Filed: Dec. 22, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6449 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ISHMAEL AVIVE SANTIAGO, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:11-cr-00287-BO-2; 5:13-cv-00796-BO) Argued: October 27, 2015 Decided: December 22, 2015 Before NIEMEYER and SHEDD, Circuit Judges, and M. Hannah LAUCK, United States District Judge for
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6449 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ISHMAEL AVIVE SANTIAGO, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:11-cr-00287-BO-2; 5:13-cv-00796-BO) Argued: October 27, 2015 Decided: December 22, 2015 Before NIEMEYER and SHEDD, Circuit Judges, and M. Hannah LAUCK, United States District Judge for t..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6449
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ISHMAEL AVIVE SANTIAGO,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cr-00287-BO-2; 5:13-cv-00796-BO)
Argued: October 27, 2015 Decided: December 22, 2015
Before NIEMEYER and SHEDD, Circuit Judges, and M. Hannah LAUCK,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Christopher D. Smith, WEST VIRGINIA UNIVERSITY COLLEGE
OF LAW, Morgantown, West Virginia, for Appellant. Seth Morgan
Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Lawrence David Rosenberg,
Washington, D.C., Stephanie D. Taylor, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant. Thomas G. Walker, United States
Attorney, Jenifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Ishmael Avive Santiago appeals the denial of his 28 U.S.C.
§ 2255 motion, arguing that his counsel rendered ineffective
assistance at his Rule 11 hearing, at sentencing, and on appeal.
See Strickland v. Washington, 466 U.S. 668 (1984). Because
Santiago fails to show Strickland prejudice, we affirm.
I.
Santiago was charged in a three-count indictment with
conspiracy to commit Hobbs Act robbery, in violation of 18
U.S.C. § 1951 (Count 1); Hobbs Act robbery, in violation of 18
U.S.C. §§ 1951 and 2 (Count 2); and using and carrying a firearm
and possessing a firearm in furtherance of a crime of violence
and aiding and abetting, in violation of 18 U.S.C. §§ 924(c) and
2 (Count 3). These charges stem from the robbery of a Walgreens
in Clayton, North Carolina, carried out by Santiago and his
cousin, Rhaim.
As the two men entered the store, they wore bandanas over
the lower portion of their faces and Rhaim was armed with an SKS
rifle 1. After they entered the store, Rhaim accosted a store
clerk who was stocking merchandise, pointed his rifle at her,
1
Although not necessary for our decision, we note that
Rhaim and Santiago both confessed to authorities that they
mutually agreed, along with an unnamed juvenile male, to
purchase a rifle and commit an armed robbery.
3
and demanded that she open the cash register. Upset that the
clerk was taking too long, Rhaim struck her in the back of the
head with the rifle and walked her to the cash register.
Santiago and Rhaim absconded with less than $500. The store
clerk suffered a laceration on the back of her head and was
treated at the local hospital. Santiago turned himself in
several days later and confessed his involvement in the robbery.
In addition, authorities recovered a cell phone with images of
Santiago and Rhaim posing with the gun and money after the
robbery 2.
At Santiago’s initial hearing before a magistrate judge, he
was told that the § 924(c) count subjected him to “a penalty of
not less than [five] years, no more than life imprisonment
consecutive to any other sentence imposed.” (S.J.A. 231). The
magistrate judge asked if Santiago understood and Santiago
responded affirmatively.
Prior to trial, Santiago decided to plead guilty to Counts
1 and 3 pursuant to a plea agreement. Relevant here, regarding
Count 1, the plea agreement provided that Santiago would be
entitled to a three-level reduction of his offense level due to
acceptance of responsibility. As to Count 3, the plea agreement
explained that Santiago faced a maximum term of imprisonment of
2 The robbery was also caught on video surveillance.
4
“life, consecutive to any other term of imprisonment” and a
minimum term of imprisonment of “[five] years, consecutive to
any other term of imprisonment.” (J.A. 212). Santiago also
agreed, as part of the plea agreement, that:
the Court will take into account, but is not bound by,
the applicable United States Sentencing Guidelines,
that the sentence has not yet been determined by the
Court, that any estimate of the sentence received from
any source is not a promise, and that even if a
sentence up to the statutory maximum is imposed, the
Defendant may not withdraw the plea of guilty.
