Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona ALISON S. BACHUS Assistant U.S. Attorney Arizona State Bar No. 023884 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, v. Jose Angel Romero-Lopez, Defendant/Movant. RESPONSE IN OPPOSITION TO AMENDED MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 No. CR-04-1008-PHX-JAT No. CV-06-1017-PHX-JAT (JI)

The United States of America, by and through undersigned counsel, hereby opposes the Amended Motion of Defendant/Movant Jose Angel Romero-Lopez to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 for the reasons set forth in the attached Memorandum of Points and Authorities. Respectfully submitted this 8th day of June, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona /s/ Alison S. Bachus ALISON S. BACHUS Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES Procedural History of Defendant's § 2255 Proceedings Defendant/Movant ("Defendant"), Jose Angel Romero-Lopez, is currently confined in Three

4 Rivers, Texas at a Federal Correctional Institution. On April 11, 2006, he filed a pro se motion 5 pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. (CR1 24.) The United 6 States responded (CR 28), and Defendant filed a Reply in which he listed several new claims 7 (CR 29). The Court provided Defendant with an opportunity to file a Motion to Amend. (CR 8 30.) Defendant instead filed another § 2255 Motion. (CR 31.) The Court construed the new 9 Motion as a Motion to Amend (CR 33), and the United States responded to that Motion to 10 Amend (CR 34). The Court thereafter granted the Motion to Amend and identified the claims 11 for relief that are to be considered. (CR 35.) The Court also provided the United States with 20 12 days to respond to the Amended § 2255 Motion. 13 II. Issues Presented 14 In its Order filed May 23, 2007, the Court identified the claims for relief that will be

15 considered in this § 2255 proceeding. They are Defendant's claims that: (1) he was denied his 16 right to prosecution on a grand jury indictment; (2) (a) that any waiver of his right to indictment 17 was unknowingly made, (b) that he received ineffective assistance of counsel when he waived 18 his right, and (c) that his sentence exceeds the statutory maximum; (3) that his waiver of his 19 appeal rights was not knowingly made because of his ineffective assistance of counsel; and (4) 20 that he was improperly sentenced under U.S. v. Booker, 543 U.S. 220 (2005) and Blakely v. 21 Washington, 542 U.S. 296 (2004). 22 III. Procedural History of Defendant's Underlying Conviction 23 On September 15, 2004, pursuant to a written plea agreement, Defendant pled guilty to the

24 offense of Illegal Reentry After Deportation in violation of Title 8, United States Code, 25 26 27 28
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"CR" refers to the docket number in CR-04-1008-PHX-JAT.
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1 §1326(a), as enhanced by §1326(b)(2), as charged in the two-count information.2 Defendant was 2 represented by Bruce Yancey from the inception of the prosecution until sentencing. Pursuant 3 to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the Government and Defendant 4 agreed that Defendant should receive a three-level downward adjustment to his base offense 5 level for acceptance of responsibility, and the parties stipulated to a four-level downward 6 departure pursuant to §5K3.1. Defendant's base offense level, before any adjustment or 7 departure, was Offense Level 24, which, at Criminal History Category VI, carries a sentencing 8 guideline range of 100 - 125 months imprisonment. After the three-level downward adjustment 9 to the base offense level pursuant to the plea agreement, Defendant's Offense Level was 21. In 10 accordance with the term of stipulation in the plea agreement to a four-level downward 11 departure, Defendant's sentencing guideline range as calculated in the presentence report was 12 reduced from a range of 77 - 96 months at Offense Level 21 and Criminal History Category VI, 13 to a range of 51 - 63 months at Offense Level 17. Defendant was thereafter sentenced on 14 November 29, 2004, to a 63 month term of imprisonment followed by three years of supervised 15 release. The judgment was entered on November 29, 2004. (CR 11.) 16 Despite his express waiver of appeal rights in his plea agreement, Defendant filed a Notice

