FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Movant is a federal prisoner, proceeding through counsel, with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Movant challenges his 2014 convictions for conspiracy to knowingly and intentionally distribute over 500 grams of methamphetamine (21 U.S.C. § 846, 841 (a)(1) [count one]) and use of a communication facility to facilitate drug trafficking (21 U.S.C. § 843 (b) [count six]). He is serving a total sentence of 262 months.

As stated in the motion filed June 20, 2016, movant challenges his convictions on the following grounds: (1) ineffective assistance of trial counsel concerning pre-plea proceedings; (2) ineffective assistance of counsel at change of plea hearing; (3) ineffective assistance of counsel during sentencing proceedings; and (4) ineffective assistance of Spanish language interpreter. For the reasons stated herein, the undersigned recommends that movant's motion be denied.

II. Factual Background1

As to Jose Mario Medrano

(ECF No. 191 at 6-7.)

III. Legal Standards

A federal prisoner making a collateral attack against the validity of his or her conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255, filed in the court that imposed sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the federal sentencing court may grant relief if it concludes that the prisoner was sentenced in violation of the Constitution or laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999) (citing 28 U.S.C. § 2255). Relief is warranted only where a movant has shown "a fundamental defect which inherently results in a complete miscarriage of justice. . . ." Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)).

IV. Discussion

Preliminary Consideration

For purposes of clarity, movant filed the underlying motion pro se. (ECF No. 282.) On November 22, 2016, the undersigned issued an order appointing the federal defender to represent movant. (ECF No. 292.) On November 28, 2016, an order regarding substitution of attorneys, wherein attorney Michael Bigelow was substituted as movant's counsel after the federal defender declared a conflict, was executed. (ECF No. 294.) The government then filed its opposition to movant's motion (ECF No. 316), and movant, represented by counsel, filed a traverse in reply (ECF No 337). The undersigned's references to movant's arguments or contentions may be to those asserted in the original (unrepresented) motion, those asserted in the traverse (represented), or both.

Waiver

The government complains that movant has waived his right to present certain pre-plea challenges because he waived his rights by pleading guilty to counts one and six.

"[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267 (1973). When a criminal defendant pleads guilty, "he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 771 (1970)]." Tollett, 411 U.S. at 267. Generally, then, a habeas petitioner who has pled guilty or no contest can challenge only the voluntary and intelligent nature of the plea by showing that the advice he received from counsel was constitutionally ineffective. Id., at 266-67; United States v. Broce, 488 U.S. 563, 569 (1989); Hill v. Lockhart, 474 U.S. 52, 56 (1985); McMann v. Richardson, 397 U.S. at 771; Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985).

In this case, liberally construing the original motion (Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), leads the undersigned to construe movant's pre-plea claims to challenge the voluntary and intelligent nature of his guilty pleas. As a result, those claims are not barred from review.

Voluntariness of Plea

Movant generally challenges the voluntariness of his guilty pleas.

"A habeas petitioner bears the burden of establishing that his guilty plea was not voluntary and knowing." Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir. 2006). To determine the voluntariness of a plea, the court must "look to the totality of the circumstances, examining both the defendant's `subjective state of mind' and the `constitutional acceptability of the external forces inducing the guilty plea.'" Doe v. Woodford, 508 F.3d 563, 570 (9th Cir. 2007) (quoting Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986)).

Here, during the colloquy at the change of plea hearing, movant was advised that the maximum potential sentence was life in prison (ECF No. 217 at 7:21) and he acknowledged the following: that he understood the elements involved in the crimes to which he was pleading guilty (id. at 11:1-20); that he understood he was giving up certain constitutional rights identified by the court by pleading guilty (id. at 10:3-18); that he discussed with his attorney how the United States Sentencing Guidelines (USSG) and sentencing laws might apply to his case (id. at 8:12-22); that the sentence imposed may differ from any estimate he had discussed with his attorney (id. at 9:3-16); that in some instances the court could impose a sentence greater than or less than the sentencing guidelines (id. at 9:17-22); that he agreed with the factual bases orally represented in the proceeding (id. at 11:21-13:10); that he understood his plea might affect his immigration status (id. at 6:10-21); and that he was satisfied with his counsel's representation (id. at 6:1-4). The court concluded that the plea was knowing and voluntary. (Id. at 14:2-9.)