(J.A. 212).
The district court conducted a Rule 11 colloquy prior to
accepting Santiago’s plea. During the colloquy, the court
mistakenly stated that Count 3 “carries up to five years in
prison . . . consecutive to any other prison time.” (J.A. 27-28)
(emphasis added). Neither the Government nor Santiago’s attorney
objected to this statement. The court also did not inform
Santiago of the potential for an enhanced mandatory minimum
under § 924(c)(1)(A). 3 After the court’s misstatement, Santiago
affirmed that he read and understood the plea agreement and that
he had no additional questions. Santiago also affirmed that his
counsel had explained the plea agreement and that his plea was
3Section 924(c) provides a mandatory minimum of five years
if the defendant used and carried a firearm during a crime of
violence, but also provides for an enhanced penalty of seven
years if the firearm was brandished and ten years if the firearm
was discharged. 18 U.S.C. § 924(c)(1)(A)(i-iii).
5
voluntary. At the end of the hearing, the court accepted the
plea.
Following the Rule 11 hearing, the probation office
prepared Santiago’s Presentence Report (PSR). On Count 3, the
PSR found that because the firearm was brandished during the
robbery, § 924(c)(1)(A)(ii) applied. That statute provides for a
mandatory minimum of seven years imprisonment (rather than five)
if the firearm was brandished. Thus, the PSR recommended a
guidelines range of 84 months on Count 3 consecutive to any
sentence for Count 1. For Count 1, the PSR recommended a base
offense level of 20, with a three-level enhancement for causing
bodily injury, a four-level enhancement for abduction, and a
three-level reduction for acceptance of responsibility. This
calculation yielded a total offense level of 24 and a guidelines
range of 51-63 months imprisonment. Without the three-level
reduction for acceptance of responsibility provided by the plea
agreement, Santiago faced an offense level of 27 and a
corresponding guidelines range of 70-87 months imprisonment.
At sentencing, Santiago confirmed that he had received the
PSR and had an opportunity to review it prior to the hearing.
When asked twice if he had any comment on the PSR, Santiago
deferred to counsel, who objected to the four-level abduction
enhancement on Count 1. Neither Santiago nor his counsel
mentioned the increase in the mandatory minimum from five years
6
to seven years and at no point did Santiago move to withdraw his
plea. The district court overruled the objection to the
abduction enhancement and sentenced Santiago to 51 months
imprisonment on Count 1 and 84 months imprisonment on Count 3,
to run consecutively.
Santiago filed a timely notice of appeal. Counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), but
did ask us to review the four-level abduction enhancement. We
issued a per curiam opinion affirming in part and dismissing in
part. United States v. Santiago, 498 Fed. App’x 222 (4th Cir.
2012). In reviewing Santiago’s guilty plea, we concluded that
the district court “substantially complied with Rule 11’s
requirements, and committed no error warranting correction on
plain error review.”
Id. at *224.
In November 2013, Santiago filed a motion to vacate his
conviction under 28 U.S.C. § 2255. Santiago attached an
affidavit alleging that his counsel was ineffective for failing
to object to the district court’s misstatement about the
sentence and, consequently, his plea was unknowing as to Count
3. Santiago alleged that, had the district court’s error not
occurred, he would have pleaded not guilty on Count 3 and gone
to trial and “likely would have received the 60 month sentence”
for Count 3. (J.A. 67). The Government moved to dismiss, arguing
that any error by the district court was cured by the plea
7
agreement, which correctly stated that five years was the
statutory minimum, not the statutory maximum. The district court
granted the motion to dismiss, concluding that counsel was not
ineffective in failing to object at the Rule 11 hearing because
the plea agreement had the proper terms. The court explained,
“[Santiago] cannot meet the Strickland standard to show
ineffective assistance of counsel as it is not objectively
unreasonable to refuse to object to harmless error or pursue
such a claim on appeal.” (J.A. 119).
