Filed: Jan. 19, 2012
Latest Update: Feb. 22, 2020
Summary: , 3, At sentencing, Anglada declared that the parties .4, Moreno points us to United States v. Alvarez-Tautimez, a Ninth, Circuit case where counsel's failure to move to withdraw the, defendant's guilty plea was determined to meet Strickland's, prejudice requisite. 160 F.3d 573 (9th Cir.
United States Court of Appeals
For the First Circuit
No. 10-1938
OMAR MORENO-ESPADA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Alexander Zeno, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief for appellee.
January 19, 2012
TORRUELLA, Circuit Judge. Omar Moreno-Espada ("Moreno")
pled guilty to two counts related to his involvement in a drug
selling conspiracy in the Coamo, Puerto Rico area. Sentenced to
108 months imprisonment and 8 years supervised release, this is the
second time Moreno brings his case before this Court: along with
two co-defendants, Moreno previously pursued a direct appeal,
alleging that errors in the plea proceedings rendered his plea
invalid. We affirmed. See United States v. Moreno-Espada, No. 06-
2759 (1st Cir. Sept. 17, 2008) (unpublished opinion). Moreno now
appeals the district court's denial of his subsequent petition to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255, on grounds that he received ineffective assistance of
counsel in violation of the Sixth Amendment. After careful review
of Moreno's claim, we affirm the district court's judgment.
I. Background
On November 9, 2005, Moreno was indicted for conspiring
to possess with intent to distribute five kilograms or more of
cocaine and one kilogram or more of heroin within 1,000 feet of a
public housing project1 in violation of 21 U.S.C. §§ 841, 846, and
860, and conspiring to unlawfully possess, use, or brandish a
firearm in furtherance of or during and in relation to a drug
1
Specifically, the Las Palmas Public Housing Project in Coamo,
Puerto Rico.
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trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and
924(o).
Moreno initially pled not guilty to the charged counts,
but later moved to change his plea. On April 3, 2006, at a change
of plea hearing, Moreno pled guilty to both counts and filed a plea
agreement. As filed with the magistrate judge, the plea agreement
between Moreno and the government stipulated to a total offense
level of 29. This calculation stipulated that Moreno was
accountable for at least 3.5 kilograms but less than 5 kilograms of
cocaine, yielding a base offense level of 30 pursuant to U.S.S.G.
§ 2D1.1. In addition, it reflected a 2-level enhancement for
possession of a firearm under § 2D1.1(b)(1) and a 3-level reduction
for acceptance of responsibility under § 3E1.1. The agreement also
stated that a "safety valve" reduction was inapplicable and assumed
(but did not stipulate) to a criminal history category ("CHC")
of I. Taken together, these factors yielded a sentencing
guidelines range of 87 to 108 months of imprisonment and a
statutory maximum sentence of 40-years imprisonment. Ultimately,
the agreement recommended 87 months imprisonment and 4 years of
supervised release for Moreno.
During the change of plea hearing, the presiding
magistrate judge informed Moreno that the submitted plea agreement,
rendered pursuant to Fed. R. Crim. P. 11(c)(1)(A)-(B), was
precatory in nature, that his sentence would ultimately be "within
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the sound discretion of the sentencing judge," and that the
sentencing court would "not be able to determine the Guideline
Sentence" until Moreno's presentence investigation report ("PSR")
was completed. The magistrate judge also explained to Moreno that
the sentencing court could impose a sentence as high as permitted
by the statutory maximum and that Moreno could not withdraw his
guilty plea if this happened. Moreno stated that he understood the
rights he waived and expressed that he was satisfied with his
attorney, Rafael Anglada ("Anglada"), whom Moreno said had provided
effective legal assistance. On April 4, 2006, the magistrate judge
submitted a report recommending that the district court accept
Moreno's guilty plea, an action the district court took on
April 12, 2006.
Although the proceedings relating to Moreno were
otherwise executed in textbook-like fashion up to this point, a
problematic oversight -- uncorrected by the magistrate judge,
Anglada, or the government -- is crucial to Moreno's appeal: at
the time Moreno pled guilty, his plea agreement did not fully
account for Moreno's potential sentence exposure. Specifically, a
2-level sentence enhancement under U.S.S.G. § 2D1.2(a)(1) --
relevant to Moreno because the charged drug offense took place
"within one thousand feet of . . . [a] housing facility owned by a
public housing authority," 21 U.S.C. § 860(a), and clearly
applicable on the indictment's terms -- was omitted from Moreno's
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plea agreement with the government. Had this enhancement been
factored into the agreement's calculations, it would have shown the
proper sentencing guideline range as to Moreno to be 108 to 135
months imprisonment with a minimum supervised release term of 8
years.