"Findings made by the judge accepting the plea `constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity'" Doe, 508 F.3d at 571 (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Therefore, movant's statements at his plea hearing "properly constitute an `imposing' barrier to collateral attack." Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986).

Movant cannot overcome the "strong presumption of verity" the undersigned must accord to the statements made to and acknowledged by movant during his plea hearing: nothing in the plea colloquy indicates his pleas were involuntary or unknowing. Given the circumstances, the undersigned finds movant's plea was voluntary and knowing. Doe, 508 F.3d at 570. Nevertheless, the undersigned will address movant's specific allegations that counsel provided ineffective assistance of counsel.

Ineffective Assistance of Trial Counsel — The Applicable Standard

The Sixth Amendment standard for analyzing an ineffective assistance of counsel claim is well established. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that his trial counsel's performance "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

Under the first prong of the Strickland test, a petitioner must show that counsel's conduct failed to meet an objective standard of reasonableness. Strickland, 466 U.S. at 687. There is "a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). A petitioner must rebut this presumption by demonstrating that his counsel's performance was unreasonable under prevailing professional norms and was not the product of "sound trial strategy." Strickland, 466 U.S. at 688-89. Judicial scrutiny of defense counsel's performance is "highly deferential," and thus the court must evaluate counsel's conduct from her perspective at the time it occurred, without the benefit of hindsight. Id. at 689.

The second prong of the Strickland test requires a petitioner to show that counsel's conduct prejudiced him. Strickland, 466 U.S. at 691-92. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one "`sufficient to undermine confidence in the outcome.'" Summerlin v. Schriro, 427 F.3d 623, 640 (9th Cir. 2005) (quoting Strickland, 466 U.S. at 693). "This does not require a showing that counsel's actions `more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters `only in the rarest case.'" Richter, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 693). "The likelihood of a different result must be substantial, not just conceivable." Id. And more particularly in a case involving an ineffective assistance of counsel claim allegedly resulting in a plea of guilty, movant must show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Lockhart v. Hill, 474 U.S. at 59.

Ineffective Assistance of Trial Counsel — Pre-Plea Allegations

Movant claims counsel provided ineffective assistance of counsel prior to his pleas of guilty as addressed below.

Failure to Investigate & Failure to Challenge Indictment

Movant complains that "[t]he record and court files of this case proves counsel failed to conduct adequate pre trial investigations." (ECF No. 282 at 9.) More specifically, he contends counsel should have "assure[d] the prosecution produced finger-print" and "voice recognition" analyses and failed to "assure the prosecution adequately presented the charge(s) in the indictment." (Id. at 10.)

First, because the government is not required to submit illegal narcotics or weapons to fingerprint analysis, or recordings to voice recognition analysis, defense counsel cannot be faulted for failing to "assure the prosecution produced" such testing.

Further, it is mere speculation to assert that had counsel had the weapons analyzed for fingerprints, or the recorded telephone conversations subjected to voice recognition analysis, that movant would have been able to argue those findings to his advantage. (ECF No. 337 at 15-16.) As explained below, actual possession of the weapon by movant was not required to enhance his sentence. With regard to the phone calls, the PSR indicates "numerous phone calls between Garcia-Guillen and movant" were had, and that in particular, on March 22, 2010, the two "discussed methamphetamine during a long, detailed call." (ECF No. 191 at 7.) During sentencing proceedings, the government indicated that wiretaps also indicated movant was "working to obtain a 50-caliber rifle for use in Mexico" (ECF No. 220 at 13) and additional calls between movant and Garcia-Guillen, Gato DTO's leader, as movant was released from state custody were possible (id. at 14 ["I think there were some calls, some jail calls between the defendant and Garcia Guillen on his way out of custody in that case, if I recall correctly"]).

