Garcia-Ramos v. USA

Filing 2

OPINION AND ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 15-693) filed by Erick Tomas Garcia-Ramos. Petitioner's motion at ECF No. 1 is DENIED and the case is DISMISSED WITH PREJUDICE; the Court DENIES a certificate of appealability. The Clerk of Court shall enter judgment accordingly. Signed by Judge Aida M. Delgado-Colon on 11/27/2020.(wm)

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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

ERIK T. GARCIA-RAMOS,
Petitioner,
Civil No. 17-1966 (ADC)
[Related to Crim. No. 15-693-11 (ADC)]

v.
UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
Erik T. García-Ramos (“petitioner”) filed a pro se a petition pursuant to 28 U.S.C. § 2255,
asserting that trial counsel was ineffective for not seeking a minor role adjustment at sentencing.
ECF No. 1. For the reasons that follow, the petition is DENIED, and the case is DISMISSED
WITH PREJUDICE. ECF No. 1.
I.

Background
On November 5, 2015, a grand jury charged petitioner with conspiracy to possess with

intent to distribute controlled substances (Count One), aiding and abetting in the
possession/distribution of cocaine (Count Two), heroin (Count Three), and cocaine base (Count
Four). 15-CR-693 (ADC), ECF No. 3. 1 Petitioner was one of thirteen defendants charged.
Petitioner entered a Plea and Forfeiture Agreement pursuant to Fed. R. Crim. P.
11(c)(1)(B) whereby petitioner pled guilty to Count One of the Indictment. 15-CR-693 (ADC),
ECF No. 105. According to petitioner’s plea agreement, petitioner was to plead guilty to one

1

The Indictment was unsealed on November 12, 2015.

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count under “28 USC 841, 846, for the conspiracy to possess with the intent to distribute, a
reduced drug quantity: at least three point five (3.5) but less than five (5) kilograms of cocaine,
which pursuant to USSG Section 2D1.1(c)(6) established a base offense level of twenty-eight (28).
Since [petitioner] accepted responsibility for his participation in the offense, a three (3) level
deduction was also stipulated, establishing an adjusted offense level of twenty-five (25). The
parties stipulated to a sentence recommendation for a “sentence within the applicable guideline
sentencing range,” which in this case translated in a range of 60-71 months of imprisonment. 15CR-693, ECF No.105, at 8. The parties also agreed that two prior state convictions were to be
considered relevant conduct. More so, within paragraph 9 of the plea agreement, petitioner also
acknowledged and stipulated that “no further adjustments or departures…and no variances”
were to be sought by defendant. ECF No. 105. Petitioner stipulated his role within the conspiracy
as that of a “seller” and “runner” for the drug trafficking organization. 2 15-CR-693 (ADC), ECF
No. 105 at 13-14.
On January 24, 2017, as requested via petitioner’s sentencing memorandum, the Court
sentenced him to an imprisonment term of 60 months. Pursuant to the terms of the Plea and
Forfeiture Agreement, the government was to dismiss Counts Two, Three, and Four of the

“The runners worked under the supervision of the leaders of the drug trafficking organization. They were
responsible for providing sufficient narcotics to the sellers for further distribution at the drug point. They were also
responsible for collecting the proceeds of drug sales and paying the street sellers. The runners would also supervise
the sellers and the daily activities at the drug point. The following co-conspirators acted as drug point supervisors
and runners within the drug trafficking organization: [3] Ruben Figueroa Santiago, [5] Fred Bernard Rodríguez,
[11] Erick T. García Ramos and [12] Julio Araud Figueroa.” 15-CR-693 (ADC), ECF No. 160 at 7-8.
2

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indictment. Upon defendant’s guilty plea, judgment was entered accordingly. 15-CR-693
(ADC), ECF No. 239.
Petitioner did not appeal. ECF No. 1 at 3. Actually, pursuant to the plea agreement, he
had agreed to waive appeal rights, if sentenced withing the applicable guideline range.
However, docketed on July 17, 2017 at 17-1966 (ADC), ECF No. 1, petitioner filed the instant
habeas petition under 28 U.S.C. § 2255 seeking “[a] reduction in the offense level.” Id at 7.
Petitioner contends he was a “minimal participant in the conspiracy” and that he “acted as seller
for the drug trafficking organization.” Id at 5. Petitioner did not submit a memorandum or any
other brief in support of his petition. The Court, taking the petition in the light most favorable
to petitioner, assumes he intended to raise an ineffective assistance of counsel claim, based on
counsel’s failure to argue for a minor role adjustment.
II.

