IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
October 31, 2005
IGNACIO MENDOZA, MOVANT,
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 Ignacio Mendoza, a federal prisoner incarcerated at Eloy Detention Center in Eloy, 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. Mendoza did not file a reply. Having considered all of the papers filed by the parties, the Court DENIES Mendoza's motion to vacate, set aside or correct his sentence.
On June 11, 2003, the Oakland police arrested Mendoza and Joseph Aguilar for selling approximately 533 grams of heroin to an undercover officer. On June 13, 2003, the United States filed a complaint in this district charging Mendoza and Aguilar with violations of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. On July 10, 2003, a grand jury indicted both Mendoza and Aguilar on two counts for violations of 21 U.S.C. § 846 (Conspiracy to Possess with Intent to Distribute) and 21 U.S.C. § 841(a)(1) (Possession with Intent to Distribute Heroin).
In the months that followed, Mendoza met with his defense counsel several times to discuss his case. (Defense Counsel Dec. ¶ 4). On more than one occasion, Mendoza explained to counsel his involvement in the offense. (Id. ¶ 6). Mendoza made the following admissions: that he knew Aguilar; that Aguilar informed him that someone was interested in buying twenty ounces of heroin; that Mendoza agreed to supply the twenty ounces to Aguilar for sale; that Mendoza determined the price, contacted the supplier and received the heroin within two weeks; that Mendoza provided a sample to Aguilar at the request of the buyer; that the buyer was satisfied with the quality of the product; that Aguilar arranged the date and place for the sale; that Mendoza agreed to drive Aguilar to the designated meeting place; that Mendoza packaged the heroin and placed it in a trailer attached to the back of his truck; that when they arrived at the meeting place, Mendoza exited the truck to present the buyer with the heroin; that Mendoza was arrested while removing the heroin from the trailer. (Id.).
Counsel and Mendoza also discussed the option of entering into a plea agreement and Mendoza's safety valve eligibility, which would allow him to receive a sentence below the five year statutory mandatory minimum. (Id. ¶ 5). Counsel explained that, to be eligible, Mendoza would have to make a proffer statement to the government truthfully acknowledging and describing his role in the offense. (Id.).
On October 6, 2003, Mendoza plead guilty to count one of the indictment, conspiracy to possess with intent to distribute 533 grams of heroin, in exchange for a dismissal of the possession charge. The terms of the plea agreement were as follows:
(1) Mendoza would not file a collateral attack on his conviction or sentence, including a petition under 28 U.S.C. § 2255, at any time in the future, except for a claim of ineffective assistance of counsel in connection with the negotiation of the plea agreement or the entry of his guilty plea; (2) Mendoza would not request any other adjustments or reductions in the offense level or a downward departure of any kind. (Resp't Ex. 4 at ¶ 5).
On November 17, 2003, Probation Officer Charles Mabie prepared a pre-sentence investigation report concluding that Mendoza fell within the guideline range of forty-six to fifty-seven months, and met the "safety valve" provisions under 18 U.S.C. § 3553(f) and Sentencing Guideline § 5C1.2. Officer Mabie identified no other factors that would warrant an upward or downward departure. He recommended a sentence of forty-six months.
On February 25, 2004, Mendoza gave a proffer statement to government agents. At the time, Mendoza did not admit to supplying Aguilar with heroin. On March 8, 2004, Aguilar gave a proffer statement to Drug Enforcement Administration (DEA) agents. Aguilar claimed Mendoza supplied the heroin for the transaction and also had given Aguilar a small sample of heroin to give to the buyer.
Because of Mendoza and Aguilar's conflicting statements, the Assistant United States Attorney (AUSA) informed defense counsel that one or both of the defendants were not being truthful and, therefore, neither qualified for sentence reduction under the safety valve provision. However, the AUSA agreed to provide Mendoza an opportunity to give a second proffer statement.
On May 12, 2004, Mendoza gave a second proffer statement. During this interview, Mendoza admitted to procuring the heroin, supplying Aguilar with a sample, setting the price, packaging the heroin, driving Aguilar to the meeting place and delivering the drugs to the buyer. Prior to the sentencing hearing, the AUSA informed defense counsel that Mendoza was not eligible for the full benefit of the safety valve reduction because he had been untruthful in his first proffer statement. The AUSA recommended that the Court impose a mid-range sentence.
On June 7, 2004, the Court found Mendoza eligible for the safety valve provision and imposed a sentence of forty-eight months of imprisonment.
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).
