MARIANNE B. BOWLER, Magistrate Judge.
Pending before this court is a pro se motion filed by defendant Miguel Aguilar ("defendant") to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 ("section 2255"). (Docket Entry # 497). The United States of America ("the government") filed an opposition (Docket Entry # 527) and defendant submitted a reply to the government's opposition. (Docket Entry # 528). The matter is therefore ripe for review.
Defendant raises two grounds for vacating the conviction and sentence. The first ground is an allegation of ineffective assistance of counsel in violation of defendant's Sixth Amendment rights. Defendant argues that trial counsel was ineffective because: (1) trial counsel did not "properly explain [to defendant] the extent of the Safety Valve provision and the difference vis-à-vis a proffer session upon a cooperation agreement"; (2) trial counsel failed to argue that defendant satisfied safety valve requirements; and (3) trial counsel failed "[t]o request a mitigating role in the charged offense." (Docket Entry ## 497, 511). Although not in the section 2255 motion itself, defendant asserts in the supporting memorandum a second ground for vacating the conviction and sentence on the basis that "the plea agreement was not made voluntarily, knowngly, [sic] and intelligently." (Docket Entry # 511, p. 10). Ultimately, defendant requests the section 2255 motion be granted and his sentence vacated.
On January 16, 2014, a grand jury sitting in the United States District Court for the District of Massachusetts issued a Superseding Indictment charging defendant with: (1) conspiracy to possess with intent to distribute and to distribute cocaine and heroin in violation of 21 U.S.C. § 846 ("Count I"); and (2) possession with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 841 ("Count II"). (Docket Entry # 193). In the absence of death or serious bodily injury, these charges carry a statutory range of imprisonment of not less than ten years and not more than life.
On June 4, 2015, defendant entered into a binding plea ("the plea agreement") with the government pursuant to Fed. R. Crim. P. 11(c) (1) (C). (Docket Entry # 392). Under the agreement, defendant agreed to plead guilty to: (1) conspiracy to possess with intent to distribute and to distribute cocaine and heroin in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 841(a) (1). (Docket Entry # 392). The parties agreed in the plea agreement that defendant's "base offense level is 34, because the equivalent of at least fifty kilograms of cocaine but less than 150 kilograms of cocaine are attributable to him." (Docket Entry # 392). The plea agreement notes that, "based on defendant's prompt acceptance of personal responsibility for these offenses of conviction in this case, the adjusted offense level is reduced by three." (Docket Entry # 392).
The plea agreement sets forth that "the U.S. Attorney and Defendant agree that . . . incarceration for a period of time not less than 87 months and not more than 120 months" is "a reasonable and appropriate disposition of this case." (Docket Entry # 392). Further, it states, "Defendant understands and acknowledges that, if the Court declines to apply USSG § 5C1.2 and 18 U.S.C. § 3553(f), Defendant will not receive an additional two-level reduction pursuant to USSG § 2D1.1(b) (17), but will receive a sentence at or above the statutory mandatory minimum term of years." (Docket Entry # 392). The plea agreement continues:
(Docket Entry # 392).
Defendant acknowledged in the plea agreement that "I have had this letter read to me in my native language in its entirety and discussed it with my attorney" and "I am satisfied with the legal representation provided to me by my attorney." (Docket Entry # 392). Defendant also attested: "I understand the crimes to which I have agreed to plead guilty, [and] the mandatory minimum and maximum penalties for those offenses"; that he and his attorney "have had sufficient time to meet and discuss my case"; and "I am entering into this Plea Agreement freely, voluntarily, and knowingly because . . . I believe this Plea Agreement is in my best interest." (Docket Entry # 392).
At defendant's Fed. R. Crim. P. 11 ("Rule 11") hearing on June 15, 2015, defendant answered, "Yes," when the court asked if he was "fully satisfied with the counsel, representation and advice given" by his trial counsel. (Docket Entry # 522). The government reiterated the terms of the plea agreement, again noting that, "if the safety valve were not met, 120 months would be the agreed-upon recommendation of the parties." (Docket Entry # 522, p. 8). Defendant answered, "Yes," when the court asked "are those the terms of your agreement with the Government, as you understand them?" (Docket Entry # 522, p. 9) .