It is entirely possible that following his investigation and review of the discovery in this matter, counsel for movant strategically opted not to seek a voice recognition analysis where doing so may have meant the government might elect to amend the indictment to charge something more against movant on the basis of another call, one of dozens if not hundreds obtained during the course of the investigation. Counsel received three discs containing the phone calls recorded during the investigation as a part of the government's discovery; it is reasonable to assume he may even have recognized his client's voice on some of those calls. Counsel's performance in any event was not unreasonable. Strickland, 466 U.S. at 688-89. Furthermore, counsel is not required to file frivolous motions on behalf of his or her client. See Tollett v. Henderson, 411 U.S. at 267 (counsel is under no obligation to make frivolous motions or advise a defendant of every conceivable constitutional attack he might mount). And, "[l]itigation tactics are decisions generally left to defense counsel." United States v. Smith, 282 F.3d 758, 763 (9th Cir. 2002). The record reveals that defense counsel investigated (discussed in greater detail below) and made reasonable tactical decisions based upon that investigation. Movant is not entitled to relief. Davis v. United States, 417 U.S. at 346.

Movant also claims counsel was ineffective for failing to challenge the indictment: "to assure the prosecution adequately presented the charge(s)" and "to make sure the alleged co-defendant(s) were all equally charged, and sentenced. . . ." (ECF No. 282 at 10.)

There was no basis upon which to challenge the sufficiency of the indictment here. In count one of the indictment, movant was alleged to have conspired with others to distribute methamphetamine. Specifically, he was alleged to have violated 21 U.S.C. §§ 846 and 841(a)(1). Title 21 U.S.C. § 846 provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 841(a)(1) states, in relevant part, "it shall be unlawful for any person knowingly or intentionally— . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."

Movant's argument fails because possession of a firearm is not an element of any of the offenses to which he pled guilty. Therefore, it need not be alleged in the indictment. "An indictment must set forth each element of the crime that it charges. [Citation.] But it need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime." Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998). See, e.g., Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) ("`Elements' are the `constituent parts' of a crime's legal definition—the things the `prosecution must prove to sustain a conviction.' Black's Law Dictionary 634 (10th ed. 2014). At a trial, the elements are what the jury must find beyond a reasonable doubt to convict the defendant [citation]; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty [citation]. Facts, by contrast, are mere real-world things—extraneous to the crime's legal requirements. (We have sometimes called them `brute facts' when distinguishing them from elements. [Citation.].) They are `circumstance[s]' or `event[s]' having no `legal effect [or] consequence': In particular, they need neither be found by a jury nor admitted by a defendant. Black's Law Dictionary 709").

In the traverse, movant claims counsel was ineffective for failing to challenge the indictment and for failing to "move to preclude the government's argument that the weapon . . . found in the vehicle was movant's before advising him regarding entering into an open plea of guilty." (ECF No. 337 at 11.) Additionally, he broadly complains his plea was "involuntary and unintelligent" because he "received nothing in exchange for his plea." (Id. at 11.)

Movant's claims are unavailing. If, as movant asserts, "it is impossible to conclude that trial counsel consciously chose not to file a motion to challeng[e] the indictment," then likewise, movant cannot properly presume counsel failed to research, prepare for or litigate the issue. It is mere speculation on movant's part to claim counsel had no basis for that decision. Judicial review of an attorney's performance under Strickland must ordinarily be "highly deferential" and incorporate a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance which, under the circumstances, might be considered sound trial strategy." United States v. Span, 75 F.3d 1383, 1387 (9th Cir. 1996). Movant's speculation does not operate to overcome Strickland's strong presumption.

Speculation continues where movant contends that had a motion been presented, "it would have established then that the government's argument was overstated and relied on pure unadulterated speculation. Had the motion been made pre-plea it could not have but provided some benefit to movant." (ECF No. 337 at 12.) Movant provides no record citation whatsoever to support his assertion that "the government's argument was overstated" or that it "relied on pure unadulterated speculation." James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Other than his bald assertion, there is no basis to believe the government's position that movant constructively possessed a weapon was "overstated" or "unadulterated."