17 of Appeal on December 9, 2004. (CR 13.) On appeal, Defendant, represented by James Sun 18 Park,3 argued that the waiver language in the plea agreement was ambiguous and he did not 19 waive his right to appeal his sentence under United States v. Booker, 125 S. Ct. 738 (2005). The 20 government maintained that Defendant knowingly and voluntarily waived all appeal rights under 21 the plea agreement and that the Ninth Circuit Court of Appeals accordingly lacked jurisdiction. 22 The Court of Appeals dismissed Defendant's appeal "in light of the valid appeal waiver." U.S. 23 24 Defendant was also charged with attempted reentry after deportation in the 25 information. That count was dismissed at sentencing. 26 Mr. Park is presumably not the subject of Defendant's pending Motion, as Defendant only mentions a supposed guarantee made to him by his attorney regarding 27 acceptance of the plea. Defendant has not referenced his appellate representation in his Motion. 28
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1 v. Romero-Lopez, No. 04-10694, at 2 (9th Cir. Mar. 17, 2006) (mem.) Judgment from the Court 2 of Appeals was entered on March 17, 2006, and the Mandate issued on April 11, 2006. (CR 23.) 3 IV. Facts 4 On September 15, 2004, Defendant appeared, assisted by the court interpreter, before the

5 Honorable Jay Irwin for a change of plea and was placed under oath. (Ex. A at 2-4.) The Court 6 told Defendant that if he did not understand something, or if he needed to talk with his lawyer, 7 he should let the Court know. (Id. at 3.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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The Court first explained Defendant's right to a grand jury indictment: The Court: Under the Constitution of the United States you have the right to have a Grand Jury review your case. A Grand Jury is made up of at least 16 but not more than 23 people. And at least 12 of those people must agree that there is probable cause to believe you did what you're accused of doing in order for your case to proceed. If your matter were presented to a Grand Jury, it might or it might not decide that your case should proceed. If they decided your case should proceed, they would sign what's called an Indictment. You would be indicted. Instead of an Indictment your case has been brought today by that Information signed by the prosecutor not the Grand Jury. You have the right to insist upon a review and an Indictment by the Grand Jury, but you can give up that right and agreed to proceed here today on the Information signed by the prosecutor. Those are your rights to have a Grand Jury Indictment. Do you understand them? Defendant: Yes. The Court: Have you discussed with your lawyer giving up your right to a Grand Jury Indictment? Defendant: Yes. The Court: Have any threats or promises been made to you to cause you or induce you to give up your right to have a Grand Jury Indictment? Defendant: No. The Court: Do you wish to sign a written waiver at this time and give up your right to a Grand Jury Indictment? Defendant: Yes. (Id. at 8-9.) The Court then asked Defendant several questions regarding his plea agreement: The Court: Mr. Romero, have you had enough time to fully and completely discuss your case with your lawyer? The Defendant: Yes. The Court: Are you satisfied with his representation in your case? The Defendant: Yes. The Court: Is there anything you think he should do that he hasn't done, or anything you want him to do that he hasn't done? The Defendant: No. (Id. at 7.) ......

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The Court: Was the Plea Agreement read to you in Spanish word for word before you signed it? The Defendant: Yes. The Court: Did you go over its terms with your lawyer and have him answer all of your questions about it to your satisfaction before you signed it? The Defendant: Yes. The Court: Do you understand it? The Defendant: Yes. The Court: Does the Plea Agreement reflect all of the promises or assurances made to you or your lawyer by the prosecutor? The Defendant: Yes. The Court: Other than what's in the Plea Agreement, has anyone made any promise or agreement which induced or caused you to plead guilty? The Defendant: No one. The Court: Other than what's in the Plea Agreement, has anyone, your lawyer or anyone, made any promise to you about what your sentence will be? The Defendant: No. The Court: Does the Plea Agreement contain everything you agreed to? The Defendant: Yes. The Court: Do you agree to everything that's in it? The Defendant: Yes. The Court: Do you have any questions about it at all? The Defendant: No. (Id. at 9-10.) ....... The Court: Have you talked with your lawyer about the guidelines and how they might apply to you? The Defendant: Yes. The Court: Do you understand the concept of the sentencing guidelines? The Defendant: Yes. The Court: Mr. Yancey, have you discussed the guidelines with Mr. Romero? Mr. Yancey: Yes, I have, Your Honor. The Court: Do you think he understands them? Mr. Yancey: Yes, I do. The Court: Have you given him your best estimate of the guideline range that applies to him? Mr. Yancey: Yes, I have. The Court: . . . The maximum guideline range under the Plea Agreement provides for a sentence of up to 63 months in prison. And depending upon your criminal history you could be sentenced under the Plea Agreement and the guidelines to up to that amount of time in prison. Do you understand that? The Defendant: Yes. (Id. at 11-12.) Finally, at the end of the change of plea proceeding, the Court asked Defendant if he had