According to the government, "in September, 2010, DEA Agents in Boston, Massachusetts, began an investigation into drug-trafficking and money-laundering activities of [a third party] and his criminal associates." (Docket Entry # 522, p. 13). The government attested in the Rule 11 hearing that if the matter had proceeded to trial, it would have "introduced competent evidence proving . . . beyond a reasonable doubt" that defendant "was a drug and money transporter for the . . organization and other drug distributors," that he "used his tractor trailer truck to transport cocaine and heroin from California to the east coast where it was received by [co-defendants] and others," and that he "received drug proceeds and transported them back to California for remission to drug suppliers in Mexico." (Docket Entry # 522, p. 13). The government stated that "on October of 19th, 2011, [defendant] delivered 40 kilograms of cocaine to [co-defendant] and received $570,000 in drug proceeds from him. Earlier that day, Agents had intercepted telephone calls between and among co-Defendants. . during which [a co-defendant] stated in lightly coded language that the drugs would arrive that day." (Docket Entry # 522, p. 14). Investigators "observed a male approach [defendant's] truck with a weighted black bag and get into the passenger's side of the cab. Shortly thereafter, the male exited the truck with a weighted red and black bag, which he put inside a Chevrolet Suburban." (Docket Entry # 522, p. 14). "Agents recovered 40 kilograms of cocaine from a red and black bag in the back seat of the Suburban." (Docket Entry # 522, p. 15). "Agents recovered $570,000 in cash, ten kilograms of cocaine and five kilograms of heroin from behind the panels of the interior walls of the [defendant's truck]." (Docket Entry # 522, p. 15). Defendant answered "No," when asked by the court "Do you disagree with anything that . . . the Government [says it] would be able to prove?" (Docket Entry # 522, p. 15). Thereafter, defendant pled guilty to both Count I and Count II. (Docket Entry # 522). The court conditionally accepted the plea agreement pending the court's receipt and review of a presentence report. (Docket Entry # 522).
At the sentencing hearing on September 9, 2015, the court reported that it received and reviewed the presentence report, the sentencing memorandum, and the attached reports. (Docket Entry # 457). When the court asked, "there are no objections to the presentence report; is that correct?[,]" trial counsel replied, "That's correct." (Docket Entry # 457). Defendant was given a three-level downward adjustment from an offense level 34 to an offense level of 31 for his prompt acceptance of responsibility. (Docket Entry # 457).
During the hearing, the court stated, "The Government contends that [defendant] is not so entitled [to a two-level downward adjustment under the safety valve provision] because he has not properly proffered to the Government and, therefore, does not qualify for the fifth element of the so-called section for being entitled to this adjustment."
(Docket Entry # 457).
Speaking to defendant, the court stated:
(Docket Entry # 457). Thereafter, the court sentenced defendant to a term of imprisonment of 120 months based on the general drug-trafficking provision in the U.S. Sentencing Guideline Manual ("the Guidelines"), section 2D1.1(b) (17). (Docket Entry # 457).
Under section 2255, post-conviction relief can be granted if a sentence: (1) violates the Constitution or laws of the United States; (2) is imposed by a court without jurisdiction; (3) exceeds the maximum penalty authorized by law; or (4) is otherwise subject to collateral attack.
A section 2255 petition is "not a surrogate for a direct appeal," and the burden of proof is on the moving party.
Defendant alleges that his trial counsel was ineffective because: (1) trial counsel failed to explain the safety valve; (2) trial counsel failed to adequately argue to the court that defendant satisfied the requirements of the safety valve; and (3) trial counsel failed to request a mitigating role in the charged offenses. (Docket Entry # 497).
It is well settled that "the [Sixth Amendment] right to counsel is the right to the effective assistance of counsel."
Under the deficiency prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment."
Under the prejudice prong, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Defendant first argues that trial counsel was ineffective because counsel did not "properly explain [to defendant] the extent of the Safety Valve provision and the difference vis-à-vis a proffer session upon a cooperation agreement." (Docket Entry # 511).
The government responds as follows:
(Docket Entry # 527).
The plea agreement discloses that, "if the Court declines to apply USSG § 5C1.2(a) (b) and 18 U.S.C. § 3553(f)" (separately and collectively, the "safety valve"), "Defendant [would] not receive an additional two-level reduction." (Docket Entry # 392). The Rule 11 hearing establishes that defendant understood that "if the safety valve were not met, 120 months would be the agreed-upon recommendation of the parties." (Docket Entry # 522, p. 8).
Defendant does not offer support for his allegation that the safety valve was not "properly explained" to him by trial counsel. (Docket Entry # 511). Indeed, he has not identified any specific element of the safety valve which he did not understand. Defendant admits in his section 2255 motion that the "judge did explain in open court the escope [sic] of this provision." (Docket Entry # 497). Defendant continues that, after receiving the court's explanation, trial counsel "told me that it was to [sic] late to request [the safety valve]." (Docket Entry # 497). The record, however, establishes that trial counsel requested the safety valve provision and the court rejected its application on the basis that defendant was not candid in his proffer. (Docket Entry # 457). The plea agreement states that "[d]efendant understands and acknowledges that, if the Court declines to apply" the safety valve provision, "[d]efendant will not receive an additional two-level reduction." (Docket Entry # 392, p. 3). Immediately above defendant's signature, he acknowledges that he discussed the agreement and his "possible defenses" with his trial counsel. (Docket Entry # 392). The plea agreement also reflects that defendant "had sufficient time to meet and discuss [his] case" with trial counsel. (Docket Entry # 392). Finally, the agreement expresses defendant's satisfaction "with the legal representation" trial counsel provided to defendant. (Docket Entry # 392). Accordingly, the record belies defendant's contention that trial counsel did not adequately explain the import of the safety valve provision to defendant.