As to defense counsel's efforts, Mr. Scoble was appointed on April 21, 2011, upon movant's arraignment on the charges alleged in the indictment. (ECF No. 36.) In a June 2011 stipulation to continue a status conference to which counsel for movant agreed (and in several stipulations subsequent thereto), it was noted there were "5,000 pages of discovery as well as three discs of recorded phone calls" provided by the government. (ECF No. 53 at 2; see also ECF Nos. 59, 62, 64, 67 & 69 [same].) In July 2012, Mr. Scoble thereafter sought to continue the status conference, preparing a stipulation joined by multiple parties, wherein it was stipulated that the continuance would "allow defense counsel additional time to review discovery with the defendant, to examine possible defenses and to continue investigating the facts of the case" and that the "requested continuance was necessary to provide defense counsel reasonable time necessary for effective preparation. . . ." (ECF Nos. 77 & 78 at 1-2, emphasis added.) Further, in another July 2012 stipulation to which counsel for movant agreed, it was additionally asserted that a continuance was necessary to "review the discovery; review investigation reports; discuss USSG calculations with defendants; and, review proposed plea agreements." (ECF No. 82 at 2.) The status conference was continued several more times on that same basis. (See ECF Nos. 94, 98, 101, 115, 121 & 129.) In a stipulation dated May 3, 2013, Mr. Scoble further asserted the following: "The reason for this continuance is to allow defense counsel additional time to review discovery with the defendant, to examine possible defenses and to continue investigating the facts of the case. Defendant Jose Medrano and his attorney have been in negotiations with the government and are close to reaching an agreement." (ECF No. 135 at 1-2; see also ECF No. 136 at 1, emphasis added.)

Thereafter, the district court conducted four status conferences prior to the entry of movant's guilty pleas of August 2013. (ECF Nos. 142, 144, 147 & 150.) More particularly, on May 14, 2013, the government's attorney noted a continuance was necessary because the "defendant needs time to look at a proposed Factual Basis which Mr. Scoble and I have been working on through last week." (ECF No. 214 at 3.) Mr. Scoble agreed with this assertion. (Id. at 4.) At the May 21, 2013, status conference, the following colloquy occurred:

(ECF No. 215 at 3-4.) At the change of plea hearing, the government asserted, and movant agreed following review of the evidence provided by the government, that there existed a factual basis for his plea to counts one and six. (ECF No. 217 at 11-12.)

The foregoing establishes that movant's assertions that counsel was ineffective for failing to conduct an adequate investigation and/or to consider defenses to the government's discovery — which would include any challenge to the indictment — prior to entering movant's plea are nothing more than bald assertions. The record reveals counsel investigated, researched the issues and discussed them with his client. Hence, counsel's performance was not unreasonable, and movant has failed to meet his heavy burden. Strickland, 466 U.S. at 688-89; Richter, 562 U.S. at 104. Additionally, movant has not demonstrated prejudice. He has made no showing whatsoever that, but for counsel's alleged errors, he would not have pled guilty and instead would have proceeded to trial. Hill v. Lockhart, 474 U.S. at 59.

Ineffective Assistance of Counsel — Change of Plea Proceedings

Here, movant broadly complains that counsel provided ineffective assistance because he failed "to assure the petitioner understood what he was pleading guilty to." Movant also broadly complains he "cannot understand, read, write, nor speak English," before specifically arguing that counsel: (a) failed to inform him that "the charge(s) in his indictment never charged 21 U.S.C. § 841(b)(1)'s penalty provisions, which would enable the District Court to sentence below the mandatory minimum" as occurred when it sentenced "alleged co-defendant's to 70, and 80 months . . .;" (b) failed to inform movant he "had the right to be sentenced only on the charges in the indictment, and that by pleading guilty, the District Court will unconstitutionally enhance" the sentence "for firearms and other element(s) never charged by indictment;" and (c) failed to inform movant "that structural errors occur when a District Court adds element(s) of an offense," allowing for a sentence enhancement of 262 months. (ECF No. 282 at 11-12.) The government replies that movant has failed to substantiate his allegations by citing to facts, and that, in any event, counsel performed effectively, noting too that movant was assisted by a federally sworn interpreter. (ECF No. 316 at 16-17.)

