JOHN M. GERRARD, District Judge.
This matter is before the Court upon initial review of the pro se motion to motion to vacate under 28 U.S.C. § 2255 (filing 97), filed by the defendant, Ulises De Jesus Campos-Almazan. The motion was timely filed on January 3, 2014, less than 1 year after Almazan's conviction became final. See 28 U.S.C. § 2255(f). The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:
A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a § 2255 motion may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.
Almazan pleaded guilty to one count of conspiracy to distribute 500 grams or more of a mixture or substance of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. Filing 14 at 1; filing 74. Under their Rule 11(c)(1)(B) plea agreement, the parties agreed that Almazan should be held responsible for between 1.5 and 5 kilograms of methamphetamine mixture, resulting in a base offense level of 34, pursuant to U.S.S.G. § 2D1.1. Filing 74 at 5. Without regard to the mandatory minimum, Almazan's advisory guidelines sentencing range was 108 to 135 months. Filing 91 at ¶ 63. This was based upon a criminal history category I and a total offense level of 31 (Almazan's base offense level of 34 was reduced by an additional 3 levels for acceptance of responsibility). Filing 91 at ¶¶ 28-44. Due to the statutory mandatory minimum, Almazan's final guidelines range was 120 to 135 months. See, 21 U.S.C. § 841 (b)(1)(A)(viii); U.S.S.G. § 5G1.1(c)(2). Neither party objected to the presentence report, and the Court adopted the report and the parties' plea agreement. Filings 89 and 90. The Court sentenced Almazan to 120 months' imprisonment.
Almazan's § 2255 motion attacks the validity of his sentence and guilty plea on several grounds. First, he argues that his attorney was constitutionally ineffective in preparing him for his guilty plea and that, as a result, his guilty plea was not knowing and voluntary. Filing 97 at 4. Almazan asserts that his attorney did not adequately explain to him the consequences of his guilty plea and the applicability of certain sentencing enhancements. Specifically, Almazan claims that his attorney failed to advise him that he would receive an aggravating role adjustment under U.S.S.G. § 3B1.1; that he would not receive a downward adjustment for acceptance of responsibility; and that he would not receive relief from the mandatory minimum under the safety valve, as well as the corresponding 2-level reduction to his offense level. See, 18 U.S.C. § 3553(f); U.S.S.G. §§ 2D1.1(b)(16) & 5C1.2. There is an immediate and obvious problem with several of Almazan's arguments: he did receive a 3-level downward adjustment for acceptance of responsibility and he did not receive an aggravating role enhancement. Filing 91 at ¶¶ 24, 37. These claims will be dismissed without an evidentiary hearing. His remaining claim, regarding the advice he received on his eligibility for safety valve relief, is also contradicted by the record, as the Court will explain below.
Second, in a related vein, Almazan claims that his counsel was ineffective for failing to request the acceptance of responsibility enhancement, failing to object to the aggravating role enhancement, and failing to request safety valve relief. Filing 97 at 4, 7-8. Again, Almazan's first two arguments are simply wrong, and will be dismissed without a hearing. However, the record does not directly contradict Almazan's argument that he was eligible for, but did not receive, safety valve relief. The Court finds that more information is needed to resolve this claim, and that an evidentiary hearing is appropriate.
Almazan next makes several additional arguments for why his guilty plea was involuntary or his counsel was constitutionally ineffective in the plea process. These remaining arguments are contradicted by the record and will be dismissed without a hearing.
Finally, Almazan argues that despite requests from himself and his family, his attorney failed to file a notice of appeal. Resolving this claim will require the Court to make credibility determinations, and cannot be resolved without an evidentiary hearing.
Almazan argues that his counsel failed to explain to him that he would not receive safety valve relief, that this amounted to constitutionally ineffective assistance of counsel, and that this rendered his plea involuntary and unknowing. To establish a claim of ineffective assistance of counsel, Almazan must show that his attorney's performance was deficient and that this prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court may dispose of an ineffective assistance claim under either Strickland prong. For example, if prejudice is not shown, the Court need not determine whether counsel's performance was deficient. Id. at 697.