24 understood everything the Court had explained during the proceeding and Defendant responded, 25 "Yes." (Id. at 21.) 26 On November 29, 2004, Defendant appeared, assisted by the official court interpreter, before

27 the Honorable James A. Teilborg for sentencing. (Ex. B at 3.) The Court provided Defendant 28
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1 with the opportunity to say whatever he wished, and Defendant asked that the Court give him 2 a suspended sentence. (Id. at 6.) Defendant again failed to make any complaint to the Court 3 regarding his attorney's conduct or the plea agreement. Indeed, the next question posed to 4 Defendant by the Court was whether Defendant was satisfied with the representation provided 5 by Mr. Yancey. (Id.) Defendant replied "Yes." (Id.) After defense counsel and counsel for the 6 government spoke to the Court regarding Defendant's sentence, Defendant addressed the Court 7 about a prior offense. (Id. at 8-9.) 8 Mr. Yancey has provided an affidavit regarding his representation of Defendant. (Ex. C)

9 In his affidavit, Mr. Yancey affirms that he explained the sentencing guidelines to Defendant and 10 what his sentence would likely be if Defendant accepted the plea agreement. (Id.) Mr. Yancey 11 also states that he provided Defendant with an estimate of Defendant's possible sentence if he 12 rejected the plea offer and was convicted at trial. (Id.) Mr. Yancey further affirms that he 13 explained to Defendant that the plea offer containing a downward departure for early disposition 14 would be withdrawn if Defendant delayed in accepting the plea offer so as to cause an 15 indictment to be filed in the case. (Id.) Finally, Mr. Yancey states that Defendant "indicated that 16 he understood the plea offer and that it was his desire to accept" it and not proceed to trial. (Id.) 17 V. Analysis 18 19 A. Defendant's motion is timely The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110

20 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive 21 limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. 22 Particularly, in section 105 of AEDPA, Congress established a one-year period of limitations for 23 such motions. Defendant filed this motion within one year of the date upon which his conviction 24 became final. See Clay v. U.S., 537 U.S. 522, 532 (2003) (holding "for federal criminal 25 defendants who do not file a petition for certiorari with [the Supreme Court] on direct review, 26 §2255's one-year limitation period starts to run when the time for seeking such review expires" 27 28
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1 and consequently finding that the time to file a petition for writ of certiorari expired 90 days after 2 the entry of the Court of Appeals' judgment). Therefore, Defendant's motion is timely. 3 4 5 B. Defendant has failed to establish any claims under § 2255 1. Defendant's claims regarding waiver of indictment fail Defendant makes three arguments regarding his waiver of indictment: (1) that he was denied

6 his right to prosecution on a grand jury indictment, (2) that any waiver of his right to indictment 7 was unknowingly made, and (3) he received ineffective assistance of counsel when he waived 8 his right. For the following reasons, all three of these claims fail. 9 A review of the transcript of Defendant's change of plea proceedings clearly demonstrates

10 that the Court explained Defendant's right to an indictment by a grand jury, that Defendant told 11 the Court ­ under oath ­ that he understood that right and had discussed it with his attorney, and 12 that the Defendant unequivocally expressed his decision to waive that right to indictment. The 13 Court took special care to explain Defendant's right to a grand jury proceeding, how a grand jury 14 works, and what an indictment is. (Ex. A at 8.) After listening to the Court's careful 15 explanation, Defendant indicated that he understood his rights. (Id. at 9.) Defendant further 16 stated that he had talked about those rights with Mr. Yancey and that no threats or promises had 17 been made to him to give up his right to an indictment. (Id.) Defendant then stated that he 18 wished to sign a written waiver of his right to an indictment. (Id.) 19 Despite all of the Court's careful explanation and questioning, Defendant now claims that

20 he does not understand indictment and he does not want to waive his right and that he received 21 ineffective assistance of counsel when he waived his right. Defendant's sworn statements at his 22 change of plea proceeding, however, demonstrate the exact opposite. Those sworn statements 23 clearly indicate that Defendant understood his rights, discussed them with his attorney, and 24 waived them. Had Defendant not understood or not had a chance to discuss with his attorney, 25 his responses should have been different. 26 27 28
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Furthermore, Defendant signed his plea agreement, which contains the following language:

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Waiver of Indictment I understand that I have a right to have the charge[s] prosecuted by an indictment returned by a concurrence of 12 or more members of a legally constituted grand jury consisting of not less than 16 and not more than 23 members. By signing this agreement, I knowingly waive my right to be prosecuted by indictment and to assert at trial or on appeal any defects or errors arising from the information, the information process, or the fact that I have been prosecuted by way of information. (CR 12 at 7.) At his change of plea hearing, Defendant indicated to the Court that he had spoken

5 with Mr. Yancey prior to the change of plea hearing and that Mr. Yancey had answered all of 6 his questions regarding the plea agreement. (Ex. A at 7-10.) 7 Thus, Defendant not only stated under oath to the Court that he understood his right to an 8 indictment and executed a written waiver, Defendant also acknowledged that right and 9 knowingly waived that right when he signed his plea agreement. Any bald assertion now by 10 Defendant he does not understand his right to indictment or did not knowingly waive that right 11 flies in the face of his previous sworn oral and written statements to the contrary. Defendant's 12 first two claims regarding his right to an indictment therefore fail. 13 Furthermore, to prevail on a claim of ineffective assistance of counsel, a defendant must 14 show both that the attorney's performance fell below prevailing norms and that the counsel's 15 deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 68716 88 (1984). Further, the court need not examine whether counsel's performance was deficient 17 before considering whether a defendant suffered prejudice. Id. at 697. To satisfy the prejudice 18 requirement, "the defendant must show that there is a reasonable probability that, but for 19 counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 20 Hill v. Lockhart, 474 U.S. 52, 59 (1985). 21 To establish ineffective assistance of counsel, a defendant "must show that his attorney's 22 representation fell below an objective standard of reasonableness." United States v. Freeny, 841 23 F.2d 1000, 1002 (9th Cir. 1988). In making this determination, "a court must indulge a strong 24 presumption that counsel's conduct falls within the wide range of reasonable professional 25 assistance." Strickland, 466 U.S. at 689. In doing so, a court should "neither second-guess 26 counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight." Campbell v. 27 28
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1 Wood, 18 F.3d 662, 673 (9th Cir. 1994). Rather, "[a] fair assessment of attorney performance 2 requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct 3 the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's 4 perspective at the time." Id. (quoting Strickland, 466 U.S. at 689). 5 The record in this case is clear that Defendant spoke to his attorney about his right to

6 indictment, because Defendant himself so indicated at his change of plea hearing. (Ex. A at 9.) 7 Defendant's statements are corroborated by Mr. Yancey, who indicated in his affidavit that 8 Defendant was "advised that if he decided not [to] accept the plea offer early in the case causing 9 the government to go to the grand jury to seek an indictment against the defendant, Jose Romero10 Lopez, the plea offer would be withdrawn and that and subsequent offer would not be as 11 favorable to the defendant, Jose Romero-Lopez, as the `fast track plea offer.'"4 (Ex. C at 1.) 12 As noted supra, Defendant's base offense level, before any adjustment or departure, was

13 Offense Level 24, which, at Criminal History Category VI, carries a sentencing guideline range 14 of 100 to 125 months imprisonment. Defendant received the benefit of the fast track plea, which 15 carried a range of 51 - 63 months. Thus, Defendant's exposure was cut in half. Despite this, 16 Defendant now claims that Mr. Yancey was ineffective. However, Defendant affirmed at both 17 his change of plea and sentencing hearings that he was satisfied with the representation provided 18 by Mr. Yancey. (Ex. A at 7, Ex. B at 6.) Clearly, Defendant has failed to show that his 19 attorney's conduct fell below an objective standard of reasonableness, and further, he has not 20 shown prejudice. Indeed, Defendant does not assert that had Mr. Yancey acted differently, 21 Defendant would have insisted on going to trial rather than pleading guilty. 22 // 23 // 24 25 Defendant claims that Mr. Yancey lied in his affidavit about this issue and Defendant asserts "under penalty of perjury" that he did not understand his right and that Mr. 26 Yancey did not explain it to him. (CR 29 at 2, 3.) However, Defendant swore under oath (and therefore has already stated under penalty of perjury) that he did understand his right and that 27 Mr. Yancey did discuss his right to indictment with him. 28
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2. Defendant's claim that his sentence exceeds the statutory maximum fails Defendant next claims that his sentence, which is more than two years in prison, exceeds the

3 statutory maximum of 8 U.S.C. § 1326(a) and is therefore in violation of the Constitution. 4 Defendant argues that 8 U.S.C. § 1326(b) constitutes a separate offense which includes a prior 5 conviction as an element. Defendant is incorrect. 6 The maximum penalty for illegally re-entering the United States after having been deported,

7 without more, is in fact two years. 8 U.S.C. § 1326(a). However, if a person commits such a 8 violation while having a prior conviction that qualifies as an aggravated felony, the maximum 9 statutory sentence is 20 years. 8 U.S.C. § 1326(b)(2). Defendant in the instant case was charged 10 with and convicted for violating 8 U.S.C. § 1326(a), enhanced by § 1326(b)(2). 11 In Almendarez-Torres v. U.S., 523 U.S. 224, 226-227 (1998), the Supreme Court held in a

12 5-4 decision that the aggravated felony provision in 8 U.S.C. § 1326(b)(2), while authorizing a 13 sentencing enhancement for recidivism, does not define a separate crime and consequently need 14 not be charged in an indictment that alleged a violation of 8 U.S.C. § 1326(a). In U.S. v. 15 Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir. 2000), the Court held that Almendarez-Torres does 16 not require the Government to include prior aggravated felony convictions in the indictment, 17 submit them to a jury, or prove them beyond a reasonable doubt. The Court also stated that, 18 "[u]nless and until Almendarez-Torres is overruled by the Supreme Court, we must follow it." 19 Id. at 414. Almendarez-Torres has not been overruled by the Supreme Court, it remains good 20 law; and, lower courts are required to abide by its holding that the sentencing enhancements in 21 8 U.S.C. § 1326(b)(2) are in fact enhancements and not elements of a separate crime. Thus, 22 Defendant's argument that § 1326(b)(2) is a separate crime and that, consequently, his sentence 23 exceeds the statutory maximum, fails. Defendant was charged and convicted of violating 8 24 U.S.C. § 1326(a), enhanced by § 1326(b)(2), and he received a sentence below the statutory 25 maximum of § 1326(b)(2). 26 // 27 // 28
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1 2 3 3. Defendant's claim that his appeal waiver was invalid due to ineffective assistance of counsel fails Defendant also claims that his waiver of his appeal rights was not knowingly or voluntarily

4 made because of the ineffective assistance of counsel he received. Defendant's argument fails. 5 As noted supra, to prevail on a claim of ineffective assistance of counsel, a defendant must

6 show both that the attorney's performance fell below prevailing norms and that the counsel's 7 deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687-88. In addition, the 8 court need not examine whether counsel's performance was deficient before considering whether 9 a defendant suffered prejudice. Id. at 697. To satisfy the prejudice requirement, "the defendant 10 must show that there is a reasonable probability that, but for counsel's errors, he would not have 11 pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 12 (1985). 13 A review of the written plea agreement and the change of plea proceedings establishes that

14 Defendant, with the assistance of counsel, had read and understood the provisions of the plea 15 agreement, including the waiver of appeal provision, and had been advised of the nature of the 16 charges against him, his constitutional rights and sentencing possibilities, and that he had entered 17 his guilty plea without force, threats or promises not contained in the plea agreement. (Ex. A 18 at 9-12.) 19 Indeed, other than stating in his amended motion that his defense "counsel is constitutional

20 deficient who waives his right to appeal" (CR 31 at 2), Defendant has offered no reason why the 21 appeal waiver should be set aside. He provides no basis for finding that the plea was involuntary 22 in any way or that the plea proceedings violated Fed. R. Crim. P. 11. Defendant received a 23 benefit for his guilty plea, specifically, the plea agreement assured that Defendant would receive 24 a three level downward adjustment for acceptance of responsibility and a four level downward 25 departure based on savings to the government. (CR 12 at 3.) In return, Defendant gave up all 26 appellate rights to any lawful sentence he received. Defendant was sentenced lawfully and 27 28
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1 consistently with the plea agreement. 2 Nothing in Defendant's motion suggests either that defense counsel's performance fell

3 below an objective standard of reasonableness, or that Defendant was prejudiced by any alleged 4 ineffective assistance by defense counsel. Other than merely claiming that Mr. Yancey's 5 representation was constitutionally deficient because of the appeal waiver, Defendant has not 6 provided any factual support for his ineffective assistance of counsel claim. Rather, as detailed 7 supra, Defendant's own sworn statement at his change of plea and sentencing proceedings 8 demonstrate the opposite. Additionally, Defendant has not argued once, in any of his numerous 9 filings, that but for Mr. Yancey's alleged errors (i.e., appeal waiver), he would have insisted on 10 going to trial. Thus, Defendant cannot and has not shown that Mr. Yancey's representation was 11 objectively unreasonable or that he was prejudiced. Accordingly, Defendant's ineffective 12 assistance of counsel claim regarding an invalid appeal waiver fails. 13 14 4. Defendant's claim that he was improperly sentenced under Booker and Blakely Defendant also claims that his right to trial was violated when the sentencing court added

15 levels to his Offense Level "based on a fact not proven to a jury beyond a reasonable doubt, or 16 addmitted [sic] by [Defendant]." (CR 31 at 4.) This claim also fails, for both legal and factual 17 reasons. 18 First, Defendant's claim is unsupported by the controlling case law. In Apprendi v. New

19 Jersey, the Supreme Court announced a general rule that "[o]ther than the fact of a prior 20 conviction, any fact that increases the penalty for a crime beyond the prescribed statutory 21 maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 22 490 (2000) (emphasis added). The Court extended that rule in Blakely, but retained the language 23 "other than the fact of a prior conviction." Blakely v. Washington, 542 U.S. 296, 301 (2004) 24 ("This case requires us to apply the rule we expressed in Apprendi."). After the Supreme Court 25 decided Blakely, the Ninth Circuit, in United States v. Quintana-Quintana, 383 F.3d 1052 (9th 26 Cir. 2004), confirmed that its holding in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 27 28
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1 2001), remains good law. Quintana-Quintana, 383 F.3d at 1053. In Pacheco-Zepeda, the court 2 held the government need not prove beyond a reasonable doubt the existence of a defendant's 3 prior conviction in a prosecution under 8 U.S.C. § 1326. Id. at 414-415 ("Apprendi held that all 4 prior convictions . . . were exempt from Apprendi's general rule and, under Almendarez-Torres, 5 may continue to be treated as sentencing factors."). In Blakely, the Supreme Court specifically 6 left proof of a prior conviction as an exception to the rule of Apprendi and did not overrule 7 Almendarez-Torres. Blakely, 542 U.S. at 301; Quintana-Quintana, 383 F.3d at 1053. Therefore, 8 this Court properly enhanced Defendant's offense level on the basis of his prior aggravated 9 felony. 10 In addition to the foregoing reasons meriting dismissal of Defendant's last claim, Defendant

11 admitted the conviction that formed the basis for the sentence enhancement in this case. 12 Specifically, Defendant admitted: 13 14 Furthermore, for sentencing purposes, I admit I was convicted of possession of a narcotic controlled substance for sale, a felony, on September 3, 2002, and I was represented by an attorney. I was sentenced to three years prison.

15 (Ex. B at 8.) Therefore, Defendant's claim fails factually as well as legally. See Blakely, 542 16 U.S. at 303-04 (defining "statutory maximum" sentence as "the maximum sentence a judge may 17 impose solely on the basis of the facts reflected in the jury verdict or admitted by the 18 19 20 21 22 23 24 25 26 27 28
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defendant"). C. Defendant is not entitled to a hearing The Ninth Circuit has recognized that when the issue of credibility can be "`conclusively decided on the basis of documentary testimony and evidence in the record,'" no evidentiary hearing is required. United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988) (quoting Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988)). In addition, courts may expand the record by using discovery or documentary evidence rather than conduct an evidentiary hearing. Shah v. United States, 878 F.2d 1156, 1163 (9th Cir. 1989). Here, the Court can review the transcripts from the change of plea and sentencing and Mr. Yancey's affidavit in assessing

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Defendant's credibility. The claims in Defendant's amended § 2255 motion directly contradict his sworn statements in the transcripts. Therefore, the Court has sufficient information to rule on the amended motion without an evidentiary hearing. VI. Conclusion For all of the foregoing reasons, the United States requests that the Court deny Defendant/Movant's Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Respectfully submitted this 8th day of June, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona /s/ Alison S. Bachus ALISON S. BACHUS Assistant U.S. Attorney

Copy of the foregoing marked "Inmate's Legal Mail"and mailed this date to:

16 Jose Angel Romero-Lopez, No. 64248-208, FCI-Three Rivers, PO Box 4200, Three Rivers, TX 78071 17 18 19 20 21 22 23 24 25 26 27 28
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