A review of the record establishes that counsel did not provide ineffective assistance of counsel, despite movant's self-serving statements to the contrary.

First, as noted above, the record includes numerous references to defense counsel's efforts to explain the plea to movant prior to entry of the guilty pleas. (See ECF Nos. 82, 94, 98, 101, 115, 121, 129 [continuance granted to allow for discussion of "USSG calculations with defendants" and to "review proposed plea agreements"].) In early May 2013, counsel for movant declared: "Defendant Jose Medrano and his attorney have been in negotiations with the government and are close to reaching an agreement." (ECF No. 135 at 1-2; ECF No. 136 at 1.) A few weeks later, counsel for the government noted the need for a continuance because "defendant needs time to look at a proposed Factual Basis" that he and defense counsel had been working on; defense counsel agreed with the government's position. (ECF No. 214 at 3.) When the court conducted a status conference on May 21, 2013, defense counsel asked for additional time because he was unable to meet with movant to discuss the plea due to an interpreter calling in sick, noting that he needed "to go over it with him with the Spanish interpreter." (ECF No. 215 at 3-4.) Movant was present during the status conferences and was assisted by an interpreter. Had he felt counsel's various assertions were false, movant could have objected in some manner. Yet the record is silent.

Second, a review of the change plea hearing transcript confirms the government's position that "counsel, as well as the court, took great effort to ensure that Medrano understood the charges to which he was pleading guilty, as well as the sentencing process and potential penalties." (ECF No. 316 at 17.) Movant affirmed he was satisfied with counsel's representation and advice. (ECF No. 217 at 6.) The maximum penalties for each count were noted on the record, to wit: life in prison for count one and four years for count six. (ECF No. 217 at 7-8.) Immediately thereafter, the following colloquy occurred:

(ECF No. 217 at 8.) Defense counsel was then asked whether he believed his client understood "how the guidelines and statutory sentencing factors might apply to his case" (id. at 8) and defense counsel replied, "We have discussed it at great length, Your Honor. I believe he very well understands it." (Id. at 9.) The court then cautioned movant as follows:

(ECF No. 217 at 9.) Movant responded affirmatively. (Id. at 9.) The court went on to acknowledge movant's "reserving [his] right to appeal" (id. at 10) before enumerating the constitutional rights movant was waiving by his plea (id. at 10), reciting the elements of the crimes (id. at 11) and factual bases for each count (id. at 12-13), before accepting movant's guilty pleas (id. at 13-14). At no time, despite being expressly advised he could do so (ECF No. 217 at 5), did movant interrupt and ask for clarification of anything stated or discussed.

In the traverse, movant contends counsel was ineffective for failing to object to "the deficient plea colloquy at which no mention was made that his sentence could be enhanced by the weapon allegation. . . ." (ECF No. 337 at 21-22.) The plea colloquy was not defective in any way. Movant was advised, pursuant to Federal Rules of Criminal Procedure Rule 11, that he faced a maximum penalty of life in prison pursuant to the offense charged in count one. (ECF No. 217 at 7 ["On Count 1, under the maximum penalties. These are the maximum penalties for these crimes, Mr. Medrano. [¶] On Count 1, the conspiracy charge, the maximum sentence provided by law is life in prison, and/or a $10 million fine, a supervised release term of from five years to life, and a $100 special assessment. That count also carries a 10-year mandatory minimum sentence"]; 21 U.S.C. § 841(b)(1)(A)(viii) ["such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life"].) He was advised the court would make its own determination regarding the applicability of the guidelines and sentencing factors, and that any recommendation regarding sentence as not binding on the court. (Id. at 9.) These advisements were sufficient. United States v. Littlejohn, 224 F.3d 960, 965 (9th Cir. 2000); United States v. Wills, 881 F.2d 823, 825 (9th Cir. 1989); Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988).

