RICHARD G. KOPF, Senior District Judge.
Jose A. Espinoza has filed a Motion to Vacate under
Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts (the "Rules"), I conclude that no evidentiary hearing is required. On the contrary, and pursuant to Rule 4(b) of the Rules, I find and conclude that it plainly appears from Espinoza's motion, any attached exhibits, and the record of the prior proceeding that Espinoza is not entitled to relief.
Accordingly, the motion will be denied and dismissed with prejudice. Briefly, the reasons for this decision are set forth below.
While Espinoza lived in Omaha, Nebraska, he was intimately involved with the East Side Locos street gang in Grand Island, Nebraska. A confidential informant by the name of Ubaldo Lopez ("Lopez") made controlled purchases of methamphetamine and a gun from Espinoza. (E.g., Filing No.
In April of 2011, while pending trial, and before any plea or plea agreement, Espinoza was in the Saunders County Jail with one of his partners in crime, Hugo Galaviz.
Espinoza also sought to have another man killed. That man (who the government believed was Gilbert Ontiveros ("Ontiveros")) was a member of the East Side Locos. (E.g., Filing No.
As it turned out, Malanga was an informant for the government. After the government confronted Espinoza with Malanga's information, Espinoza signed a plea agreement on July 8, 2011, and the agreement was filed on July 25, 2011. (Filing No.
On July 22, 2011, the government filed a notice of information to establish prior convictions. (Filing No.
On the same day the plea agreement was filed, July 25, 2011, Judge Zwart conducted a Rule 11 proceeding. As usual, Judge Zwart's inquiry was searching and extensive. (Filing No.
Judge Zwart submitted her findings and recommendations suggesting that I find the defendant guilty and accept the plea agreement. (Filing No.
At the sentencing proceeding, I noted that Espinoza had filed a complaint against Shapiro with the Nebraska Counsel on Discipline. I inquired of Espinoza about that complaint, and, unprompted, he requested leave to withdraw the grievance against Shapiro. (Filing No.
I then inquired of counsel and Espinoza whether they wanted me to adopt the plea agreement. I closely questioned Espinoza. Espinoza claimed that he did not understand he could receive an obstruction-of-justice enhancement when he signed the plea agreement and appeared before Judge Zwart, but then he told me that he now understood that if I accepted the plea agreement, he would receive an obstruction-of-justice enhancement even though the government would not prosecute him separately for his solicitation to murder. (Filing No.
We then conducted an extensive hearing about whether Espinoza should receive a reduction for acceptance of responsibility despite the obstruction-of-justice enhancement and whether I should vary or depart downward. The testimony of Malanga and the case agent were taken. I decided that this case was not of the unusual variety warranting an adjustment for acceptance of responsibility given Espinoza's attempt to have someone murdered. I also ruled that there was no basis for a variance (or departure) below the calculated Guideline range of 324 to 405 months in prison.
Espinoza was sentenced to 324 months on the drug charge and 120 months on the gun charge to be served concurrently. The judgment was filed January 13, 2012. (Filing No.
Espinoza argues that defense counsel was ineffective at sentencing. Therefore, the Strickland standard must be applied.
An evidentiary hearing is unnecessary if the claimant makes an insufficient showing on either or both prongs or the record clearly contradicts the claimant's showing on either or both prongs.
None of Espinoza's claims have merit. I will briefly discuss the substance of each claim in turn. After that, I will address the issue of prejudice.
First, Espinoza claims that his counsel was ineffective because Espinoza should not have received an obstruction-of-justice enhancement. In particular, Espinoza relies upon an appellate opinion pertaining to his comrade, Hugo Galaviz. Espinoza relies upon
In Galaviz, the Court of Appeals, over a dissent, held Galaviz should not have received an obstruction-of-justice enhancement. I was the sentencing judge in that case, and, as I indicated before, Galaviz was one of Espinoza's compatriots. The facts that I used to enhance Galaviz's sentence were roughly similar, but certainly not identical, to the facts I used to enhance Espinoza's sentence. Indeed, as reflected by the fact that we conducted separate evidentiary hearings for both defendants, there were important differences.
