Ross de-la Cruz v. USA

Filing 10

OPINION AND ORDER denied 3 pro se Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Chief Judge Gustavo A. Gelpi on 2/25/2020. (mld)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUIS ROSS DE LA CRUZ
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant

CIVIL 16-3008CCC
(Related Cr. 12-0192-17CCC)

OPINION AND ORDER
Before the Court is petitioner Luis Ross de la Cruz’s Motion to Vacate,
Correct, or Set Aside Sentence Under 18 U.S.C. § 2255 (d.e. 3) filed
November 22, 2016; petitioner’s Supplemental Motion (d.e. 5) filed April 4,
2017; and the United States’ Response in Opposition (d.e. 7) filed May 22,
2017.

Amendment 794 Claim
Petitioner argues that he is entitled to a sentence reduction pursuant to
Amendment 794 to the United States Sentencing Guidelines, which clarified
the application of the minor role adjustment and came into effect after
petitioner’s sentence became final. Under 18 U.S.C. § 2255(a), a petitioner
may move for relief on a claim that is not constitutional or jurisdictional in
nature “only if the claimed error is ‘a fundamental defect which inherently
results in a complete miscarriage of justice’ or ‘an omission inconsistent with
the rudimentary demands of fair procedure.’ . . . The error must ‘present
exceptional circumstances where the need for the remedy afforded by the writ
of habeas corpus is apparent.’ Knight v. United States, 37 F.3d 769, 772
(1st Cir. 1994) (internal citations omitted). The First Circuit has held that

CIVIL 16-3008CCC
(Related Cr. 12-0192-17CCC)

2

misapplication of the sentencing guidelines, without exceptional circumstances,
does not rise to the level of miscarriage of justice. Knight, 37 F.3d at 773-774.
As petitioner Luis Ross de la Cruz alleges that the Court improperly failed to
apply a minor role reduction without making a showing of exceptional
circumstances, his Amendment 794 claim is not cognizable and must be
denied.
Even if the Court considers defendant’s motion a request for a sentence
reduction under 18 U.S.C. § 3582(c)(2) rather than a § 2255 motion, it must still
fail. Sentence reduction is only available for amendments that are listed at
U.S.S.G. § 1B1.10(c); Amendment 794 is not listed. See id. § 1B1.10(a) (“If
none of the amendments listed in subsection (c) is applicable, a reduction in
the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) . . . is not
authorized.”); United States v. Lopez-Pineda, 55 F.3d 693, 697 n. 3
(1st Cir. 1995) (guideline amendment not listed in U.S.S.G. § 1B1.10(c) may
not be applied retroactively).

Ineffective Assistance of Counsel Claim
To prevail on an ineffective assistance of counsel claim under
Strickland v. Washington, 466 U.S. 668 (1984), a "(1) petitioner must show that
counsel's representation fell below an objective standard of reasonableness,
and (2) there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Argencourt v.
United States, 78 F.3d 14 (1st Cir. 1996). In the context of a guilty plea, a
petitioner must demonstrate that "there is a reasonable probability that, but for

CIVIL 16-3008CCC
(Related Cr. 12-0192-17CCC)

3

counsel's errors, he would not have pleaded guilty and would have insisted on
going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The failure of petitioner’s counsel to request a minor role reduction at
sentencing did not fall below an objective standard of reasonableness. In fact,
petitioner’s plea agreement stipulates that no further adjustments or departures
may be requested at sentencing; by requesting a minor role reduction,
petitioner’s counsel would have put the plea deal in jeopardy.

Further,

petitioner does not argue that he would have gone to trial but for counsel’s
failure to request a minor role reduction.

As petitioner’s claim fails the

Strickland test, his ineffective assistance of counsel claim must be denied.

Conclusion
For the foregoing reasons, petitioner Luis Ross de la Cruz’s’ Motion to
Vacate, Correct, or Set Aside Sentence Under 18 U.S.C. § 2255 (d.e. 3) is
DENIED. Judgment shall enter by separate order.

CERTIFICATE OF APPEALABILITY
The Court hereby ORDERS that no certificate of appealability shall be
issued as petitioner failed to make a substantial showing of the denial of a
constitutional right as required by 28 U.S.C. § 2253(c)(2).
SO ORDERED.
In San Juan, Puerto Rico this 25th day of February, 2020.

S/GUSTAVO A. GELPÍ
Chief United States District Judge