Simply put, counsel did not perform deficiently; he performed reasonably under prevailing professional norms. Strickland, 466 U.S. at 688-89. Neither has movant demonstrated prejudice. There is no reasonable probability that had defense counsel challenged the plea colloquy as defective, the result of the proceeding would have been different. Hill v. Lockhart, 474 U.S.at 59. Movant is not entitled to relief. Davis v. United States, 417 U.S. at 346.

Ineffective Assistance of Counsel — Sentencing Proceedings

In his grounds three and five, movant complains defense counsel was ineffective for failing to object to the firearm enhancement and for failing to address the sentencing disparities between he and his co-defendants. (ECF No. 282 at 12-13, 15-17.)2 The government responds that defense counsel did in fact object to the firearm enhancement, as well as raise the issue of sentencing disparities with the court, thus negating movant's claims of ineffective assistance of counsel. (ECF No. 316 at 18-20.) In his traverse, movant asserts counsel was ineffective for "failing to object to the deficient plea colloquy at which no mention was made that his sentence could be enhanced by the weapon allegation" (ECF No. 337 at 21) and that counsel "failed to effectively object to the PSR, sentencing enhancements and [movant's] very disparate sentence," claiming counsel "did little more than pay lip service to the facts" of the case (id. at 22-24).

Movant's assertion that "trial counsel offered not a single persuasive argument to refute the gross speculation [regarding possession of the gun] offered by the government" (ECF No. 337 at 14) ignores the record in this case. In a sentencing memorandum filed March 24, 2014, counsel argued "[t]he evidence as set forth in the PSR" was "insufficient to support application" of the § 2D1.1(b)(1) enhancement. (ECF No. 198 at 2-4.) More particularly, counsel asserted there was "nothing in the PSR, and nothing in discovery, to indicate" movant "knew of the gun's presence in a hidden compartment in a vehicle that did not belong to him." (Id. at 3.) Counsel contended there was an insufficient evidence of constructive possession or the exercise of dominion and control and cited Ninth Circuit legal authority for his positions. (Id. at 3.) The government opposed movant's position on the issue in their memorandum of April 3, 2014. (ECF No. 199 at 2-3.)

At the sentencing hearing of April 8, 2014, counsel submitted the issue on the memoranda (ECF No. 220 at 6) and the district court ruled as follows:

Additionally, under Sentencing Guideline 1B1.3(a)(1)(B):

(ECF No. 220 at 6-9.)

In United States v. Ortiz, 362 F.3d 1274 (9th Cir. 2004), the defendant was indicted for "conspiracy to distribute methamphetamine, drug possession-distribution, and misprision of felony, all in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)." Id. at 1276. Following conviction after jury trial, the district court adopted the findings of the PSR, adjusted Ortiz's offense level upward pursuant to "USSG § 3B1.1(a) for being an organizer or leader of criminal activity involving at least nine participants," and sentenced defendant to 360 months in prison. Id. at 1276. Ortiz argued on appeal that the district court improperly applied USSG § 2D1.1(b)(1) to increase his offense level where a co-conspirator displayed a firearm during a drug delivery. The Ninth Circuit held that it did "not matter that Ortiz was not personally present when the firearm was used, so long as its use was reasonably foreseeable and furthered jointly undertaken criminal activity." Id. at 1278.

