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Moreno v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


June 22, 2005

LEONEL GARCIA MORENO, MOVANT,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER DENYING MOVANT'S § 2255 MOTION

Movant Leonel Garcia Moreno, a federal prisoner incarcerated at Elroy Detention Center in Elroy, Arizona, moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. Respondent the United States of America opposes the motion. Having considered the parties' papers, the Court DENIES Movant's motion to vacate, set aside or correct his sentence.

BACKGROUND

On November 20, 2003, an indictment was filed charging Movant with possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(I).

On February 2, 2004, Movant plead guilty to possession with intent to distribute approximately 1.5 kilograms of heroin and entered into a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (B). In that agreement, Movant stated, inter alia, that he would "not ask for any other adjustment to or reduction in the offense level or for a downward departure of any kind." Respondent agreed to recommend a sentence at the low end of Movant's Guidelines range. The Presentence Report (PSR) calculated Movant's offense level to be 27, and his criminal history to be category I. On June 14, 2004, following the recommendations of the PSR and the parties' plea agreement, the Court found that Movant's offense level was 27, and his criminal history was category I. The Court sentenced Movant to seventy months imprisonment, which was at the low end of the Guidelines range.

On December 22, 2004, Movant filed this motion under 28 U.S.C. § 2255 on the grounds that (1) he was denied effective assistance of counsel, and (2) he has made significant post-conviction rehabilitation efforts.

LEGAL STANDARD

A prisoner in custody under sentence of a federal court may collaterally attack the validity of his sentence by a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Under § 2255, the sentencing court is authorized to grant relief if it concludes that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."

The remedy available under § 2255 is as broad and comprehensive as that provided by a writ of habeas corpus. United States v. Addonizio, 442 U.S. 178, 184-85 (1979). However, it does not encompass all claimed errors in conviction and sentencing. Id. at 187. An error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. Id. at 184 (footnote omitted).

DISCUSSION

I. Ineffective Assistance of Counsel

Movant argues that he was deprived of effective assistance of counsel in sentencing, due to his counsel's decision not to seek downward departures for aberrant behavior and deportable alien status. U.S.S.G. §§ 5K2.20, 5K2.0. Respondent contends that Movant waived his right to seek downward departures in his plea agreement, and that Movant's counsel's decision not to seek downward departures was objectively reasonable and caused Movant no prejudice.

The Sixth Amendment right to counsel guarantees effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on an ineffective assistance of counsel claim, a defendant must show (1) that counsel's performance was deficient, and (2) that the deficient performance resulted in prejudice to the defendant. Id.

To show that counsel's performance was deficient, a defendant must show that the performance fell below an objective standard of reasonableness. Id. at 688. The relevant inquiry is not what counsel could have done, but rather whether the choices made by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689.

To show that counsel's deficient performance resulted in prejudice to a defendant, the defendant must show that the errors were so serious as to deprive the defendant of a trial result that is reliable. Id. at 688. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694.

A. Waiver of Right to Seek Downward Departures

Respondent argues that, in Movant's plea agreement, he waived his right to seek downward departures, and he was bound by this waiver.

Plea agreements, despite being matters of criminal law, are "contractual by nature and are measured by contract law standards." In re Ellis, 356 F.3d 1198, 1207 (9th Cir. 2004) (quoting United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002)). The premise of this approach is that plea bargains are negotiated on a "bargained-for quid pro quo" basis. United States v. Escamilla, 975 F.2d 568, 571 (9th Cir. 1992).

Here, the plea agreement signed by Movant stated that he would "not ask for any other adjustment to or reduction in the offense level or for a downward departure of any kind." Movant was bound by this valid waiver, and Movant's counsel could not have sought downward departures without violating the agreement.

B. Failure to Seek Downward Departure for Aberrant Behavior

Movant argues that his counsel erred in not seeking a downward departure for aberrant behavior. Courts may make a downward departure for aberrant behavior if the defendant committed a single act that represented a "marked departure from an otherwise law-abiding life." U.S.S.G. § 5K2.20(b). However, such a departure is not available if the crime is a "serious drug trafficking offense," which is defined as "any controlled substance offense under title 21 . . . that provides for a mandatory minimum term of imprisonment of five years of greater." U.S.S.G. § 5K2.20(c)(3), cmt. 1. Here, Movant plead guilty to possession of one or more kilograms of heroin with intent to distribute, a drug trafficking offense with a mandatory minimum prison term of ten years. Therefore, he was ineligible for a downward departure for aberrant behavior. Counsel's decision not to seek such a downward departure was objectively reasonable, and did not result in prejudice to Movant.

C. Failure to Seek Downward Departure for Alien Status

Movant also argues that his counsel erred in not seeking a downward departure for his deportable alien status. The Court may depart from the Guidelines Range if it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b)(1). The Ninth Circuit has held that deportable alien status may be such a mitigating circumstance. United States v. Charry Cubillos, 91 F.3d 1342, 1344 (9th Cir. 1996). In Charry Cubillos, the Ninth Circuit ruled that a district court could take alien status into account in sentencing, but only if the defendant's alien status

(1) had a "substantial" impact on the sentence severity, (2) the sentencing court has "a high degree of confidence" that this impact would apply "for a substantial portion of the defendant's sentence," and (3) the court believes that "the greater severity is undeserved." Id. at 1344. The Ninth Circuit found that the district court's application of a downward departure in Cubillos' sentencing did not meet these requirements, emphasizing that downward departures for factors not mentioned in the Guidelines would be "highly infrequent." Id. at 1345.

Here, Movant acknowledges that he is a deportable alien, but submits no evidence that his deportable alien status had a substantial impact on his sentence severity, that this impact would apply for a substantial portion of his sentence, or that this greater severity is undeserved. It is very unlikely that a downward departure for deportable alien status, granted only in "highly infrequent" cases, would have been granted here. See id. Thus, Movant's counsel's decision not to seek a downward departure for deportable alien status was reasonable, and there is not a reasonable probability that this decision resulted in prejudice to Movant.

II. Downward Departure for Rehabilitation upon Resentencing

Movant also argues that his post-conviction rehabilitation is grounds for a downward departure upon resentencing. Movant will not be resentenced, because there are no grounds to do so. Even if he were resentenced, however, he would not receive a downward departure for post-conviction rehabilitation. "Post-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment for the instant offense are not an appropriate basis for a downward departure when resentencing the defendant for that offense." U.S.S.G. § 5K2.19. This provision, which took effect in November, 2000, postdates and supersedes the case law cited by Movant.

Thus, Movant's good behavior while incarcerated is not grounds for a downward departure.

CONCLUSION

For the foregoing reasons, Movant's motion to vacate, set aside or correct his sentence is DENIED.

IT IS SO ORDERED.

20050622

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