Legal Standard
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 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

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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.
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). This standard is “highly deferential” and courts “indulge a
strong presumption that . . . under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Walker v. Medeiros, 911 F.3d 629, 633 (1st Cir. 2018) (citing Strickland, 466
U.S. at 689).
The second prong requires that defendant “show that the deficient performance
prejudiced the defense, which requires proof that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Jaynes
v. Mitchell, 824 F.3d 187, 196 (1st Cir. 2016).
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). The petitioner bears a heavy burden of
proof in this regard. See Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996). However, the

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court need not address both requirements if the evidence as to either is lacking. “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed.” Strickland, 466 U.S. at 697.
III.

Discussion
Petitioner seeks habeas relief asserting that “his [a]ttorney failed to claim” a reduction

based on his minor role. ECF No. 1. Petitioner did not complain about any other aspect of
counsel’s performance nor did he challenge the Plea and Forfeiture Agreement.
A. Ineffective Assistance
Without stating any specific argument or narrative in support, petitioner shouldered his
entitlement to a minor role adjustment on counsel’s alleged ineffective assistance. The Court will
thus first turn to petitioner’s challenge to the constitutional effectiveness of counsel’s
performance.
The Sixth Amendment right to counsel applies to most stages before trial, including the
plea-bargaining stage and sentencing. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). Strickland’s
two-part test thus, ensues claims of ineffective assistance during the plea bargain process.
Accordingly, “[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

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a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. (citations and internal quotation marks omitted).
(i) Petitioner benefitted from entering into a Plea Agreement
Here, petitioner does not state what counsel did wrong. The Court has no thread to pull
in order to question counsel’s effectiveness. Quite the contrary, the information available in the
record stands in favor of counsel’s effective assistance. The Court notes that by entering into the
plea agreement petitioner benefitted from (i) a stipulated drug amount lower than the amount
originally charged, (ii) the dismissal of the three remaining charges against petitioner, (iii) a
three level reduction for his timely acceptance of responsibility, and (iv) avoided enhanced
guideline calculations, given the foreseeability of the use of weapons by co-conspirators, ,(v)
securing no enhancements but rather, concurrency or time credits for sentences at state level to
be deemed relevant conduct. Moreover, while a recommendation for a “within guideline
sentence” was agreed upon, petitioner was sentenced to the minimum under the applicable
range, which in turn is the statutory mandatory minimum. 15-CR-693 (ADC), ECF No. 160 at
16and ECF No. 239.
(ii) Drugs amount
Petitioner included an unclear statement indicating “whether the base offense level
calculation will consist of only those quantities of drug attributable to M.R. Garcia actions.” ECF
No. 1 at 3. Reading this assertion in light most favorable to petitioner, the Court assumes that
petitioner intended to raise an argument as to counsel’s ineffectiveness with regards to the
stipulated drugs amount for which he pled guilty. However, petitioner does not explain, nor

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does he proffer a different amount or version of the facts. Contrary to his unsubstantiated and
unclear assertion, petitioner benefitted by the drugs amount stipulation included in the plea
agreement. To wit, petitioner was originally charged with knowingly and intentionally possess
with intent to distribute and or to distribute controlled substances: in “(Count One) “in excess
of 5 kilograms of a mixture or substance containing a detectable amount of cocaine... in excess
of 1 kilogram of a mixture or substance containing a detectable amount of heroin… in excess of
280 grams of a mixture or substance containing a detectable amount cocaine base… and a
mixture or substance containing a detectable amount of marijuana”. 15-CR-693 (ADC), ECF No.
105 at 2, 465 at 18 (emphasis added). By stipulating the drugs amount to at least 3.5 kilogram
but less than 5 kilograms under Count One of the indictment, petitioner certainly benefited by
reducing his mandatory minimum sentence in half. In addition, the government agreed to
dismiss the remaining three charges against petitioner. More importantly, the petition fails to
set forth the reasons why counsel rendered an ineffective defense by allowing petitioner to plead
guilty to only one of four charges and to a lower drug amount as originally charged in the
indictment.
(iii) Petitioner was made aware of his waiver of rights
As to the waiver of constitutional rights, petitioner does not and cannot argue that the
waiver of rights he consented to via plea agreement, constitutes the basis of his counsel’s
ineffectiveness. During the Rule 11 (Change of Plea) hearing, the Court made petitioner aware
of all the rights he waived by agreeing to be sentenced in accordance with the Plea and Forfeiture
Agreement. 15-CR-693 (ADC), ECF No. 465 at 13-15. The same happened at sentencing when