Section 2255 was "intended to alleviate the burden of habeas corpus petitions filed by federal prisoners in the district of confinement by providing an equally broad remedy in the more convenient jurisdiction of the sentencing court." United States v. Addonizio, 442 U.S. 178, 185 (1979). Under 28 U.S.C. § 2255, a federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States. United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).
Mendoza requests the modification of his sentence based on ineffective assistance of counsel for (a) failure to investigate, present and seek a downward departure for mitigating family ties evidence; (b) failure to seek correct application of the Sentencing Guidelines; (c) failure to seek downward departure for "minor role;" and (d) failure to seek downward departure for aberrant behavior. Mendoza also seeks a modification of his sentence because of his post-sentencing rehabilitation and recent developments in the law.
I. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is cognizable under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. Strickland establishes a two-part test. Id.
First, a defendant claiming ineffective assistance of counsel "must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. at 687. The defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. Judicial scrutiny of counsel's performance must be highly deferential, and a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
Second, the defendant must demonstrate the existence of prejudice by showing that there is a reasonable probability that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. It is unnecessary for a federal court considering an ineffective assistance claim to address the prejudice prong of the Strickland test if the movant cannot establish incompetence under the first prong. Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).
A. Failure to Investigate and Present Mitigating Evidence
Mendoza asserts that counsel was ineffective for failing to investigate and present his family circumstances as mitigating evidence and as grounds for a downward departure.
Although the Guidelines are now advisory, at the time of Mendoza's sentencing, the Ninth Circuit held that Sentencing Guideline § 5H1.6 discouraged a departure based on family ties and that, when a factor is discouraged, "the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." United States v. Klimavicius-Viloria, 144 F.3d 1249, 1267 (9th Cir. 1998); U.S.S.G. § 5H1.6 ("Family ties and responsibilities . . . are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range."). The Ninth Circuit had further denied downward departures where defendants did not show they were "irreplaceable caretakers." United States v. Leon, 341 F.3d 928, 932 (9th Cir. 2003) (citing United States v. Miller, 991 F.2d 552, 553 (9th Cir. 1993); United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir. 1991)).
Defense counsel made a strategic decision to secure Mendoza a plea agreement and seek safety valve eligibility, which she believed would provide her client the greatest benefit. (Defense Counsel Dec. ¶ 4). In the plea agreement, Mendoza agreed not to seek any other downward departures. Considering the limited availability of downward departures for family circumstances, this was a reasonable and appropriate decision. Although counsel investigated Mendoza's family circumstances and presented them at his sentencing, her client was bound by the terms of the plea agreement and, thus, she could not make an argument for downward departure. (Id. at ¶ 14.).
Mendoza contends that he was the sole irreplaceable caretaker and sole source of economic support for five minor children. Yet, Respondent observes that, although Mendoza provides some financial support for his children, they are living with their mothers, one of whom is receiving financial aid. (Resp't Ex. 2 ¶ 38-39). Significantly, Respondent notes that Mendoza fails to provide any evidence that other family members are not able to support his children. Because the defendant bears the burden of proving the appropriateness of a downward departure, United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990), Mendoza's case did not meet the level of extraordinariness required for departure based on family circumstances. Thus, he was not prejudiced by the decision not to seek such a departure.
Accordingly, defense counsel made a reasonable, prudent decision to obtain a plea agreement and seek safety valve eligibility for her client, and her decision did not prejudice Mendoza.
B. Failure to Seek Correct Application of Sentencing Guidelines
Mendoza contends that counsel provided ineffective assistance by failing to request a laboratory report on the actual weight of the heroin, the quantity utilized to calculate the base offense level for Sentencing Guideline purposes.
Defense counsel's decision not to request a lab report was not deficient. Mendoza provides no factual basis which would have led counsel to challenge the drug quantity. Indeed, counsel relied, in part, on Mendoza's own statements to her that he had procured and packaged twenty ounces of heroin. (Defense Counsel Dec. ¶ 17); see Rosa v. United States, 170 F. Supp.2d 388, 407 (S.D.N.Y. 2001) (finding counsel was not ineffective for failing to object to drug quantity where defendant admitted to a certain quantity in his plea agreement). Counsel also reasonably relied on information contained in DEA and police reports. (Defense Counsel Dec. ¶ 17). Defense counsel made a strategic decision not to have the drugs re-weighed and, instead, focused her efforts on the plea agreement and safety valve eligibility. Furthermore, Mendoza does not establish that he suffered any prejudice as a result of counsel's decision; he fails to provide a basis for his suspicion that a re-weighing would have decreased the drug quantity.