Applying the requirements of reasonable foreseeability and furthering jointly undertaken criminal activity to the facts in this case, the undersigned finds no error. Movant was directly linked to the transportation of methamphetamine on the occasion wherein the loaded firearm was found in the altered vehicle driven by his girlfriend. As the result of a years-long investigation into the Gato DTO, authorities learned in September 2010 that a member of the Gato DTO was headed to Southern California to pick up a load of methamphetamine from the Alvarado DTO. Movant was identified as that transporter. Thereafter, on September 28, 2010, authorities conducted a traffic stop wherein a search of the vehicle in which movant was a passenger revealed 6.92 kilograms of methamphetamine and a loaded 9mm handgun in two hidden compartments. A later search of a home wherein movant rented a room revealed 4.5 pounds of methamphetamine, more than $20,000 in cash, firearms, ammunition and other evidence of drug trafficking, although the court did not rely upon the firearms found in that search for its findings. Movant knowingly participated in a large-scale drug conspiracy with ties to Mexico. He had regular contact with the head of the Gato DTO, Jose Alfredo Garcia-Guillen, and was known to be a "sub-dealer and transporter for the Gato DTO." Here, it is reasonably foreseeable that movant had knowledge of the loaded firearm found alongside the methamphetamine he was known to be transporting from Southern California to Sacramento as a sub-dealer and transporter for the Gato DTO. There is thus "a sufficient connection between the defendant and the contraband to support the inference" that movant had constructive possession of the gun. See United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986); United States v. Cousins, 427 F.2d 382, 384 (9th Cir. 1970) ("The circumstances of each case must be examined to determine if there is `such a nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant's dominion ad control as if it were actual possession.' [Citation.]").

Movant was a significant player in the Gato DTO. He had regular contact with others in the organization, including its leader, and was a known sub-dealer and transporter. The organization was the subject of a years-long investigation by the Drug Enforcement Administration and other local authorities. For those reasons, this case is distinguishable from United States v. Kelso, upon which movant relies. In Kelso, on the occasion of his arrest Kelso advised investigators that he had "agreed to provide a buyer for the drugs and to accompany [co-defendant] Muro-Torres to the sale, in exchange for return of title to his truck which, [he claimed], was transferred to Muro-Torres while [Kelso] was incarcerated;" he admitted knowledge of the drugs but "steadfastly denied knowledge of the weapon." United States v. Kelso, 942 F.2d 680, 681 (9th Cir. 1991). Nothing indicates Kelso was a regular sub-dealer or transporter for a drug trafficking organization. The facts in Kelso are readily distinguishable from the facts in this case.

In sum, defense counsel did not perform deficiently at sentencing. Strickland, 466 U.S. at 688-89. Further, movant cannot prevail on his claim for he has not demonstrated prejudice. Id. at 690-94.

The record clearly reveals counsel raised the issue of the propriety of applying the firearm enhancement several times: in his informal objections to the PSR (ECF No. 179-1), in his sentencing memorandum (ECF No. 198 at 2-4), and during the sentencing hearing (ECF No. 220 at 4). Plainly then, counsel cannot be said to have performed deficiently as originally argued by movant where he did in fact object to the firearm enhancement. In his traverse, movant complains that counsel did not effectively object to the enhancement, broadly asserting defense counsel "did little more than pay lip service to the facts." The undersigned disagrees. Simply because counsel was not successful in persuading the court to his position does not make him ineffective. The record supports a finding that counsel did not perform deficiently, nor did movant suffer prejudice as a result of any deficiency. Strickland, 466 U.S. at 688-94. This record also clearly reveals counsel raised the issue of disparate sentences as between movant and his co-defendants: in his informal objections to the PSR (ECF No. 179-1) and in his sentencing memorandum (ECF No. 198 at 4-5). When the issue arose during the sentencing hearing, the district court addressed its concerns to the government after acknowledging, and obviously giving some credence to, defense counsel's argument concerning sentence disparities:

(ECF No. 220 at 10-13.) The prosecutor further identified the ways in which movant was distinguished from others involved in the conspiracy (id. at 13-16), and when asked by the district court whether he saw "262 [months] as, in any way, a concern in terms of 3553 sentencing disparities," the prosecutor responded that he did not. (Id. at 16.)

Defense counsel responded to the government's position at the hearing:

(ECF No. 220 at 19-21.) Ultimately, the district court was persuaded by those facts that distinguished movant from co-defendant Caspillo and Tulysewski:

(ECF No. 220 at 26.) Simply put, movant's assertion of his "narrow participation in the offense" is not supported by this record. Given defense counsel's efforts as described above, the undersigned finds counsel performed reasonably and within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 688-89. And, even assuming a deficiency, movant has not demonstrated prejudice. Movant has not shown there is a reasonable probability that had defense counsel done more at the sentencing hearing to challenge the PSR and/or the court's application of the firearm enhancement that the result of the proceeding would have been different. Id. at 690-94.