On May 18, 2006, Anglada filed a motion to withdraw
Moreno's guilty plea and withdraw his representation. The motion
explained that Moreno wished to withdraw his plea because he had
learned from his brother, one of his co-defendants, that the
government's evidence against him contained "many lies." The
motion further averred that Moreno had not seen the entered plea
agreement until the day of the hearing and that Moreno no longer
agreed with the agreement's contents. The district court rejected
Anglada's request to withdraw as counsel and denied the motion to
withdraw Moreno's guilty plea, noting that Moreno did not describe
the alleged "lies" in the government's evidence, that Moreno had
stated that he was satisfied with his representation during the
change of plea hearing before the magistrate judge, and that,
contrary to what his motion alleged, Moreno's remarks and
admissions at the plea hearing undercut his claim that he was
"pressured" to plead guilty.
On November 7, 2006, Moreno's PSR was issued. Unlike the
plea agreement, the PSR correctly calculated Moreno's sentencing
exposure and included the 2-level enhancement under § 2D1.2(a)(1),
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assigning Moreno a total offense level of 31 instead of 29, and a
sentencing guidelines range of 108 to 135 months imprisonment.2
Moreno's sentencing hearing was then held on November 14,
2006. The government and Moreno's counsel objected to the PSR's
inclusion of the "protected location" enhancement, explaining that
the parties had not contemplated it in their plea negotiations.3
The court overruled these objections, noting that the plea
agreement's stipulated facts and the indictment both explicitly
referenced the fact that the charged offense had taken place in a
housing project, a protected location. The district court also
concluded that the objections were not preserved because they were
either never filed or were untimely. The district court then
sentenced Moreno to 108 months imprisonment, the minimum term
within the PSR-suggested range, for each charged offense, to be
served concurrently, as well as 8 years of supervised release for
the first offense and 3 years supervised release for the second
offense, to be concurrently served.
Moreno challenged the validity of his plea on direct
appeal to this Court, claiming that "the factual predicate for his
2
Properly calculated, the statutory maximum term of imprisonment
as to Moreno also changed from 40 to 80 years.
3
At sentencing, Anglada declared that "the parties . . . never
contemplated the presence of [the § 2D1.2 enhancement] in the
indictment." Echoing Anglada's assertion, the government stated
that "the parties didn't in fact discuss the [] enhancement." The
government stood by the plea agreement and recommended a sentence
of 87 months imprisonment.
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guilty plea . . . was inadequate." Moreno-Espada, No. 06-2759,
slip op. at 2 (1st Cir. Sept. 17, 2008) (unpublished opinion). On
September 17, 2008, we rejected Moreno's claims along with those of
two of his co-defendants. In doing so, we explained that Moreno
and his co-appellants failed to meet their burden of establishing
that the flaws in the disclosure of their full sentencing exposure
prejudiced their substantial rights. Id. Reviewing under a plain
error standard because neither Moreno nor his co-defendants moved
to withdraw their guilty pleas once their PSRs revealed the flaws
in their plea agreements, we held that the appellants could not
establish a reasonable probability that the outcome of their cases
would have been different in the absence of error.
Id.
Undaunted, Moreno subsequently filed the present claim to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255,
now contending that Anglada's failure to consider the full effects
of the charged offense on the sentence that the district court
could impose constituted ineffective assistance of counsel.
Because Anglada did not advise him that a guilty plea could result
in a sentence within a range of 108 to 135 months imprisonment
instead of the 87 to 108 months reflected in his plea agreement,
Moreno claimed that he did not understand the consequences of
pleading guilty. In addition, Moreno's motion alleged that Anglada
failed to communicate to him that he had the right to withdraw his
plea before sentencing if he believed he had a "fair and just
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reason" to do so, or risk bearing a greater burden on appeal to
this Court. See Fed. R. Crim. P. 11(d)(2)(B); United States v.
Delgado-Hernández, 420 F.3d 16, 19 (1st Cir. 2005) (noting
defendant's claim "subject only to plain error review on direct
appeal" where defendant "failed to call the district court's
attention to the alleged errors in the plea proceedings"); see also
United States v. Mercedes-Mercedes,
428 F.3d 355, 359 (1st Cir.
2005) ("The barriers to withdrawal of a guilty plea become more
formidable when . . . the request is not made until after sentence
has been imposed.").
