United States District Court, D. Arizona
REPORT & RECOMMENDATION ON
MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE
James
F. Metcalf United States Magistrate 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 December 19, 2017 (Doc. 1). On May 21, 2018, Respondent
filed its Response (Doc. 5). Movant filed a Reply on June 8,
2018 (Doc. 9).
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 AND PROCEEDINGS AT TRIAL
Movant's
written Plea Agreement provided a statement of factual basis
reflecting that Movant led (along with others) a drug
trafficking organization from January, 2013 to December 2,
2015, which smuggled drugs from Mexico, sold 5, 531 grams of
heroin and 803 grams of methamphetamines in the United
States, and exported the resulting funds back to Mexico to
hide them. (Exhibit A, Plea Agreement at 10-12.) (Exhibits to
the Response, Doc. 5, are referenced herein as “Exhibit
___.”) (Filings in the underlying criminal case,
CV-15-1501-PHX-SRB, are referenced herein as “CR Doc.
___.”)
B.
PROCEEDINGS AT TRIAL
Movant
and his co-conspirators were indicted in this Court on
December 2, 2015. Movant was charged with: Count 1 -
Conspiracy to Possess With Intent to Distribute a Controlled
Substance in violation of 21 U.S.C. Section 846; and Count 3
- Money Laundering Conspiracy in violation of 18 U.S.C.
§ 1956(h). (CR Doc. 10, Indictment.)
Movant,
being represented by counsel, eventually entered into written
Plea Agreement (Exhibit A), wherein he agreed to plead guilty
to the charges, in exchange for an agreement to a
recommendation of sentencing at the low end of the guideline
range, a stipulation on the amount of drugs involved, and a
two or three offense level reduction for acceptance of
responsibility.
The
Plea Agreement included the following waiver:
6.
WAIVER OF DEFENSES AND APPEAL RIGHTS
The defendant waives (1) any and all motions, defenses,
probable cause determinations, and objections that the
defendant could assert to the indictment or information; and
(2) any right to file an appeal, any collateral attack, and
any other writ or motion that challenges the conviction, an
order of restitution or forfeiture, the entry of judgment
against the defendant, or any aspect of the defendant's
sentence, including the manner in which the sentence is
determined, including but not limited to any appeals under 18
U.S.C. § 3742 (sentencing appeals) and motions under 28
U.S.C. §§ 2241 and 2255 (habeas petitions), and any
right to file a motion for modification of sentence,
including under 18 U.S.C. § 3582(c). This waiver shall
result in the dismissal of any appeal, collateral attack, or
other motion the defendant might file challenging the
conviction, order of restitution or forfeiture, or sentence
in this case. This waiver shall not be construed to bar an
otherwise-preserved claim of ineffective assistance of
counsel or of "prosecutorial misconduct" (as that
term is defined by Section 11.B of Ariz. Ethics Op. 15-01
(2015)).
(Exhibit A, Plea Agreement at 5-6 (emphasis in original).)
Movant
entered his guilty plea on July 29, 2016 before U.S.
Magistrate Judge Burns. (Exhibit C, R.T. 7/29/16.) The plea
colloquy included the following exchange:
THE COURT: Now, if I do recommend to [the district judge]
that your guilty pleas be accepted, once she accepts them,
after that you won't be permitted to withdraw from your
guilty plea unless you can demonstrate a fair and just reason
for doing so. And if she accepts your guilty pleas and then
sentences you pursuant to these plea agreements, there is a
paragraph in your plea agreements entitled Waiver of Defenses
and Appeal Rights. What that tells you is that you have given
up any right to challenge these charges against you and you
have given up your right to appeal. Normally a person who is
convicted of a crime would have the right to appeal their
judgment and sentence to a higher court and also may have the
right to come back before this Court in a collateral
proceeding to challenge that judgment and sentence by way of
motion or petition.
You are giving up this right. Do you understand this?
THE INTERPRETER: Yes by both.
THE COURT: That waiver, however, would not act to preclude a
later claim of ineffective assistance of counsel or
prosecutorial misconduct.
(Id. at 12.) The Court accepted the guilty plea on
September 26, 2016, but deferred acceptance of the plea
agreement. (CR Doc. 445, Order 9/29/16.)
The
Final Presentence Investigation Report (CR Doc. 708)
calculated a Base Offense Level of 32 under U.S.S.G. §
2S1.1, calculating his Drug Quantity, using a conversion to
marihuana equivalent of 1 to 1000 for heroin and 1 to 2000
for methamphetamine, pursuant to U.S.S.G. § 2D1.1. Thus
his 5.531 kilograms of heroin equated to 5, 531 kilograms of
marihuana, and his 803.0 grams of methamphetamine equated to
1, 606 kilograms of marihuana, for a total of 7, 137
kilograms of marihuana equivalent. Two levels were added
under U.S.S.G. § 2S1.1(b)(2)(B), because his conviction
was under 18 U.S.C. § 1956. Four levels were added for
leadership role. Three levels were deducted for acceptance of
responsibility, resulting in a total offense level 35. Movant
had a criminal history score of zero, and thus was a Criminal
History Category I. The report calculated a guidelines range
of 168 to 210 months. Based on the Plea Agreement, the Report
recommended concurrent sentences of 168 months on both Counts
1 and 3.
