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Ayala v. United States

United States District Court, D. Arizona

January 31, 2018

Jesus Guadalupe Vasquez Ayala, Movant/Defendant
v.
United States of America, Respondent/Plaintiff.

          REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

          James F. Metcalf Judge

         I. MATTER UNDER CONSIDERATION

         Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on January 27, 2017 (Doc. 1). On September 11, 2017 Respondent filed its Response (Doc. 16). Movant filed a Reply on October 23, 2017 (Doc. 19).

         The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

         A. FACTUAL BACKGROUND

         Respondent makes the following summary of the factual background:

Defendant was born in Sinaloa on March 28, 1980, and is a citizen and national of Mexico. He entered into the United States unlawfully on October 15, 1999, and remained until December 27, 1999, when an immigration judge ordered his removal for a period of ten years. Defendant reentered into the United States and was convicted of Possession or Purchase for Sale of Designated Controlled Substances, a felony offense, in violation of California Health and Safety Code section 11351, and of Felon/Addict in Possession of a Firearm, in violation of California Penal Code section 12012(A) on March 31, 2000. He was sentenced to prison for two years.
Defendant reentered unlawfully again in June 2001 and remained until December 29, 2003, when he was deported to Mexico pursuant [to] the reinstatement of his removal order. Defendant was warned not to enter or be in the United States at any time, but he reentered on June 1, 2008 and was found in Phoenix, Arizona on November 8, 2014, after being arrested and booked into the Maricopa County Jail (MCJ) for aggravated harassment. He informed immigration officials at MCJ that he was a citizen of Mexico, unlawfully present in the United States. Immigration officials confirmed his statements and lodged a detainer for him.
Defendant pleaded guilty to Aggravated Harassment, a felony and on December 18, 2014, was sentenced to the Arizona Department of Corrections (ADOC) for one year. During the booking process at ADOC, Defendant informed an immigration officer that he was a citizen and national of Mexico unlawfully present in the United States. On July 8, 2015, Defendant completed his sentence and was arrested by immigration officials for reentering and being in the United States unlawfully.

         (Response, Doc. 16 at 1-2 (citations omitted).) Movant adopts this statement of the factual background, but asserts that his 2000 drug conviction was pursuant to a “West Plea, ” and that he “did not admit elements of sale to any amount of Drugs or type of Drug.” (Reply, Doc. 20 at 1.)

         The undersigned finds that Respondent's recitation accurately reflects the record. (See Exhibit A, Record of Deportation; Exhibit F, California Prosec. Records.) (Exhibits to the Response, Doc. 16, are referenced herein as “Exhibit __.”)

         B. PROCEEDINGS AT TRIAL

         Movant was charged with Reentry of Removed Alien, in violation of 8 U.S.C. § 1326(a), with a sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(1). (CR Doc. 1.) (Docket entries in the underlying criminal case, United States v. Jesus Guadalupe Vasquez Ayala, CR-15-0969-PHX-SPL, are referenced herein as “CR Doc. __.”)

         Criminal Justice Act attorney Baltazar was appointed to represent Movant, and on August 6, 2015, Movant entered into a “Fast Track 5K3.1” plea agreement. (CR Doc. 26.)

         Under the terms of Plea Agreement, Movant agreed to plead guilty to the charge of illegal re-entry in violation of 8 U.S.C. § 1326(a) and 1326(b)(1) or (b)(2). (Id. at 1.) In addition, he agreed to reinstatement of removal proceedings. (Id. at 5.)

         Agreements regarding sentencing included: (a) a two or three level reduction in offense level for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1; (b) a Base Offense level of 8, plus an adjustment for his most serious prior conviction pursuant to U.S.S.G. § 2L1.2(a) and (b); (c) a two or four level departure under the Attorney General's Early Disposition Program, dependent upon the nature of Movant's criminal history, provided that a four level departure would prohibit other variances, adjustments, departures or reductions; and (d) if no enhancement applied under § 1326(b)(1) or (b)(2), the sentence would not exceed three to twelve months and a day, dependent upon the applicable criminal history category. (CR Doc. 26 at 3-4.)

         Movant agreed to the following statement of factual basis:

FACTUAL BASIS
I further admit the following facts are true and if this matter were to proceed to trial the United States could prove the following facts beyond a reasonable doubt: I am not a citizen or national of the United States. I was removed from the United States through Nogales, Arizona, on December 29, 2003. I was voluntarily present and found in the United States at or near Phoenix, Arizona, on November 9, 2014. I did not obtain the express consent of the United States government to reapply for admission to the United States prior to returning to the United States.
For sentencing purposes, I admit I was convicted of Possession or Purchase for Sale of Designated Controlled Substances, a felony, on March 31 2000, in the Superior Court of California, San Juaquin County. I was represented by an attorney, and I was sentenced to two (2) years imprisonment.

