, 254 F. Supp. 3d 329, 333 (D.P.R. June 5, 2017),
and Congress may rely on the Territorial Clause “to criminalize certain intrajurisdictional
activity” within Puerto Rico, United States v. Ríos-Rivera, 913 F.3d 38, 44 (1st Cir. 2019).
Moreover, petitioner’s reliance on Sanchez-Valle’s analysis regarding Puerto Rico’s
relationship with the United States is misplaced. “Whether and how a federal statute applies to
Puerto Rico is a question of Congressional intent,” Antilles Cement Corp. v. Fortuño, 670 F.3d 310,
320 (1st Cir. 2012), rendering Puerto Rico’s political relationship with the United States “beside
the point,” see United States v. Maldonado-Burgos, 844 F.3d 339, 345 (1st Cir. 2016) (interpreting
the reach of 18 U.S.C. § 2421). The congressional intent behind section 2423(a) is clear in the
unambiguous statutory language extending the prohibition to activity occurring wholly within
“any commonwealth, territory or possession of the United States.” See United States v. CottoFlores, 2016 WL 5818476, at *2 (D.P.R. Oct. 5, 2016) (quoting the relevant Congressional
Committee Report as echoing the intent clearly expressed in the enacted language).
Thus, section 2423(a) unambiguously “applies to transportation” of minors with intent to
engage in criminal sexual activity, even when that conduct occurs “wholly within Puerto Rico.”
See Crespo v. United States, 151 F.2d 44, 45 (1st Cir. 1945); accord Ríos-Rivera, 913 F.3d at 44; GreauxGómez, 254 F. Supp.3d at 333 (noting that Crespo remains “binding authority”); United States v.
Civil No. 16-3007 (ADC)
Page 6
Montijo-Maisonet, 254 F. Supp.3d 313, 315 (D.P.R. June 2, 2017) (collecting cases). Thus, there is
no basis to hold defense counsel’s failure to raise a futile commerce clause challenge to section
2423(a) as prejudicially ineffective.
Petitioner’s challenge to the application and calculation of the sentencing guidelines is
also unavailing. He argues his sentence was incorrectly calculated because the Court utilized the
base offense level for production of pornography, rather than transportation of a minor. ECF No. 1
at 11. As the government points out, in making this argument petitioner “ignores the application of
the cross-reference to production of child pornography pursuant to U.S.S.G. § 2G1.3(c)(1) stipulated
in his plea agreement.” ECF No. 17 at 14. As the government expounds, “[h]aving made this
stipulation, which was both factually and legally correct, counsel could not have argued against it
without breaching the” plea agreement. Id.
The Court agrees. The stipulated facts, the soundness of which petitioner does not dispute,
support the base level calculation employed. Petitioner admitted he took and distributed sexually
explicit photographs of a minor, rendering application of the cross-reference guideline for child
pornography factually supported. Nonetheless, although the statutorily prescribed sentencing
range for a section 2423(a) conviction is ten years to life, 18 U.S.C. § 2423(a), the government
stipulated in the plea agreement that it would not seek greater than a 210 month (17.5 year) sentence.
Crim. No. 14-742, ECF No. 29 at 5. Thus, any objection counsel could have made to the base level
offense calculation would have been futile and could have risked breaching the plea agreement.
Defense counsel was not deficient for failing to object to the guidelines calculation on this basis.
Civil No. 16-3007 (ADC)
IV.
Page 7
Conclusion
Petitioner’s request and amended request for relief under section 2255 are DENIED. ECF
Nos. 1, 13. The Clerk of the Court shall enter judgment accordingly.
SO ORDERED.
At San Juan, Puerto Rico, on this 25th day of July, 2019.
S/AIDA M. DELGADO-COLÓN
United States District Judge
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