Defense
counsel filed a Sentencing Memorandum (CR Doc. 592), voicing
no substantive objection to the presentence report, but
requesting a ten year sentence based on
“Defendant's history, the nature and circumstances
of the offense, minimal criminal history and acceptance of
responsibility, a sentence of 7 to 10 years imprisonment
represents a just and reasonable sentence for Mr.
Zavala-Algandar… a significant penalty for
Defendant's first felony conviction.” (Id.
at 1-2.) Like the Presentence Investigation Report, the
Sentencing Memorandum calculated “an advisory guideline
range of 168 to 210 months imprisonment, based on a Total
Offense Level 35 and Criminal History Category I.”
Movant
appeared for sentencing on December 20, 2016. At the outset,
the parties advised the Court that the government believed
Movant's base offense level had to be increased by two
points under U.S.S.G. § 2D1.1(b)(5) because of his
“knowing importation of methamphetamine.”
(Exhibit B, R.T. 12/20/16 at 2.) The result was to increase
the guidelines sentencing range to 210 to 262 months.
(Id. at 3.) Movant conferred with counsel, and
counsel advised that Movant wished to proceed under the Plea
Agreement. (Id. at 5-6.) The Government recommended
sentencing at the low end of the corrected range.
(Id. at 16.) Ultimately, the Court declined to
depart from the Guidelines, and imposed concurrent sentences
of 210 months on both counts. (Id. at 22.)
C.
PROCEEDINGS ON DIRECT APPEAL
Movant
did not file a direct appeal. (Motion, Doc. 1 at 1.)
D.
PRESENT MOTION TO VACATE
Motion
- Movant commenced the current case by filing his Motion to
Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C.
§ 2255 on December 19, 2017 (Doc. 1). Movant's
Motion asserts the following three grounds for relief: Ground
One - that based on the volume of drugs, his Base Offense
Level should have been 32 not 34, and the imposition of a
higher range was a violation by the Court of the Plea
Agreement, in violation of Fed. R. Crim. P. 11(c)(1)(C), and
Due Process; Ground Two - that counsel was ineffective for
failing to raise the breach; and Ground Three - that his Plea
Agreement was breached by the Government because of the error
in the Base Offense Level.
Response
- On May 21, 2018, Respondent filed its Response (Doc. 5),
arguing that Movant waived his right to bring Grounds One and
Three as a result of his guilty plea, and waived his right to
bring the instant collateral attack by the terms of his
written Plea Agreement. Respondent argues that Movant's
plea and entry into the Plea Agreement were made knowingly
and voluntarily, and thus his waiver is enforceable.
Respondent further argues that Movant's sentence was in
accordance with the terms of the Plea Agreement, thus there
was no breach, and his waiver is thus enforceable. With
regard to the ineffective assistance of counsel claim in
Ground Two, Respondent argues that Movant can show neither
deficient performance nor prejudice because the sentencing
was proper.
Reply
- On June 8, 2018 Movant filed a Reply (Doc. 9). Movant
argues the merits of his challenge to the calculation of the
Base Offense Level, that a breach occurred and thus his
waiver is not enforceable, and counsel was ineffective for
failing to enforce the Plea Agreement.
III.
APPLICATION OF LAW TO FACTS A. MERITS OF GROUNDS ONE AND
THREE
Respondents
rely upon a waiver defense to dispose of Grounds One and
Three, and address the ineffective assistance claim in Ground
Two on the merits. Because the validity of the waiver and the
resolution of the ineffectiveness claim rely upon the nature
of Movant's underlying challenge to his sentence, and
because the undersigned ultimately concludes that he waiver
defense fails, the undersigned addresses at the outset the
alleged sentencing errors asserted in Grounds One and Three.
Movant's
contention is that under the terms of his Plea Agreement, the
parties stipulated to the amount of drugs, and based on this
his Base Offense Level should have been 32 not 34. In Ground
One he argues this resulted in a denial of Due Process and a
violation of Federal Rule of Criminal Procedure 11(c)(1)(C).
In Ground Three, Movant argues it was a breach of his Plea
Agreement.
1.
Guidelines Methodology
Movant's
Motion and Reply suggest that Movant is confused by the
terminology and process utilized in reaching an advisory
sentence under the Sentencing Guidelines. ...