In the Galaviz case, the majority held that after the defendant's incarceration upon pleading guilty to distributing methamphetamine and being a felon in possession of a firearm, Galaviz's conspiracy to murder a confidential informant in retaliation for his cooperation with the government was not a willful attempt to obstruct the administration of justice regarding the "instant offense of conviction." The court reasoned that Galaviz could not have intended to obstruct justice regarding offenses to which he had already pleaded guilty unless he thought the informant was going to testify against him at sentencing. Thus, the government was obligated to show that he expected the informant to testify at sentencing. Because the government failed to do so, Galaviz should not have received an obstruction-of-justice enhancement.
There are several reasons why Galaviz is of no help to Espinoza. Initially, even if Galaviz was on point, defense counsel could not reasonably be faulted for failing to anticipate the Galaviz decision in light of
Furthermore, unlike the facts of Galaviz, Espinoza explicitly bargained for an obstruction-of-justice enhancement in exchange for the government's promise not to prosecute him on a solicitation-to-murder charge. This was a rational quid pro quo, and there is no reason whatever why counsel should be faulted for negotiating a bargain that Espinoza explicitly approved when I questioned him at the time of sentencing.
Still further, and unlike the situation in Galaviz, Espinoza had not entered a guilty plea or entered into a plea agreement at the time he solicited the murder of Lopez. In this regard, Espinoza explicitly told Malanga that he "wanted [the informant] shut up. He didn't want him to show up in court and testify." (Filing No.
Second, Espinoza faults his lawyer for failing to achieve an "acceptance-of-responsibility" reduction. This claim is baseless. While counsel made a diligent effort to convince me that the conduct involving the obstruction of justice was not sufficiently serious so as to warrant both an obstruction enhancement and a refusal to award Espinoza a reduction for acceptance of responsibility, he was unsuccessful. But the lawyer cannot reasonably be faulted for failing to convince me because the law was clearly against him. See, e.g.,
Third, Galaviz argues that his counsel was ineffective for allowing Espinoza to be subjected to the 20-year statutory minimum. Espinoza admitted before Judge Zwart that he had been convicted of a drug felony. However, he correctly asserts that he served less than a year in prison for that offense. From that premise, he argues that the statutory minimum did not apply to him, and thus counsel was ineffective for not challenging the application of the statutory minimum. Espinoza is simply wrong. The statutory minimum is triggered by the qualifying felony conviction even if the offender does less than a year in prison. See, e.g.,
Fourth, Espinoza argues that his counsel was ineffective because the Guideline calculation was wrongly increased by two points as a result of a weapon. This claim is frivolous. Espinoza admitted that he distributed drugs and a gun at the same time. (E.g., Filing No.
Fifth, Espinoza argues that he was only responsible for 95.6 grams of actual methamphetamine and his counsel was ineffective for allowing him to be held responsible for more than that amount. This argument is also frivolous. Espinoza admitted in writing and orally that he was responsible for a least 150 grams, but not more than 500 grams of actual methamphetamine. (Filing No.
Sixth, Espinoza claims that his criminal history score was miscalculated and his counsel was ineffective for failing to see to the correction of that error. Specifically, Espinoza claims that the third-degree assault offense that took place on July 7, 2008, and the possession-of-a-controlled-substance offense that took place on July 13, 2008, should have generated only two points rather than four points in total because he was sentenced in both cases on June 12, 2009. Espinoza is mistaken. Since the offenses were committed on different dates (and were treated separately for docketing purposes) and because there must have been an intervening arrest, the criminal history score was properly calculated under Guideline § 4A1.2(A)(2). Moreover, counsel skillfully, albeit unsuccessfully, argued that I should vary or depart from the criminal history score because the sentences were imposed on the same date and the criminal history was thus not representative of the true criminal behavior. (Filing No.
Finally, as to the issue of prejudice, there is no reasonable probability that the sentence I imposed would have been less harsh had counsel done something different or better. As the sentencing judge, I can state without equivocation that Espinoza is a dangerous criminal, and the sentence he received would have stood even if that meant an upward variance. I said as much at sentencing. (E.g., Filing No.
Accordingly,
IT IS ORDERED that the Motion to Vacate under 28 U.S.C. § 2255 (filing no.