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the Court alerted petitioner as to the consequences of having waived his appeal rights. Id, ECF
No. 464 at 13 (“I understand that you have been sentenced to the exact term that you negotiated
in your plea agreement and the same type of sentence upon which you waived your right to
appeal. As such that waiver is completely enforceable. If you were to decide to take an appeal
from the sentence that I imposed, you should expect that the government will move the Court
of Appeals to dismiss your appeal, with one basic argument, that you got the sentence that you
stipulated and bargained for.”). The Court also asked petitioner “[i]s there anything that you
would like to state, to say here that I should consider in deciding what your sentence will be?”
Id at 5. To such specific inquiry, petitioner answered in the negative.
(iv) Petitioner indicated he was happy with counsel’s job
Furthermore, the record clearly reflects that petitioner “represent[ed] to the Court that he
[was] satisfied with counsel… and that counsel has rendered effective assistance.” 15-CR-693
(ADC), ECF No. 105 at. 6. During the change of plea hearing, defendant was asked by the United
States Magistrate- Judge if he was happy with counsel’s “job,” to which petitioner responded
“yes.” 15-CR-693 (ADC), ECF No. 465.
(v) Minor role
Petitioner asserts that he was a “minimal participant in the conspiracy” insinuating that
his counsel was ineffective by not obtaining an adjustment. ECF No. 1 at 3. Even if the Court
were to consider whether petitioner qualified for a “minor role” adjustment, the petition once
again, fails.

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A determination of a defendant’s role in an offense “cannot be clearly erroneous where it
is based on a reasonable inference drawn from the undisputed facts.” United States v. DiIorio, 948
F.2d 1, 5 (1st Cir. 1991). “[A] defendant who aspires to be classified as a minor participant bears
the burden of proving that he is both (i) less culpable than most other participants in the offenses
of conviction, and (ii) less culpable than the average miscreant involved in offenses of the same
genre.” United States v. Sánchez, 354 F.3d 70, 74 (1st Cir. 2004). Moreover, a defendant who seeks
a minor role adjustment bears the burden of proving his entitlement thereto by a preponderance
of the evidence. U.S. v. Vargas, 560 F.3d 45, 50–51 (1st Cir. 2009).
Here, petitioner’s lonesome and conclusory argument at ECF No. 1 at 3 fails to set forth,
facts for the Court to consider any specific detail of his role as a “seller” or “runner” within the
drug trafficking organization that would entitle him to such adjustment. On the other hand, such
“minor role” was never stipulated to and the Court notes that petitioner stipulated, and has not
challenged - that he was also a “runner” for the drug trafficking organization. 15-CR-693 (ADC),
ECF No. 105 at 13-14. Though he fails to acknowledge as much in his petition, the record is clear.
Accordingly, petitioner has not shown that his attorney was inefficient during the pleabargaining or sentencing stage, as required under the first prong of Strickland. Much less can
petitioner’s claims be deemed to raise an issue of a potential prejudiced defense. The petition
thus fails to meet the Strickland’s factors and should be denied.
B.

An evidentiary hearing is not warranted

Mindful of the fact that petitioner filed a pro se habeas, the Court construes his petition as
liberally as possible. However, the deeper the Court delves into the record to look for any

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nuggets in support of the petition, the more evident it becomes that the petition is meritless.
Petitioner must understand that even if a two-point adjustment were to be allocated, given his
role in the offense, that would be an exercise in futility since the statutory minimum sentence
remains at sixty (60) months, which was the sentence imposed. Even if pro se, 3 petitioner bears
the burden of proving that he is entitled to relief. See United States v. Ocasio, 914 F.2d 330, 332 (1st
Cir. 1990). Petitioner failed to meet the bare bones requirements for a downward adjustment
based on his role in the offense. Moreover, “a § 2255 motion may be denied without a hearing as
to those allegations which, if accepted as true, entitle the movant to no relief, or which need not
be accepted as true because they state conclusions instead of facts, contradict the record, or are
‘inherently-incredible.’” United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993) (emphasis
added)(citing Shraiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984)); see Barrett v. United
States, 965 F.2d 1184, 1186 (1st Cir. 1992); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
Interpreted in the light most favorable to petitioner, the assertions at ECF No. 1 are nothing more
than unsupported conclusions. They are also contradicted by the record. Thus, an evidentiary
hearing is here unwarranted.
Accordingly, petitioner request ECF No. 1 is hereby DENIED without a hearing.
IV.

Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, a “district court must

issue or deny a certificate of appealability (“COA”) when it enters a final order adverse to the

“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).
3

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applicant.” Rules Governing § 2255 Proceedings, Rule 11, 28 U.S.C.A. § 2255. To merit a COA,
an applicant must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). As petitioner has not made out a case showing a violation or denial of a
constitutional right, a certificate of appealability is hereby DENIED.
V.

Conclusion
Petitioner’s motion at ECF No. 1 is DENIED and the case is DISMISSED WITH

PREJUDICE; the Court DENIES a certificate of appealability.
The Clerk of the Court shall enter judgment accordingly.
SO ORDERED.
At San Juan, Puerto Rico, on this 27th day of November, 2020.
S/AIDA M. DELGADO-COLÓN
United States District Judge