In the context of a challenge to a guilty plea, the deficient performance and prejudice are demonstrated if the defendant can prove that (1) his counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-60 (1985); Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 (8th Cir. 2011). The Court need not examine whether counsel's representation was deficient, because Almazan has failed to demonstrate Strickland prejudice. Almazan's claim—that, but for any allegedly poor or missing advice by counsel, he would have insisted on going to trial—is contradicted by the record.
The record does show that Almazan was interested in obtaining safety valve relief. In his petition to enter a guilty plea, Almazan stated that he was pleading guilty "1. To get acceptance of responsibility[;] 2) to get a safety valve[; and] 3) to get below 10 [years.]" Filing 73 at 11. However, the record also reveals that Almazan understood he was not guaranteed relief under the safety valve, and that he chose to plead guilty anyway.
Almazan's plea agreement was silent on safety valve relief. Filing 74. At the change of plea hearing, Almazan affirmed to the Magistrate Judge, under penalty of perjury, that he had read, understood, and signed that agreement, that he did not have any questions regarding his plea agreement, and that his plea had not been induced by any promises other than those contained in the plea agreement. Filing 76 at 13-16, 18; see also, filing 73 at 5-6, 10-12; filing 74 at 9. At that hearing, defense counsel further explained that while there had been discussions about safety valve relief, it was not part of the plea agreement, and that it remained to be seen whether Almazan would qualify. Filing 76 at 15-16. And throughout the plea process, Almazan was informed by counsel and the Court that he was subject to a mandatory minimum sentence of 10 years and faced up to life in prison, that his advisory guidelines range would not be determined until after his presentence report was completed, and that the final range might differ from what his attorney had told him. Filing 76 at 6-7, 10-14; filing 73 at 5-6. In sum, the record shows that Almazan was informed that safety valve relief was not guaranteed, that he was otherwise subject to a 10-year mandatory minimum, and that he nonetheless chose to plead guilty. Even if Almazan's allegations of deficient counsel were true, he has not shown that he was prejudiced as required by Strickland and Hill.
Almazan next argues that his counsel was constitutionally ineffective for failing to request that Almazan receive safety valve relief. Filing 97 at 5. This argument fares somewhat better, at least insofar as it is not contradicted by the record. There are five statutory requirements for safetyvalve eligibility. See 18 U.S.C. § 3553(f)(1)-(5). Almazan asserts (albeit in a somewhat conclusory manner) that he satisfied all five. See filing 97 at 6. While conclusory, this statement is not without support in the record. It does appear that Almazan satisfied the first four requirements. See, 18 U.S.C. § 3553(f)(1)-(4); filing 91 at ¶¶ 33, 44. The only question is whether Almazan satisfied the fifth criterion. To do so, Almazan must have truthfully provided the government with all information and evidence he had concerning his offense, and any offenses that were part of the same course of conduct or of a common scheme or plan, and he must have done so not later than the sentencing hearing. 18 U.S.C. § 3553(f)(5).
As of the date the presentence report was prepared, the probation officer found that Almazan had not made the required disclosure. Filing 91 at ¶ 31. Almazan does not refute this. However, in a sworn declaration attached to his petition, Almazan states that when he was first arrested, he answered government agents' questions regarding his offense, and the roles of at least some others involved in the methamphetamine trade. Filing 98 at 5. This alone does not demonstrate that Almazan provided the government with all the information required. See United States v. Guerra-Cabrera, 477 F.3d 1021, 1025 (8th Cir. 2007). Nor does it prove that the information Almazan provided was truthful. But it does tend to show that Almazan was willing to tell the government what he knew. This willingness is further evidenced by his petition to enter a guilty plea, in which he expressly stated he was hoping to obtain safety valve relief. See filing 73 at 11. The Court considers these more specific facts together with the statement in Almazan's motion—which was signed under penalty of perjury—that he satisfied all five requirements for safety valve relief. Giving Almazan the benefit of the doubt, the Court cannot confidently state that his claim of deficient performance is conclusively contradicted by the current record.
If Almazan was eligible for and did not receive safety valve relief, then he has demonstrated prejudice. An error increasing the defendant's sentence by as little as 6 months can suffice to show prejudice. Glover v. United States, 531 U.S. 198, 202-04 (2001). Without the mandatory minimum, and after factoring in the additional 2-level decrease under U.S.S.G. § 2D1.1(b)(16), Almazan's guidelines range, 120 to 135 months' imprisonment, would have been reduced to 87 to 108 months.