Santiago filed a timely appeal and this court issued the
following certificate of appealability:
We grant a certificate of appealability on Santiago’s
claim that his counsel, Leza Lee Driscoll, rendered
ineffective assistance of counsel at the Fed. R. Crim.
P. 11 hearing, at sentencing and on direct appeal for
failing to object to or raise a claim concerning the
district court’s failure to advise Santiago of the
correct mandatory minimum and maximum penalties he was
facing for a violation of 18 U.S.C. § 924(c) (2012).
(J.A. 125).
II.
We review de novo the district court’s decision on a motion
to vacate under § 2255. United States v. Poindexter, 492 F.3d
263, 267 (4th Cir. 2007). “We are entitled to affirm on any
ground appearing in the record, including theories not relied
upon or rejected by the district court.” United States v.
8
Flores-Granados, 783 F.3d 487, 491 (4th Cir. 2015) (internal
quotation marks omitted).
To prevail on an ineffective assistance claim under
Strickland, Santiago must satisfy “two necessary components.”
Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015). First,
Santiago “must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687.
Second, Santiago “must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Id. The Strickland
Court also made clear that “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed,” and we do so
here.
Id. at 697.
To establish Strickland prejudice, Santiago “must show that
there is a reasonable probability that, but for 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.” Id. at 694.
“Strickland asks whether it is ‘reasonably likely’ the result
would have been different,” and the “likelihood of a different
9
result must be substantial, not just conceivable.” Harrington v.
Richter, 562 U.S. 86, 111-12 (2011).
This prejudice analysis contains another layer in the
context of a guilty plea. Because a guilty plea is a “solemn
declaration[] in open court,” it has “strong presumption of
verity” that we will not set aside on “subsequent presentation
of conclusory allegations unsupported by specifics.” Blackledge
v. Allison, 431 U.S. 63, 74 (1977). Because “a prisoner has
everything to gain and nothing to lose from filing a collateral
attack upon his guilty plea,”
id. at 71, “strict adherence to
the Strickland standard [is] all the more essential when
reviewing the choices an attorney made at the plea bargain
stage,” Premo v. Moore,
562 U.S. 115, 125 (2011).
Thus, to establish a “reasonable likelihood” under
Strickland in this context, 4 Santiago must show a “reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Id.
at 129 (internal quotation marks omitted). Importantly, Santiago
must show both subjectively that he would have gone to trial and
4Santiago has three claims of ineffective assistance: at
the Rule 11 hearing; at sentencing once the seven year mandatory
minimum was adopted; and on appeal for failing to raise the Rule
11 violation. However, all three ultimately turn on Santiago’s
contention that he would have gone to trial if he had been aware
of the seven year mandatory minimum.
10
that it would have been objectively reasonable to do so. United
States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012) (holding
“what matters is whether proceeding to trial would have been
objectively reasonable in light of all of the facts”).
Santiago’s “subjective preferences, therefore, are not
dispositive.”
Id. As we recently explained:
The challenger “cannot make that showing merely by
telling [the court] now that [he] would have gone to
trial then if [he] had gotten different advice.” Pilla
v. United States, 668 F.3d 368, 372 (6th Cir. 2012).
In other words, to obtain relief from a guilty plea,
the defendant must do more than allege he would have
insisted on going to trial if counsel had not
misadvised him as to the consequences of that
decision. The “petitioner must convince the court that
a decision to reject the plea bargain would have been
rational under the circumstances.” Padilla v.
Kentucky, 559 U.S. 356, 372 (2010).
Christian v. Ballard,
792 F.3d 427, 452 (4th Cir. 2015).
We readily acknowledge as a preliminary matter that the
district court committed error when it stated that Santiago
faced a maximum of five years imprisonment rather than a minimum
of five years and that Santiago’s counsel should have noticed
this error and moved to correct it. Santiago’s counsel also
failed to recognize that the court did not inform Santiago of
the potential for enhanced mandatory minimums under § 924(c). 5 It
5
At the very least, it became apparent that Santiago faced
a possible seven year mandatory minimum for brandishing when the
Government, in putting the factual basis for the plea on the
(Continued)
11
is pellucid that “a district court’s failure to alert a criminal
defendant to a potential mandatory minimum sentence is a serious
omission that strikes at the core of Rule 11.” United States v.