Moreover, if defendant contests that trial counsel explained that it was too late to again request the safety valve after he was sentenced, then counsel provided correct information. Pursuant to section 5C1.2(a) (5) of the Guidelines, a defendant must truthfully provide the government any necessary information and evidence "not later than the time of the sentencing hearing." U.S. Sentencing Guidelines Manual § 5C1.2(a) (5). In sum, defendant therefore fails to meet his burden of demonstrating that trial counsel's performance was deficient under
Alternatively, defendant fails to meet his burden to show that trial counsel's failure to properly explain the safety valve resulted in harm prejudicial to his defense. Defendant offers no argument on which this court could reasonably infer that defendant's actions would have been different but for any misunderstanding of the safety valve provision. In the supporting memorandum to the section 2255 motion, defendant expressly states that, "[he] proffered everything about his involvement in the charged conspiracy." (Docket Entry # 511). Thus, it was not a deficient understanding of the requirements of the safety valve that prevented defendant from obtaining safety valve reduction, it was the lack of candor in his proffers. Regarding defendant's candor, the court found and the record supports that defendant's story was not credible. (Docket Entry # 457, p. 12). As determined by the court at sentencing, defendant resorted to "falsehoods, half truths and equivocations" regarding his proffers to the government. (Docket Entry # 457, p. 12). The court then stated, "Therefore, you do not qualify for the so-called safety valve application." (Docket Entry # 457, p. 12).
Hence, trial counsel's failure, if any, to explain the safety valve provision to defendant did not cause harm to defendant in the form of a lesser sentence by virtue of a two-point downward reduction. Rather, as found by the court, defendant's failure to provide truthful proffers to the government and his lack of credibility caused him not to qualify for the safety valve provision. (Docket Entry # 457, p. 12). In short, defendant fails to show that, but for trial counsel's failure to "properly explain [to defendant] the extent of the Safety Valve provision" (Docket Entry # 511, p. 3), the result of the proceeding would have been different.
Defendant next contends that trial counsel was ineffective by failing to argue during the sentencing hearing that "[defendant] was truthful during the proffer sessions with the Government," and for not requesting that "the Government . . . show[] the Court where and how Petitioner lied during the proffer sessions." (Docket Entry # 511, pp. 14-17). In opposition, the government notes that "[t]he record fully supported the Court's finding at sentencing that the defendant [was not candid]." (Docket Entry # 527, p. 10). The government concludes that "[u]nder these circumstances, there was no deficient performance by counsel and no prejudice." (Docket Entry # 527, p. 10).
Initially examining the prejudice prong, the plea agreement negotiated by trial counsel provided defendant with an opportunity to reduce his sentence. (Docket Entry # 392). For reasons explained in the previous section relative to prejudice, the government is correct in its assertion that trial "counsel's performance cannot be blamed for the defendant's choice not to proffer truthfully." (Docket Entry # 527, p. 9). The court made clear at the sentencing that defendant could have earned the two-level safety valve reduction had he "been completely forthcoming and not resorted to falsehoods, half truths and equivocations." (Docket Entry # 457). As noted in the previous section, the court determined that "[y]our story is not credible, and therefore, you do not qualify for the so-called safety valve application." (Docket Entry # 457);
Failure to make an objection does not necessarily undermine the fairness of a sentencing proceeding. For instance, trial counsel's decision, even if taken as error, must still reasonably have resulted in harm to the defendant.
In the case at bar, trial counsel's decision not to object to the presentence report or to address the government's contention that defendant was not entitled to a two-level downward adjustment for the safety valve (Docket Entry # 457, pp. 4-5) did not undermine the fairness of the sentencing proceeding. In light of the strength of the government's presentation, it is highly unlikely that even if trial counsel objected and challenged the government's position, the court would have applied a safety valve reduction pursuant to section 2D1.1(b) (17) of the Guidelines, an express possibility of which defendant had been warned.
Defendant fails not only to demonstrate prejudice, but also deficiency of trial counsel. "Effectiveness does not require that counsel jump through every conceivable hoop, or engage in futile exercises."
In short, defendant fails to show any reasonable probability that the result would have been different, but for trial counsel's actions.