It remains to be seen whether Almazan did, in fact, truthfully disclose the necessary information prior to sentencing. The Court finds that an evidentiary hearing is necessary to resolve this question. The Court further finds that Almazan is eligible for appointment of counsel for the hearing, pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, and the Amended Criminal Justice Act Plan for the District of Nebraska. By separate order, the Court will appoint counsel and set this matter for a hearing.
Almazan next asserts that his counsel was ineffective in assisting him in deciding whether to plead guilty, in negotiating the terms of the plea agreement, and in failing to provide him with certain information he allegedly requested. And Almazan argues, these deficiencies rendered his plea unknowing and involuntary. Each of these arguments is contradicted by the record.
Almazan first asserts that his attorney was constitutionally ineffective because he
Filing 97 at 9.
First of all, Almazan's numbers are wrong. His plea agreement required him to accept responsibility for between 1.5 and 5 kilograms of methamphetamine mixture, yielding a base offense level of 34. See, filing 74 at 5; U.S.S.G. § 2D1.1. More importantly, Almazan's counsel was not deficient in agreeing to this quantity. Almazan's claim to the contrary is contradicted by the record and reflects a misunderstanding of the nature of "relevant conduct" that may be attributed to Almazan for sentencing purposes.
The probation officer who prepared Almazan's presentence report independently verified that Almazan should be held accountable for the same amount of methamphetamine. This was based upon two separate amounts. First, on October 24, 2012, Almazan was arrested after he sold a quantity of methamphetamine to a confidential informant. This is the 4 ounces (113 grams) that Almazan mentions. After accounting for its purity and giving Almazan the benefit of the testing process' margin of error, the amount sold to the informant was determined to contain 100.6 grams of actual methamphetamine (as opposed to a mixture). Filing 91 at ¶¶ 18-21. The second amount was based on a proffer statement from an unnamed, cooperating witness. That individual stated they sold approximately 5 pounds of methamphetamine to Almazan. Because the purity of this methamphetamine was not known, Almazan was held accountable for 5 pounds of methamphetamine mixture. Together, these quantities yielded a base offense level of 34. Filing 91 at ¶¶ 22-23; U.S.S.G. § 2D1.1 & cmt. 8(D).
Almazan does not dispute that he was personally caught selling 100 grams of actual methamphetamine. Nor does he dispute his involvement in a broader drug conspiracy with his co-defendant and his co-defendant's girlfriend. In his affidavit, Almazan admits that he acted as a middleman, procuring drugs for his co-defendant. Filing 98 at 2, 5. And he admitted to having procured drugs for the same confidential informant on one other occasion. Filing 98 at 5. He has also failed to dispute the cooperating witness' proffer statement that he or she had sold Almazan 5 pounds of methamphetamine.
Almazan pleaded guilty to a conspiracy to distribute methamphetamine, spanning from March 2011 to October 2012. And in determining drug quantity, the Court considers all of Almazan's "relevant conduct," which includes not only all of Almazan's acts, but all reasonably foreseeable acts of his co-conspirators (whether or not charged). U.S.S.G. § 1B1.3(a)(2) & cmt. background. Nor is relevant conduct limited to the temporal scope of crimes charged in the indictment. United States v. Burman, 666 F.3d 1113, 1119 (8th Cir. 2012). When the 100 grams Almazan was caught with are combined with 5 pounds of methamphetamine mixture, he is well over the threshold for a base offense level of 34. Even if the cooperating witness' statement is disregarded, the 100 grams of actual methamphetamine put Almazan just one step below level 34 in the drug quantity table. And given Almazan's extended involvement in procuring methamphetamine for multiple people, it is likely the government would have been able to prove up the remaining quantity necessary to put Almazan at level 34. Given the facts he had to work with, Almazan's counsel was not deficient for advising agreement to a base offense level of 34.
Nor would insisting on a trial have benefitted Almazan. He does not dispute his guilt, and the Court can confidently state that there is little chance Almazan would have been able to avoid a conviction for, at the very least, the 100 grams of actual methamphetamine he was personally caught selling to a confidential informant.
Almazan's claim that he was "pressured" into accepting a guilty plea is also contradicted by the record. In support of this claim, Almazan avers that his counsel told
Filing 98 at 8.