Massenburg, 564 F.3d 337, 346 (4th Cir. 2009); see also United
States v. Hairston,
522 F.3d 336, 341-42 (4th Cir. 2008) (same).
That Santiago’s counsel failed to notice these errors, however,
does not mean that Santiago was prejudiced by his counsel’s
failure.
“Pleading guilty generally involves a conscious decision to
accept both the benefits and burdens of a bargain. That decision
may not be lightly undone by buyer’s remorse on the part of one
who has reaped advantage from the purchase.” Fugit, 703 F.3d at
260. Moreover, “[d]efendants plead guilty for various reasons,
many of which are wholly unrelated to the length of a potential
sentence.”
Massenburg, 564 F.3d at 344. Here, it would not have
been rational for Santiago to go to trial given the strength of
the Government’s case against him and the benefits Santiago
derived from the plea agreement. We have repeatedly noted that
when the Government’s case is strong, a defendant faces a nearly
insurmountable obstacle to showing that it would have been
rational to go to trial.
Christian, 792 F.3d at 453 (noting not
record, stated that Santiago’s co-defendant struck the clerk in
the back of the head with the gun.
12
rational to reject plea when guilt was overwhelming), Fugit, 703
F.3d at 260 (same);
Massenburg, 564 F.3d at 344 (noting when
case was a “strong one” the court “can legitimately question
what Massenburg would have to gain by going to trial”).
The Government presented overwhelming evidence of
Santiago’s guilt. The robbery was on videotape, Santiago
confessed to robbing the Walgreens with his cousin, and images
depicted the two men posing with the gun and the money following
the robbery. Santiago argues that he did not possess the gun
that was brandished, but Count 3 charged Santiago with the
§ 924(c) violation and aiding and abetting. Santiago’s defense
that his cousin, with whom he committed the robbery, had actual
possession of the gun is not a “rational defense” against an
aiding and abetting § 924(c) charge. Pilla, 668 F.3d at 373.
In addition, there is no record evidence from Santiago’s
plea or sentencing hearings suggesting that Santiago would have
moved to withdraw his plea if the correct information was
provided. While the district court called the five-year term a
maximum rather than a minimum, the plea agreement—which Santiago
affirmed multiple times he had read—correctly referred to the
five-year term as a mandatory minimum. Regarding the seven-year
minimum recommended by the PSR, the district court specifically
asked Santiago if he read the PSR and had any objections or
comments on it. While the PSR “cannot cure the Rule 11 violation
13
in his case,” Santiago’s failure to take any action after
learning of the seven year mandatory minimum provides “some
evidence that he would have entered the plea regardless.”
Massenburg, 564 F.3d at 344.
Finally, as recounted above, the low-end of Santiago’s
guidelines range on Count 1 dropped from 70 months to 51 months
as a result of the three-level reduction for acceptance of
responsibility provided by the plea agreement. If Santiago had
gone to trial, he would have faced the same mandatory minimum of
seven years on Count 3, and, without the three-level reduction
for acceptance of responsibility, he would have been looking at
a longer sentence on Count 1. In effect, then, the “only
consequence” of Santiago’s decision to plead guilty rather than
going to trial “is that [Santiago] got a shorter prison term
than otherwise.” Pilla, 668 F.3d at 373. That decision certainly
did not prejudice Santiago.
Santiago’s argument amounts to a presumption of Strickland
prejudice in mandatory-minimum cases. We have rejected this
position in the context of plain error, and we reject it again
here. See Massenburg, 564 F.3d at 345 (noting “[a]bsent a
presumption of prejudice, Massenburg is left only to appeal to
our desire for an adjudicatory process that is free from error,”
and “[e]rrors are commonplace, . . . and our affection for
procedural perfection cannot operate to the detriment of our
14
commitment to other, equally important, principles of
adjudication”).
III.
Because Santiago cannot show Strickland prejudice, we
affirm the district court’s dismissal of his § 2255 motion.
AFFIRMED
15