The district court denied Moreno's § 2255 petition,
dismissing it with prejudice on June 8, 2010. Moreno-Espada v.
United States, No. 09-1848CCC, 2010 WL 2404444 (D.P.R. June 8,
2010). The district court concluded that even if deficient
representation was assumed under the first prong of the ineffective
assistance of counsel test prescribed by Strickland v. Washington,
466 U.S. 668 (1984), Moreno still could not show that he was
prejudiced by Anglada's performance, in large part because Moreno
was told during the plea colloquy that the district court was not
bound by the parties' plea agreement. This appeal followed.
II. Discussion
Under 28 U.S.C. § 2255, a convict in federal custody may
petition the sentencing court to "vacate, set aside, or correct his
sentence on the ground that the court had imposed the sentence in
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violation of federal law . . . ." Ellis v. United States, 313 F.3d
636, 641 (1st Cir. 2002). On appeal, "we review the district
court's legal determinations de novo and the court's findings of
fact for clear error." Parsley v. United States,
604 F.3d 667, 671
(1st Cir. 2010).
Moreno alleges that he received ineffective assistance of
counsel. This claim requires a court to first assess whether
"counsel's representation 'fell below an objective standard of
reasonableness.'" Padilla v. Kentucky, 130 S. Ct. 1473, 1482
(2010) (quoting
Strickland, 466 U.S. at 688). Second, we inquire
"whether there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different."
Id. (quoting Strickland, 466 U.S. at 694). In the
guilty plea context, this means Moreno has to demonstrate "a
reasonable probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to trial."
United States v. Colón-Torres,
382 F.3d 76, 86 (1st Cir. 2004)
(quoting Hill v. Lockhart,
474 U.S. 52, 59 (1985)).
A. Objectively Reasonable Performance by Counsel
The first inquiry is whether Anglada's performance fell
below the objective standard of reasonableness that can be expected
of proficient counsel. We have noted in the past that this
assessment must be a "fairly tolerant" one because "the
Constitution pledges to an accused an effective defense, not
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necessarily a perfect defense or a successful defense." Scarpa v.
Dubois, 38 F.3d 1, 8 (1st Cir. 1994).
We need not determine whether Anglada's conduct fell
below this tolerant standard for performance. As we explain below,
whether Anglada's conduct amounted to objectively unreasonable
advocacy or not, Moreno has failed to satisfy Strickland's
prejudice requirement. See Tevlin v. Spencer, 621 F.3d 59, 66 (1st
Cir. 2010) ("A defendant's failure to satisfy one prong of the
Strickland analysis obviates the need for a court to consider the
remaining prong."). However, to the extent we find it necessary to
comment on Anglada's performance, we note that if he has not fallen
through, he may nonetheless still be positioned on the thinnest of
ice. In failing to account for the 2-level sentence enhancement
that 21 U.S.C. § 860 prescribes, Anglada overlooked a weighty
sentencing factor clearly applicable to his client on the express
terms of the charging instrument. Though we need not determine
whether such an oversight rises to the level of objectively
deficient performance under Strickland, Anglada's advocacy for his
client on this particular issue in sentencing certainly left much
to be desired.
B. Whether Moreno was Prejudiced by Anglada's Performance
We conclude that Moreno has not demonstrated that he was
prejudiced by Anglada's conduct. In considering the merits of
Moreno's claim under the second prong of Strickland, we first note
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that Anglada's failure to properly calculate Moreno's sentence
exposure, by itself, does not amount to prejudice.4 See United
States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995), rev. on
other grounds,
520 U.S. 751 (1997) ("An attorney's inaccurate
prediction of his client's probable sentence, standing alone, will
not satisfy the prejudice prong of the ineffective assistance
test.").
Moreno contends that Anglada's conduct prejudiced him in
two ways. First, Moreno claims that Anglada's oversight regarding
4
Moreno points us to United States v. Alvarez-Tautimez, a Ninth
Circuit case where counsel's failure to move to withdraw the
defendant's guilty plea was determined to meet Strickland's
prejudice requisite. 160 F.3d 573 (9th Cir. 1998). Moreno's
reliance on Alvarez-Tautimez is misguided. In that case, counsel
learned that a co-defendant successfully moved to suppress certain
key evidence before the district court accepted his client's guilty
plea. The Ninth Circuit concluded that counsel's failure to
research and move to withdraw his client's plea constituted
ineffective assistance, largely because of the likelihood that a
motion to withdraw would have succeeded where the government's case
against his client depended on the same evidence as his co-
defendant's. See
id. at 577 (noting defendant "was prejudiced by
the denial of an opportunity to file a motion to withdraw a plea
which . . . would have been reasonably likely to succeed"). Here,
Moreno cannot point to any similar likelihood of success.