(Id. at 8.)

         The Plea Agreement included a broad waiver of appellate and collateral attack rights, excluding only “an otherwise-preserved claim of ineffective assistance of counsel or of ‘prosecutorial misconduct' (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015)).”[1] (CR Doc. 26 at 4-5.)

         On August 6, 2015, Movant appeared with counsel and entered his guilty plea pursuant to the plea agreement, and the plea was found to have been knowingly, intelligently, and voluntarily entered. (Exhibit D, R.T. 8/6/15.)

         On November 2, 2015, Movant appeared for sentencing and was sentenced to 46 months in prison. (Exhibit E, R.T. 11/2/15.) The court found a base offense level 8, under U.S.S.G. § 2L1.2(a), but applied a 16 level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). After applying a three level reduction for acceptance of responsibility, the court relied on a total offense level 21. (Exhibit E, R.T. 11/2/15 at 3.) The Statement of Reasons reflected that the court adopted the Presentence Investigation Report without change, and made a finding of an Offense Level 21, Criminal History Category IV, a Guidelines range of 57 to 71 months, and applied a downward departure pursuant to U.S.S.G. § 5K3.1 (Early Disposition Program) as provided in the Plea Agreement. (CR Doc. 25.)

         C. PROCEEDINGS ON DIRECT APPEAL

         On November 9, 2015, Movant filed a pro se Notice of Appeal (CR Doc. 27), and appellate counsel was appointed (CR Docs. 29, 30). Eventually, appellate counsel filed a motion for voluntary dismissal, which was granted on April 18, 2016. (CR Doc. 37.)

         D. PRESENT FEDERAL HABEAS PROCEEDINGS

         Motion - Movant commenced the current case by filing his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 January 27, 2017 (Doc. 1). Movant's Motion asserts the following four grounds for relief:

(1) “Whether the judicial noticeable documents do not support the drug-trafficking sentence enhancement under USSG §2L.1.2”;
(2) “Whether Defense counsel was ineffective assistance of counsel when he failed to file a notice of appeal when asked to please do so by petitioner”;
(3) “Whether the validity of deportation order was valid under 8 U.S.C. 1326(D)”; and
(4) “Whether the plea was knowingly, intelligently, voluntarily entered.”

(Order 3/7/17, Doc. 3 at 1-2.)

         On May 11, 2017, Movant filed a Waiver (Doc. 7), waiving his attorney-client privilege as to the contested issues. A protective Order regarding information obtained under the waiver was entered on May 16, 2017 (Doc. 8).

         Response - On September 11, 2017, Respondent filed a Motion to Take Judicial Notice (Doc. 15), asking the Court to take judicial notice of various records from the Superior Court of California. Movant did not respond, and the Court granted the motion, and took judicial notice of the documents appended to the Motion. (Order 10/3/17, Doc. 18.)

         On September 11, 2017, Respondent filed its Response (Doc. 16). Respondent argues that Movant's plea was knowingly and voluntarily entered. Respondent argues that counsel was not ineffective in advising Movant because any challenges to the prior conviction or prior deportation would have been futile, and in light of Movant's waiver of appellate rights, counsel was not ineffective in failing to pursue a notice of appeal.[2]

         Respondent provides a Declaration of trial counsel (Exhibit C). Trial counsel relates: his extensive criminal defense experience (¶ 1), his representation of Movant and withdrawal on November 19, 2015 after learning of Movant's pro se notice of appeal (¶¶ 2-3), the facts of Movant's offense, prosecution and criminal history (¶6), his advice to Movant on the plea agreement (¶ 7), his investigation and advice to Movant on the sentencing enhancement and charges (¶¶ 8-9), his communication in Spanish with Movant on the Plea Agreement (¶ 10), his evaluation of the California conviction as a basis for the sentencing enhancement (¶ 11), and his denial of being asked to file a notice of appeal and his withdrawal after Movant's pro se notice (¶ 12).

         Reply - On October 23, 2017 Movant filed a Reply “and Motion for Default Judgment or Summary Judgment” (Doc. 20). The Court construed the filing as a request for entry of default which was denied as unsupported. The request for summary judgment was stricken as improperly filed under Federal Rule of Civil Procedure 56. (Order 10/26/17, Doc. 21.)

