Zavala-Algandar v. United States

          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. ...