Moreover, Alvarez-Tautimez is also distinguishable from the
instant case because, at the time it was decided, applicable law in
the Ninth Circuit provided the defendant an absolute right to
withdraw a guilty plea prior to sentencing or before the district
court "accepted" such a plea. See id. ("[I]n mid-1994, at the time
of [counsel's] decision not to file a motion to withdraw Alvarez's
plea, there was clear precedent that a plea could be freely
withdrawn at any time before it was accepted by the district
court."). The same is not true here. See United States v. Negrón-
Narváez,
403 F.3d 33, 36 (1st Cir. 2003) ("It is well established
that a defendant does not have an absolute right to withdraw a
guilty plea.").
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the full extent of his sentence exposure denied him the opportunity
of arguing at the district court that he sought to withdraw his
guilty plea on the grounds that he was unaware of the consequences
of pleading guilty. Second, because "a motion to withdraw a guilty
plea brought before sentencing . . . is reviewed under a more
liberal standard than a motion filed after sentencing," United
States v. Laliberte, 25 F.3d 10, 13 (1st Cir. 1994), Moreno posits
that Anglada's misadvise prejudiced him by making it more difficult
to withdraw his guilty plea on direct appeal to this Court.
Moreno's arguments are unavailing because they fail to
establish that but for Anglada's conduct, Moreno would have
foregone a guilty plea and run the gauntlet of trial. See United
States v. Isom, 85 F.3d 831, 837 (1st Cir. 1996) ("[A] defendant
must show that . . . 'by [counsel's] inadequate performance,
Appellant was induced to enter guilty pleas which he otherwise
would not have entered.'" (quoting United States v. Austin, 948
F.2d 783, 786 (1st Cir. 1991))). Moreno's first attempt to
withdraw his guilty plea before the PSR showing his correct
sentence exposure was issued, upon which he perfunctorily relies as
evidence of his alleged intent to go to trial, does not settle the
matter in his favor. After the district court denied this motion,
the record shows that Moreno was made aware of the fact that he
actually faced a potentially harsher sentence and had repeated
opportunity to again move to withdraw his guilty plea before the
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district court held its sentencing hearing.5 Each time, Moreno
opted not to do so and instead proceed to sentencing. Most
notably, at the sentencing hearing held on November 14, 2006,
Moreno acknowledged that he understood the PSR and its contents
(which included the 2-level enhancement the parties overlooked in
their agreement) and affirmed that he wished the district court to
impose a sentence.6
Moreno's unsupported assertions that he would have
proceeded to trial if not for Anglada's allegedly inadequate
assistance are similarly ineffectual, and we find that the district
court did not err when it dismissed Moreno's § 2255 petition based
on the parties' filings. "A district court may dismiss a section
2255 petition without holding an evidentiary hearing if it plainly
appears on the face of the pleadings that the petitioner is not
entitled to the requested relief, or if the allegations . . .
consist of no more than conclusory prognostications and perfervid
rhetoric . . . ." LaBonte, 70 F.3d at 1412-13. Moreno did not so
5
Anglada submitted an affidavit which declares, inter alia, that
(1) once he became aware of the parties' oversight as to Moreno's
sentence exposure, he informed his client of this fact but (2) did
not discuss with him in "substantial length the fact that he could
ask the Court to allow him to withdraw the plea before the sentence
was imposed thus providing a lesser burden." We note that Moreno
overstates matters when he avers, based on this second statement,
that Anglada wholly "failed to advise him of his right to withdraw
the guilty plea . . . ."
6
Moreno did, however, state that he would like to "be given the
87 months" in the plea agreement, adding that he "was not told
about any additional time."
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much as file sworn statements or affidavits to support his
contention that but for Anglada's conduct he would have sought
trial, and has instead buttressed his case on groundless
affirmations that evidence in the record bears out his claim of
prejudice. We have rejected such bare averments in the past and do
so again today, as such "self-serving statement[s] . . .
unaccompanied by either a claim of innocence or the articulation of
any plausible defense that [] could have [been] raised had [a
defendant] opted for a trial, [are] insufficient to demonstrate the
required prejudice" under Strickland.7 Id. at 1413.