The Court, however, need not determine whether these alleged statements could have rendered Almazan's plea involuntary, as Almazan's recent claims are contradicted by his previous sworn statements to the Court. At the change of plea hearing, after swearing under penalty of perjury to tell the truth, Almazan testified that he was satisfied with the advice his counsel had given him, that no one had made any threat, promise, or inducement (other than the plea agreement) in order to induce him to plead guilty or sign the plea agreement, that he had no questions regarding the plea agreement, and that he had no questions about anything raised at the hearing or in his plea agreement or petition to enter a plea of guilty. Filing 76 at 3, 6, 13-14, 18, 20.
Almazan also reaffirmed the truthfulness of his responses in the petition to enter a plea of guilty. Filing 76 at 11-12. Among other things, Almazan agreed in that petition that he was satisfied with his attorney, had no objections to the way he had been represented, that his plea was made "voluntarily and completely of [his] own choice, free of any force or threats from anyone," and that he was not pleading guilty for any reason other than the fact that he was guilty. Filing 73 at 2, 10.
A defendant's representations during plea-taking, such as those concerning the voluntariness of the plea, carry a strong presumption of verity, and pose a formidable barrier in any subsequent collateral proceedings. Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997). Almazan has not overcome that presumption. Instead, the record conclusively establishes that his plea was knowing and voluntary, and that this claim is without merit. See id.
Almazan next claims that his attorney "failed in providing me with a discovery [sic] for my case. I did not have this information to be able to evaluate if . . . the evidence against me was solid or not." Filing 98 at 7. He claims that this caused him to believe he had no choice but to plead guilty. This claim is similarly contradicted by Almazan's previous sworn statements. As noted above, Almazan testified that he was satisfied with his counsel and did not have any questions regarding his plea of guilty. And in his petition, Almazan averred that there was no other information or advice that he wanted before entering a plea of guilty. Filing 73 at 12. This claim, as with the other claims related to Almazan's guilty plea, is without merit.
Finally, Almazan asserts that his counsel was ineffective for failing to file a notice of appeal. Almazan asserts that he and his family wanted his attorney to file an appeal, and that "many calls where [sic] made to former counsels' office and never did he return these calls in regards to the appeal . . . ." Filing 97 at 9.
Normally, to succeed on an ineffective assistance claim, the defendant must show deficient performance that caused prejudice. Strickland, 466 U.S. at 687. However, an attorney's failure to file a notice of appeal after being instructed to do so by his client constitutes ineffective assistance entitling a movant to § 2255 relief, no inquiry into prejudice or likely success on appeal being necessary. Eagle v. United States, 742 F.3d 1079, 1082 (8th Cir. 2014). So, Almazan may state an ineffective assistance claim, notwithstanding the presence of an appeal waiver in his plea agreement. Filing 74 at 7.
For this claim to succeed, Almazan must show that he manifestly instructed his counsel to file an appeal. Eagle, 742 F.3d at 1082. Almazan does not claim that he actually succeeded in speaking to his attorney to ask for an appeal. But he does aver that "many calls" were made to his counsel's office "in regards to the appeal." Filing 97 at 9. Assuming that these calls actually reached the office of Almazan's counsel and communicated Almazan's desire for an appeal, then Almazan may potentially have stated grounds for relief. Compare Parsons v. United States, 505 F.3d 797, 799 (8th Cir. 2007) (relief not appropriate where attorney did not hear defendant's spoken request to file appeal). While Almazan's averment is vague, it is also the only evidence in the record. And even if the Court were to receive an affidavit from Almazan's counsel stating that Almazan instructed him not to file an appeal, the Court could not resolve the matter without making a credibility determination. The Court will therefore err on the side of caution and hold an evidentiary hearing. See Watson v. United States, 493 F.3d 960, 964 (8th Cir. 2007).
The Court has completed its initial review of Almazan's § 2255 motion. The files and records conclusively establish that several of Almazan's claims are without merit. However, two of Almazan's claims—that he was denied effective assistance of counsel when he did not receive safety valve relief and when his counsel did not file a notice of appeal—are not contradicted by the current record. An evidentiary hearing is required to resolve those claims. Accordingly,
IT IS ORDERED:
