United States District Court, N.D. California, San Jose Division
ORDER DENYING § 2255 MOTION AS TO FOURTH GROUND
FOR RELIEF Re: Dkt. No. 1 (16-CV-02538-LHK) Re: Dkt. No. 423
H. KOH United States District Judge
Jaime Toro (“Petitioner”) has filed a Motion to
Vacate, Set Aside, or Correct his Sentence pursuant to 28
U.S.C. § 2255. ECF No. 423 (“Mot.”).
Petitioner is currently serving a 120 month statutory
mandatory minimum sentence of imprisonment for his July 8,
2015 conviction for possession with intent to distribute 50
grams or more of methamphetamine.
§ 2255 Motion seeks relief on the following four
grounds: (1) Petitioner's sentence was too severe
“for mere transportation” of methamphetamine; (2)
Petitioner's “limited English” prevented him
from “fully understanding” the
“implications” of Petitioner's plea
agreement; (3) Petitioner's trial counsel was ineffective
because counsel did not provide him advice on the extent of
Petitioner's rights, the rights Petitioner was giving up,
and Petitioner's eligibility for potential benefits (such
as the Fast Track Program for Deportable Aliens); and (4)
Petitioner's trial counsel was ineffective because
counsel did not file an appeal. Id. at 5. On
September 8, 2016, the Court denied Petitioner's Motion
with respect to Petitioner's first, second, and third
asserted grounds for relief. ECF No. 439 (“Prior
Order”). In the instant order, the Court addresses
Petitioner's fourth asserted ground for relief. Having
considered the parties' briefing, the relevant law, and
the record in this case, Petitioner's Motion with respect
to Petitioner's fourth ground for relief is DENIED.
& PROCEDURAL BACKGROUND
Charges Against Defendant and Guilty Plea
December 4, 2013, a federal grand jury returned an indictment
which charged Petitioner with (1) conspiracy to distribute 50
grams or more of methamphetamine in violation of 21 U.S.C.
§§ 841 & 846; and (2) possession with intent to
distribute 50 grams or more of methamphetamine in violation
of 21 U.S.C. § 841. ECF No. 117 at 7.
April 8, 2015, Petitioner pled guilty to possession with
intent to distribute 50 grams or more of methamphetamine. ECF
No. 314 (“Plea Agmt.”). Petitioner's guilty
plea was pursuant to a Federal Rule of Criminal Procedure
11(c)(1)(C) binding plea agreement with the Government.
See Fed. R. Crim. P. 11(c)(1)(C) (a “plea
agreement may specify that an attorney for the government
will agree . . . that a specific sentence or sentencing range
is the appropriate disposition of the case, ” which
“binds the court once the court accepts the plea
agreement”). Petitioner and the Government agreed to
the following recommended sentence: “120 months of
imprisonment, five years of supervised release (with
conditions to be fixed by the Court), and a $100 special
assessment.” Plea Agmt. at 5. Petitioner's sentence
of 120 months of imprisonment is the statutory mandatory
minimum for possession with intent to distribute 50 grams or
more of methamphetamine. See 21 U.S.C. §
841(b)(1)(A)(viii). The statutory mandatory minimum applied
to Petitioner because Petitioner pled guilty to possession
with intent to distribute 327.65 grams of methamphetamine,
over six times the quantity that triggers the 120 month
statutory mandatory minimum sentence. Plea Agmt. at 3.
Terms of Plea Agreement and Change of Plea Hearing
excerpts of Petitioner's plea agreement are reproduced
agree that I am guilty of the offense of which I am pleading
guilty, and I agree that the following facts are true:
a. The following is a summary of evidence that I possessed
methamphetamine with the intent to distribute it.
b. On September 5, 2013, at approximately 6:56 p.m., I called
Efrain Canchola and asked if he had something there. I asked
how it was, and Canchola said it was clean, white and
transparent. I asked Canchola to make two packages of 112 and
one package of 224. I said I was going to come pick them up
right now. Canchola asked how long. I said 10 minutes at
c. Law enforcement officers monitored the court authorized
pole camera at Canchola's residence . . . and at
approximately 7:02 p.m., they observed me walk into the
residence. Approximately seven minutes later, I departed the
residence. Canchola delivered the methamphetamine to me when
I was at his residence. I intended to distribute the
methamphetamine to others.
d. Later that evening, a Contra Costa deputy stopped my car .
. . and seized three cellophane wrapped sandwich baggies that
e. The DEA laboratory determined that the substance seized
from this car was a mixture weighing approximately 331.3
grams (net weight) that contained d-methamphetamine
hydrochloride with a purity of 98.9 percent. The amount of
actual (pure) methamphetamine was approximately 327.65 grams.
f. On September 12, 2013, law enforcement officers executed a
search warrant at Canchola's residence . . . [and]
Canchola was arrested at the scene.
g. Law enforcement officers found approximately two pounds of
methamphetamine in a drawer in a bedroom. The agents also
seized from the residence a ledger, and the last three
entries next to the name “Jamie” [sic] match the
quantities (in grams) of the order for drugs I gave Canchola
on September 5, 2013.
h. I stipulate and agree that the total weight of actual
(pure) methamphetamine attributable to me for the purpose of
determining relevant conduct is approximately 327.65 grams.
agree to give up all rights that I would have if I chose to
proceed to trial, including the rights to a jury trial with
the assistance of an attorney; to confront and cross-examine
government witnesses; to remain silent or testify; to move to
suppress evidence or raise any other Fourth or Fifth
Amendment claims; to any further discovery from the
government; and to pursue any affirmative defenses and
present evidence. I waive any defense based on venue, and I
agree that this prosecution may be brought in the Northern
District of California.
agree to give up my right to appeal my conviction, the
judgment, and any orders of the Court. I also agree to waive
any right I have to appeal any aspect of my sentence,
including any orders relating to forfeiture and/or
agree not to file any collateral attack on my conviction or
sentence, including a petition under 28 U.S.C. § 2255 or
28 U.S.C. § 2241, except that I reserve my right to
claim that my counsel was ineffective in connection with the
negotiation of this Agreement or the entry of my guilty plea.
I also agree not to seek relief under 18 U.S.C. § 3582.
* * *
confirm that I have had adequate time to discuss this case,
the evidence, and the Agreement with my attorney and that my
attorney has provided me with all the legal advice that I
confirm that while I considered signing this Agreement, and
at the time I signed it, I was not under the influence of any
alcohol, drug, or medicine that would impair my ability to
understand the Agreement.
confirm that my decision to enter a guilty plea is made
knowing the charges that have been brought against me, any
possible defenses, and the benefits and possible detriments
of proceeding to trial. I also confirm that my decision to
plead guilty is made voluntarily, and no one coerced or
threatened me to enter into this Agreement.
confirm that I read this entire Agreement with the assistance
of a Spanish language interpreter and in the presence of my
Agmt. at 3-7. The agreement was signed by a certified Spanish
language interpreter, who stated that he had translated the
plea agreement into Spanish for Petitioner. Id. at
pled guilty at a change of plea hearing on April 8, 2015. ECF
No. 313 at 1. A certified Spanish language interpreter
interpreted the hearing for Petitioner. Nonetheless,
Petitioner chose to respond to numerous questions in English
without the assistance of an interpreter. An excerpt of the
change of plea colloquy is reproduced below.
Court: All right. Ms. Sakamoto, would you please swear in Mr.
Clerk: Yes, Judge. Sir, would you please raise your right
Arana Del Toro, Defendant, was sworn)
Clerk: Thank you, sir.
statements attributed to Petitioner were through the Spanish
interpreter unless otherwise noted.)
Court: Mr. Del Toro, I have some questions to ask you. If you
need me to repeat or explain anything, would you please tell
(in English) Okay.
Court: If you need to speak with your attorney before
answering any question, would you please do so?
(in English) Okay.
Court: You've taken the oath, which is a promise to tell
the truth. If you make an untrue statement during today's
proceedings, the Government can use that statement to
prosecute you for perjury. Do you understand that?
(in English) Yes.
Court: What is your true name?
(in English) ...