Ineffective Assistance — Court Interpreter

In this claim, movant asserts a violation of the Court Interpreter's Act, 28 U.S.C. §§ 1827-1828 because he "never understood the charges in his indictment," "the interpreter failed to properly translate . . . he would receive sentencing enhancements on charges never presented in the indictment," and that "the interpreter failed to translate . . . that the District Court would enhance his sentence. . . ." (ECF No. 282 at 14-15.)

Regarding movant's broad claim of an inability to understand, read, write or speak English as that relates to his ineffective assistance of counsel claims or any other claim, the undersigned notes that movant was always assisted by a certified federal court interpreter. (See ECF Nos. 36, 41, 60, 73, 142, 144, 147, 150, 158, 202, 213-215, 217, 220.) See also United States v. Si, 333 F.3d 1041, 1043, n.3 (9th Cir. 2003) (the United States Supreme Court has not yet recognized a constitutional right to a court-appointed interpreter); United States v. Lim, 794 F.2d 469, 470-71 (9th Cir. 1986) (the Ninth Circuit has held that a defendant whose fluency in English is so severely impaired as to inhibit comprehension of the proceedings and/or interfere with the exercise of his constitutional rights has a constitutional right to an interpreter). Additionally, defense counsel employed a Spanish language interpreter when communicating with movant. (See e.g., ECF No. 215 at 3.) At no time, however, did movant ever indicate any translation being provided was inaccurate, or object in any way whatsoever. Thus, the undersigned rejects movant's argument in this regard. See United States v. Lim, 794 F.2d at 471 (Ninth Circuit rejected a contention that the defendant's Sixth Amendment rights had been violated due to inadequate translation, noting the absence of any objection to translation).

Additionally, the undersigned notes that some federal courts have recognized a presumption of regularity in court interpreter official duty. See Michel v. United States, 849 F.Supp.2d 649, 656 (W.D. Virg. Mar. 28, 2012); Hou v. Walker, No. CV 96 1365, 1996 WL 684442, at *3 (E.D.N.Y. Nov. 20, 1996) (quoting People v. Bicet, 180 A.D.2d 692, 580 N.Y.S.2d 55, 56 (1992); Clervil v. McNeil, No. 08-20144-CIV, 2008 WL 4753575, at *12 (S.D.Fla. Oct. 28, 2008) (citing Hou, 1996 WL 684442, at *3). If the undersigned were to apply such a presumption here, the court would conclude Petitioner has failed to rebut the presumption regarding any interpreter who assisted movant, for he has failed to specifically identify any inaccuracy whatsoever. Broad assertions such as a failure "to properly translate documents, as well as the change of plea colloquy" (ECF No. 337 at 20) are insufficient. For that same reason, an evidentiary hearing (id. at 20-21) would be nothing more than an improper fishing expedition. Habeas petitioners may not "use federal discovery for fishing expeditions to investigate mere speculation." Calderon v. U.S. Dist. Court, 98 F.3d 1102, 1106 (9th Cir. 1996); see also, Kemp v. Ryan, 638 F.3d 1245, 1260 (9th Cir. 2011); Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999).

Movant's claim concerning any inadequacy by any court interpreter is wholly unsupported on this record and should be denied. Davis v. United States, 417 U.S. at 346. To the degree movant is complaining counsel was ineffective in some way related to the interpreter's translation, there is nothing in the record to indicate defense counsel was made aware of some allegation of inadequacy. Counsel cannot be ineffective where he had no knowledge of a problem. Hence, there is no deficient performance, and movant makes no showing of prejudice in this regard. Strickland, 466 U.S. at 688-694.

IT IS HEREBY RECOMMENDED that:

1. Movant's June 20, 2016, motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 be denied; and

2. The Clerk of the Court be directed to close the companion civil case No. 2:16-cv-01384-JAM-KJN.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If movant files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).