         In his Reply, Movant argues that he was misled into withdrawing his appeal, that his California conviction did not qualify as a crime of violence because 18 U.S.C. § 16(b) is unconstitutionally vague (citing Dimaya v. Lynch, 803 F.3d 1110 99th Cir. 2015, cert. granted, 2016 WL 3232911 (9/29/16)), and that Movant did not meet with trial counsel at the Federal Correctional Institute to sign an Affidavit approving the motion to withdraw his appeal. Movant further argues the merits of his claims.

         III. APPLICATION OF LAW TO FACTS

         A. GROUND 1 - SENTENCING ERROR

         1. Factual Background

         At sentencing, Movant was subjected to a 16 offense level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). At the time, § 2L1.2 provided:

(a) Base Offense Level: 8
(b) Specific Offense Characteristic
(1) Apply the Greatest: If the defendant previously was deported, or unlawfully remained in the United States, after--
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels if the conviction receives criminal history points under Chapter Four or by 12 levels if the conviction does not receive criminal history points;
(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels if the conviction receives criminal history points under Chapter Four or by 8 levels if the conviction does not receive criminal history points;
(C) a conviction for an aggravated felony, increase by 8 levels;
(D) a conviction for any other felony, increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels.

U.S.S.G. § 2L1.2 (eff. 11/1/15). See U.S.S.G. § 1B1.11 (“The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced.”) This was based on the following findings:

This Court's also enhancing by 16 levels based on the defendant being removed to his home country of Mexico back in December of 2003 after being convicted of a felony in March of 2000 for the possession for sale of a controlled substance. And in that case it was cocaine, and it was in violation of California state law. And the defendant was sentenced to two years of State prison. And this Court finds that the conviction is categorically a drug trafficking offense that's subjected to a 16-level enhancement, and that the offense is an aggravated felony. So pursuant to Sentencing Guideline Section 2L1.2(b)(1)(A)(i) the 16 levels will be added.

(Exhibit E, R.T. 11/2/15 at 3.)

         Thus, Petitioner's sentence was based on a determination that his 2003 conviction was for a “drug trafficking offense, ” within in the meaning of subsection (A)(i). Although the court referenced the offense being “an aggravated felony, ” its status as such was only relevant if the court was relying on subsection (C). Because subsection (A)(i) provided a greater enhancement than subsection (C), only (A)(i) is relevant.

         2. Parties Arguments

         Motion - Liberally, construed, in Ground 1, Movant argues that trial counsel was ineffective for failing to investigate and argue objections that his sentence was improperly enhanced under U.S.S.G. § 2L1.2 because the documents relied upon do not establish that his California conviction under California Health and Safety Code § 11351 qualified as a “drug trafficking offense.” (Motion, Doc. 1 at “5”, “14.”) In particular, he argues that California's possession for sale statute applies to sales involving remuneration other than money or valuables, and California has a more expansive lists of substances defined as narcotics. He further argues that the judicially noticeable documents (under the modified categorical approach) do not establish that Movant received money in exchange for the drugs, and that sufficient records of the California conviction were not presented to the trial court.

         In making his arguments, Movant relies upon decisions in Mathis v. United States, 136 S.Ct. 2243 (2016) (statute with overbroad alternative means of satisfying single element not divisible), Descamps v. United States, 133 S.Ct. 2276 (2013) (overbroad statute with indivisible elements not subject to modified categorical approach), and Taylor v. United States, 495 U.S. 575 (1990) (modified categorical approach can be used for overbroad statutes if divisible).[3]

         Response - Respondent argues that the claim is without merit because: (1) although § 11351 is categorically broader than the Guideline definition of a drug trafficking offense, under the modified categorical approach there was reasonable certainty that Movant was convicted of possession or purchase for sale of cocaine under § 11351, which is a drug trafficking offense. Moreover, Movant had reviewed the prior with trial counsel and proffered no basis on which application of the Guideline could be avoided, and still has not done so. Accordingly, further research was not required, the sentence was proper, and any objection would have been futile. (Response, Doc. 16 at 10-13.)

         Reply - In his Reply, Movant argues that his conviction would not qualify under the modified categorical approach because documentation from the California plea colloquy and sentencing proceedings would show that Movant “did not admit to the type of controlled substance or to any elements or factual allegations to sale or possession.”

         He further argues that § 11351 did not qualify as an “aggravated felony” under Dimaya v. ...


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