United States District Court, D. Arizona
SUSAN R. BOLTON, District Judge.
The Court now considers Petitioner Pedro Isaac Martinez's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 1, Mot.) The matter was referred to Magistrate Judge Bridget S. Bade for a Report and Recommendation. The Magistrate Judge filed her Report and Recommendation recommending that the Motion be denied. (Doc. 10, Report and Recommendation ("R & R").) She further recommended denying a certificate of appealability and leave to proceed in forma pauperis on appeal because Petitioner has not made a substantial showing of the denial of a constitutional right. Petitioner filed his objections to the Report and Recommendation. (Doc. 13, Obj. to R & R.) Having reviewed the record de novo, the Court adopts the Report and Recommendation and denies the Motion.
The background of this case was summarized in the Report and Recommendation and is incorporated herein:
In December 2011, pursuant to a plea agreement, Defendant pleaded guilty to one count of Attempted Armed Bank Robbery, in violation of 18 U.S.C. § 2113(a) and (d) (Count 1 of the second superseding indictment), four counts of Armed Bank Robbery, in violation of 18 U.S.C. § 2113(a) and (c) (Counts 3, 7, 9, and 11 of the second superseding indictment), one count of Interference with Commerce by Violence, in violation of 18 U.S.C. § 1951 (Count 1 of the indictment in the District of Nevada case CR-11-394-KJD-CWH, transferred to the District of Arizona as CR-11-2367-PHX-SRB (the Nevada case)), and Use of a Firearm during a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i, ii, iii) (Count 6 of the second superseding indictment). (CR Doc. 75.) In exchange for Defendant's plea, the government dismissed counts 2, 4, 5, 8, 10, and 12 of the second superseding indictment. (CR Doc. 75 at 3; CR Doc. 74 at 1.)
On June 4, 2012, the Court sentenced Defendant to a 300-month term of imprisonment followed by five years of supervised release. (Doc. 74.) Specifically, the Court sentenced Defendant to 180 months' imprisonment on Counts 1, 3, 7, 9, and 11 in the second superseding indictment (CR Doc. 74 at 1), and on Count 1 of the Nevada case,  and to 120 months' imprisonment on Count 6 in the second superseding indictment. ( Id. at 1.) The Court ordered that the sentences on Counts 1, 3, 7, 9, 11 and Count 1 of the Nevada case run concurrently with each other, and that the sentence on Count 6 run consecutively to the sentences imposed on Counts 1, 3, 7, 9, and 11 and in Count 1 of the Nevada case. ( Id. )
(R & R at 1-2.)
Petitioner timely filed the Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255. In this Motion, Petitioner raised four arguments: (1) his sentences violate the Double Jeopardy Clause of the Fifth Amendment and were erroneously calculated because he received improper weapon enhancements that resulted in double counting, in violation of Amendment 599 of the U.S. Sentencing Guidelines ("USSG"); (2) he received ineffective assistance of counsel when his attorney failed to object to the sentencing guideline range and failed to provide him with a copy of the pre-sentence investigation report ("PSR"); (3) his right to due process was violated when the Probation Office failed to provide him with a copy of the PSR before being sentenced; and (4) the waiver of his right to collaterally attack his sentence under the plea agreement is moot because "fundamental errors" occurred at sentencing. (Mot. at 5-6.) The Report and Recommendation concluded that each of Petitioner's grounds lacked merit and recommended that the Court deny the Motion. (R & R at 3-17.) Petitioner timely filed objections to the Report and Recommendation.
II. LEGAL STANDARDS AND ANALYSIS
A federal prisoner may seek relief under 28 U.S.C. § 2255 if his sentence was "imposed in violation of the United States Constitution or the laws of the United States, ... was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). When a prisoner moves for post-conviction relief, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a petitioner files timely objections to the magistrate's report and recommendation, the district court must make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Id .; see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (stating that the district court is not required "to review, de novo, findings and recommendations that the parties themselves accept as correct").
A. Ground 1: Double Jeopardy and Double Counting
In his Motion, Petitioner argued that because Count 5 (armed bank robbery occurring on October 26, 2010) was dismissed pursuant to his plea agreement, the remaining charges for attempted armed bank robbery and armed bank robbery (Counts 1, 3, 6, 9 and 11, and Count 1 in the Nevada case) were combined and served as the underlying offense for Count 6 (brandishing and discharging a firearm during a crime of violence on October 26, 2010, in violation of 18 U.S.C. § 924(c)). (Mot. at 5, 10-16.) Petitioner argued that because these charges were combined and served as the underlying offense to Count 6, he should not have received weapon enhancements on Counts 1, 3, 6, 9 and 11, and Count 1 in the Nevada case, as such enhancements constitute double punishment and double counting, in violation of Amendment 599 of the USSG. ( Id. at 10-16.)
The Magistrate Judge concluded that Petitioner's sentence did not violate Amendment 599 or otherwise result in double counting or double punishment. The Magistrate Judge specifically concluded that although Count 5 was dismissed pursuant to a plea agreement, Petitioner admitted to facts of the armed robbery on October 26, 2010 in the plea agreement and thus the government proved the underlying offense to Count 6. (R & R at 6 n.7 (citing United States v. Robertson, 901 F.2d 733, 734 (9th Cir. 2010) (stating that it is not necessary for a defendant charged with a § 924(c) offense be separately charged and convicted of the underlying offense)).) The Magistrate Judge concluded that because Counts 1, 3, 7, 9, and 11, and Count 1 of the Nevada case were not related to the conduct underlying Count 6, the weapon enhancement for each count did not violate Amendment 599 or result in double punishment, in violation of the Double Jeopardy Clause. ( Id. at 6-7.)
Petitioner objected to the Magistrate Judge's conclusion, arguing that the Magistrate Judge misapplied the relevant sentencing guidelines, statutes, and case law in her analysis of his sentencing. (Obj. to R & R at 2-9.) Petitioner reiterates his argument that his plea agreement "consolidated" his § 924(c) charge and Counts 1, 3, 7, 9, and 11, and Count 1 of the Nevada case, and therefore the weapon enhancement for each charge violated Amendment 599. ( Id. at 4-5.) To support this conclusion Petitioner argues that the "literal language of Amendment 599 implies that the underlying offense must be conjoined with the 924(c) conviction so that it may subsume all weapons enhancements." ( Id. at 7.) Petitioner argues that based on the "structure of [his] plea agreement" and the fact that Count 5 was ...