Therefore, defense counsel's decision was reasonable and did not cause any prejudice to her client.
C. Failure to Seek Downward Departure for "Minor Role"
Mendoza contends that counsel was ineffective for failing to seek a downward departure for his minor role in the conspiracy.
Section 3B1.2 of the Sentencing Guidelines provides that a defendant's offense level for sentencing purposes should be decreased by four levels if he or she was a "minimal participant" and by two levels if a "minor participant" in the criminal activity. The commentary to this section explains that "minimal role" refers to defendants who are "plainly among the least culpable of those involved in the conduct of a group." Phylis Skloot Bamberger and David J. Gottlieb, Practice Under the Federal Sentencing Guidelines § 2[D]i (Supp. 1996). The defendant carries the burden of proving his minor role in the offense by a preponderance of the evidence. Howard, 894 F.2d at 1090.
Mendoza's assertion that he played a minor role is contradicted by the evidence in the record. Mendoza informed defense counsel that he supplied Aguilar with the heroin, drove Aguilar to the designated meeting place and presented the heroin to the buyer for sale.
Mendoza claims he is entitled to a § 3B1.2 departure because he was only acting as a drug courier. However, Respondent correctly observes that the Ninth Circuit has held that a defendant's courier status alone does not automatically warrant departure. Ajala v. United States Parole Comm'n, 997 F.2d 651, 656 (9th Cir. 1993). Courts have denied downward departures to courier defendants where additional factors showed they were not minor participants. See United States v. Davis, 36 F.3d 1424, 1436-37 (9th Cir. 1994); United States v. Zweber, 913 F.2d 705, 710 (9th Cir. 1990), superseded by statute on other grounds, United States v. Savage, 67 F.3d 1435, 1443 (9th Cir. 1995). From Mendoza's own statements in his plea agreement it is clear that he was not a mere courier.
Thus, defense counsel made a reasonable decision not to pursue a downward departure for a minor role but rather recommended a plea agreement which required Mendoza to refrain from requesting such downward departures and focused her efforts on Mendoza's safety valve eligibility. Mendoza did not play a minor role and was not prejudiced by counsel's decision not to seek such a downward departure.
D. Failure to Seek Downward Departure for Aberrant Behavior
Mendoza argues that he was deprived of effective assistance in sentencing, due to defense counsel's decision not to seek a downward departure for aberrant behavior under U.S.S.G. § 5K2.20. Again, the plea agreement prevented Mendoza and his counsel from seeking such a departure. In any event, Mendoza was not eligible for it.
Courts may make a downward departure for aberrant behavior if the defendant, without significant planning, committed a single act of limited duration 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 (citations omitted). Here, Mendoza plead guilty to conspiracy to possess with intent to distribute 533 grams of heroin, a drug trafficking offense with a mandatory minimum prison term of five years. Furthermore, defense counsel was also aware of Mendoza's prior felony conviction for the possession of a controlled substance. (Defense Counsel Dec. ¶ 16). Thus, counsel could not argue convincingly that Mendoza had an otherwise law abiding life.
Therefore, defense counsel made a reasonable decision that Mendoza was ineligible for a downward departure for aberrant behavior, and her decision did not prejudice Mendoza.
II. Downward Departure for Post-Sentencing Rehabilitation
Mendoza argues that his post-sentencing rehabilitation is grounds for a downward departure. "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 Mendoza. Therefore, Mendoza's rehabilitative efforts are not grounds for a downward departure.
III. Retroactive Application of Blakely and Booker
Mendoza argues that new constitutional law established in Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 125 S.Ct. 738 (2005), justifies a downward departure. Under § 2255, Mendoza may ask to have his sentencing reviewed if the Supreme Court chooses to make a new right "retroactively applicable to cases on collateral review." 28 U.S.C. § 2255. However, the Ninth Circuit has ruled that Blakely does not apply retroactively to cases on collateral review. Cook v. United States, 386 F.3d 949, 950 (9th Cir. 2004). In Booker, the Supreme Court stated that its directive would apply to "all cases on direct review." 125 S.Ct. at 769. The Ninth Circuit has held that Booker does not apply retroactively to cases on collateral review where convictions were final when Booker was published. United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir. 2005). Because Booker and Blakely do not apply retroactively, Mendoza's § 2255 motion on this ground must be denied.
For the foregoing reasons, Mendoza's motion under 28 U.S.C. § 2255 is DENIED. The Clerk shall close the file.
IT IS SO ORDERED
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