Defendant additionally argues that trial counsel was ineffective because he failed "to request a mitigating role in the charged offense for [defendant], despite the statutory 10 year-mandatory minimum sentence." (Docket Entry # 511, p. 3). Defendant points out that the plea agreement "included the applicability of the Safety Valve provision — USSG § 5C1.2, but did not include the mitigating role played by [defendant] in the charged offense." (Docket Entry # 511). Defendant maintains that he played a minor role as "the delivery man [driving] the delivery-car, and had nothing to do with drugs itself." (Docket Entry # 511). The government responds that, "because of the quantity of drugs for which he admitted he was responsible, [defendant] was subject to a 120-month mandatory minimum sentence," and "given the applicability of the mandatory minimum, the defendant's role was wholly irrelevant to the sentence imposed." (Docket Entry # 527).
The safety valve provision exempts certain drug offenders from mandatory minimum sentences.
The record indicates that trial counsel did not move for a mitigating-role adjustment under section 3B1.2 of the Guidelines or make an objection to the sentencing calculations, and neither did the government recommend a minor role reduction sua sponte. (Docket Entry Of 457, 522). A mitigating-role adjustment allows for a two-level reduction in a defendant's total offense level.
Bypassing the ineffectiveness prong, defendant cannot prevail based on trial counsel's failure to request a mitigating-role adjustment because he is unable to demonstrate a reasonable probability that trial counsel's omissions, if any, were prejudicial.
Simply stated, the government repeatedly represented and defendant repeatedly stated that the recommended agreement was a 120-month sentence if and only if defendant did not comply with the safety valve provision. He did not and, as a result, he received the agreed-upon recommendation of a 120-month sentence. Furthermore, "the text of § 3553(e) does not authorize the court to impose a sentence below the statutory minimum unless the Government has made a motion requesting that relief."
Although not set out as a ground for relief in the section 2255 motion itself, defendant asserts in the supporting memorandum that "counsel did not fulfill his responsibilities in the plea bargain process, forcing [defendant] to sign a plea agreement which did not include the real role played by him in the charged offense." (Docket Entry # 511, p. 10). Consequently, "the plea agreement was not made voluntarily, knowngly, [sic] and intelligently." (Docket Entry # 511, p. 10). The allegation amounts to a request to withdraw his guilty plea. In support of the contention that the plea agreement was not entered voluntarily, knowingly, and intelligently, defendant adds that "[t]here were too many issues" pressuring him and that he has a "low level of reasoning." (Docket Entry # 511, p. 11). Defendant thus asserts that he "did not understand the nature of his Fifth and Sixth Amendment rights at the moment of his plea allocution" and "that he was entering [a] plea of an offense without recognizing the mitigating role playing [sic] by him." (Docket Entry # 511, p. 13).
A guilty plea must be a "voluntary and intelligent choice among the alternative courses of action open to the defendant" within the meaning of Rule 11.
The record demonstrates that defendant understood the sentencing range as plainly written in the plea agreement. (Docket Entry # 392). He acknowledged in the plea agreement that, "I have had this letter read to me in my native language in its entirety and discussed it with my attorney." (Docket Entry # 392). The plea agreement states, "Attorney and Defendant agree that . . . incarceration for a period of time not less than 87 months and not more than 120 months, but in no event below any applicable mandatory minimum sentence" is a reasonable and appropriate disposition of this case. (Docket Entry # 392). Defendant further acknowledged in the plea agreement that, "I understand the crimes to which I have agreed to plead guilty, [and] the mandatory minimum and maximum penalties for those offenses." (Docket Entry # 392). Notably, defendant attested that he and his attorney "have had sufficient time to meet and discuss my case," and that "I am entering into this Plea Agreement freely, voluntarily, and knowingly because . . . I believe this Plea Agreement is in my best interest." (Docket Entry # 392).
At defendant's Rule 11 hearing on June 15, 2015, the government, in reiterating the terms of the plea agreement, specifically stated that, "if the safety valve were not met, 120 months would be the agreed-upon recommendation of the parties." (Docket Entry # 522). Defendant answered, "Yes," when the court asked "are those the terms of your agreement with the Government, as you understand them?" (Docket Entry # 522). Such statements during the plea colloquy "carry a strong presumption of verity."
There is also insufficient evidence to support defendant's assertion that he was forced to sign the plea agreement. An attorney can, as here, legitimately attempt to persuade his client to plead guilty in his best interest without invalidating a plea.
Defendant's argument that he "did not understand the nature of his Sixth . . . Amendment right[] at the moment of his plea allocution" (Docket Entry # 511, p. 13) is not convincing because the relevant question for plea withdrawal is not whether defendant's attorney rendered effective performance in explaining the terms of the plea agreement, but whether or not the defendant adequately understood the charges and their consequences.
In accordance with the foregoing discussion, this court
(Docket Entry # 527-1, p. 2).
Defendant argues without factual or case support that the standard established in