Working within the four corners of Moreno's brief to this
Court, we also find statements that subvert Moreno's claim that he
would have taken his chances at trial if he had been permitted to
withdraw his guilty plea before sentencing. For example, noting
that co-defendants who pled after him received less severe
sentences, Moreno reasons that the record suggests that "had . . .
trial counsel [] asked the Court to withdraw the plea a better plea
could have been renegotiated." Further, claiming the government's
7
To the extent Moreno does offer a glimpse into defenses he could
or would have raised at trial, Moreno just states that the
government's "evidence against him was weak and is weak." We
simply note, as the district court did, that in considering
Moreno's direct appeal we saw matters differently and underscored
that "[e]very indication is that the evidence against [Moreno and
his two co-defendants] was formidable, and that disclosure of their
greater sentencing exposures would have dissuaded none of them from
taking the plea deals offered by the government." Moreno-Espada,
No. 06-2759, slip op. at 2 (1st Cir. Sept. 17, 2008) (unpublished
opinion).
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evidence against him was flimsy, Moreno posits that if he "had
requested the withdrawal of the plea he could have [] received a
more lenient sentence . . . ." Finally, Moreno's brief to this
Court attempts to clarify that references to the possibility of
negotiating a more lenient sentence do "not mean that [Moreno]
would have opted to go to trial, and that he will not do so, if
given the chance. [Moreno] was willing to go to trial, and will go
to trial, unless a favorable agreement is reached."
These affirmations betray that what truly drives Moreno's
appeal may be the fact that he received a more onerous sentence
than the 87 months imprisonment he was perhaps led to anticipate.
The sentence of 108 months imprisonment that the district court
ultimately imposed, however, was always within the range of
possible sentences Moreno could receive under his plea agreement
and was significantly less severe than the 40-year statutory
maximum to which Moreno thought he exposed himself by pleading
guilty. In any case, it is well settled that post-sentencing
"buyer's remorse" is not a valid basis on which to dissolve a plea
agreement and "the fact that a defendant finds himself faced with
a stiffer sentence than he had anticipated is not a fair and just
reason for abandoning a guilty plea." Mercedes-Mercedes, 428 F.3d
at 359 (quoting United States v. Torres-Rosa,
209 F.3d 4, 9 (1st
Cir. 2000)); see also Miranda-González v. United States,
181 F.3d
164, 165 (1st Cir. 1999) ("A guilty plea will not be set aside
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where a defendant has had a change of heart simply because he now
believes the case against him has become weaker or because he is
not satisfied with the sentence he has received.").
C. On Government's Failure to Properly Calculate Moreno's Sentence
Exposure
Having concluded that the district court correctly denied
Moreno's § 2255 petition to vacate, set aside, or correct his
sentence, we do not believe our work is done. Examining the
record, we are compelled to comment further on the patent missteps
that blemished Moreno's plea proceedings. While our decision today
required us to appraise Anglada's performance, we cannot ignore
that the government's attorneys similarly overlooked a sentence
enhancement that was evident from the face of the indictment when
they ratified Moreno's plea agreement. We are equally cognizant
that this is not the only recent example of a case prosecuted by
the same office of the United States Attorney to arrive at this
Court's doorstep in which the government has entered into a plea
agreement that incorrectly disclosed or otherwise failed to impart
a defendant's true sentencing exposure. See, e.g., United States
v. Ortiz-García, No. 10-2323, 2011 WL 6061352 (1st Cir. Dec. 7,
2011).
We take this opportunity to stress that such neglectful
lapses are not just grist for the mill of appeal, they also chip
away at the essential "presumption that prosecutors can be relied
on to perform their official duties properly." Ferrara v. United
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States, 456 F.3d 278, 293 (1st Cir. 2006). Few contexts exist in
which this presumption of prosecutorial good faith seems as
necessary as when the government secures a defendant's guilty plea.
Because a defendant who pleads guilty inescapably waives a number
of fundamental constitutional rights, we have warned that "the
government is required to meet 'the most meticulous standards of
both promise and performance'" when it enters a plea agreement,
United States v. Gonczy,
357 F.3d 50, 53 (1st Cir. 2004) (quoting
United States v. Riggs,
287 F.3d 221, 224 (1st Cir. 2002)), and
have articulated a government-held "duty to bring all facts
relevant to sentencing to the judge's attention,"
id. We trust
that prosecutors in this Circuit will be mindful of these
responsibilities when discharging their duties and take no pleasure
in calling them to their attention when they fail to do so.
III. Conclusion
For the foregoing reasons, we affirm the district court's
order denying Moreno's petition to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255.
Affirmed.
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