Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON 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. The United States of America, by and through undersigned counsel, hereby opposes the 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 28th day of September, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s/ Alison S. Bachus ALISON S. BACHUS Assistant U.S. Attorney RESPONSE IN OPPOSITION TO 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)

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MEMORANDUM OF POINTS AND AUTHORITIES Issue Presented Defendant/Movant ("Defendant"), Jose Angel Romero-Lopez, is currently confined in Big

4 Spring, Texas at a Correctional Institution. On April 11, 2006, he filed a pro se motion pursuant 5 to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. (CR1 24.) Specifically, 6 Defendant alleges that his defense counsel "guaranteed" Defendant that he would serve 120 7 months in prison if Defendant did not sign the plea agreement. 8 II. Procedural History 9 On September 15, 2004, pursuant to a written plea agreement, Defendant pled guilty to the

10 offense of Illegal Reentry After Deportation in violation of Title 8, United States Code, 11 §1326(a), as enhanced by §1326(b)(2), as charged in the two-count information.2 Defendant was 12 represented by Bruce Yancey from the inception of the prosecution until sentencing. Pursuant 13 to Rule 11(c)(1)© of the Federal Rules of Criminal Procedure, the Government and Defendant 14 agreed that Defendant should receive a three-level downward adjustment to his base offense 15 level for acceptance of responsibility, and the parties stipulated to a four-level downward 16 departure pursuant to §5K3.1. Defendant's base offense level, before any adjustment or 17 departure, was Offense Level 24, which, at Criminal History Category VI, carries a sentencing 18 guideline range of 100 - 125 months imprisonment. After the three-level downward adjustment 19 to the base offense level pursuant to the plea agreement, Defendant's Offense Level was 21. In 20 accordance with the term of stipulation in the plea agreement to a four-level downward 21 departure, Defendant's sentencing guideline range as calculated in the presentence report was 22 reduced from a range of 77 - 96 months at Offense Level 21 and Criminal History Category VI, 23 to a range of 51 - 63 months at Offense Level 17. Defendant was thereafter sentenced on 24 25 26
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"CR" refers to the docket number in CR-04-1008-PHX-JAT.

Defendant was also charged with attempted reentry after deportation in the 27 information. That count was dismissed at sentencing. 28
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1 November 29, 2004, to a 63 month term of imprisonment followed by three years of supervised 2 release. The judgment was entered on November 29, 2004. (CR 11.) 3 Despite his express waiver of appeal rights in his plea agreement, Defendant filed a Notice

4 of Appeal on December 9, 2004. (CR 13.) On appeal, Defendant, represented by James Sun 5 Park,3 argued that the waiver language in the plea agreement was ambiguous and he did not 6 waive his right to appeal his sentence under United States v. Booker, 125 S. Ct. 738 (2005). The 7 government maintained that Defendant knowingly and voluntarily waived all appeal rights under 8 the plea agreement and that the Ninth Circuit Court of Appeals accordingly lacked jurisdiction. 9 The Court of Appeals dismissed Defendant's appeal "in light of the valid appeal waiver." U.S. 10 v. Romero-Lopez, No. 04-10694, at 2 (9th Cir. Mar. 17, 2006) (mem.) Judgment from the Court 11 of Appeals was entered on March 17, 2006, and the Mandate issued on April 11, 2006. (CR 23.) 12 On April 12, 2006, Defendant filed this pro se Motion to Vacate, Set Aside, or Correct

13 Sentence pursuant to 28 U.S.C. § 2255. (CR 24.) In an Order filed August 1, 2006, this Court 14 provided the United States with 60 days to file a Response to the Motion. (CR 26.) 15 III. Facts 16 On September 15, 2004, Defendant appeared, assisted by the court interpreter, before the

17 Honorable Jay Irwin for a change of plea and was placed under oath. (Ex. A at 2-4.) The Court 18 told Defendant that if he did not understand something, or if he needed to talk with his lawyer, 19 he should let the Court know. (Id. at 3.) The Court then asked Defendant several questions 20 regarding his plea agreement: 21 22 23 24 25 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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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.

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1 (Id. at 7.) ...... 2 The Court: Was the Plea Agreement read to you in Spanish word for word before you signed it? 3 The Defendant: Yes. The Court: Did you go over its terms with your lawyer and have him answer all of your 4 questions about it to your satisfaction before you signed it? The Defendant: Yes. 5 The Court: Do you understand it? The Defendant: Yes. 6 The Court: Does the Plea Agreement reflect all of the promises or assurances made to you or your lawyer by the prosecutor? 7 The Defendant: Yes. The Court: Other than what's in the Plea Agreement, has anyone made any promise or 8 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, 9 made any promise to you about what your sentence will be? The Defendant: No. 10 The Court: Does the Plea Agreement contain everything you agreed to? The Defendant: Yes. 11 The Court: Do you agree to everything that's in it? The Defendant: Yes. 12 The Court: Do you have any questions about it at all? The Defendant: No. 13 (Id. at 9-10.) ....... 14 The Court: Have you talked with your lawyer about the guidelines and how they might apply to you? 15 The Defendant: Yes. The Court: Do you understand the concept of the sentencing guidelines? 16 The Defendant: Yes. The Court: Mr. Yancey, have you discussed the guidelines with Mr. Romero? 17 Mr. Yancey: Yes, I have, Your Honor. The Court: Do you think he understands them? 18 Mr. Yancey: Yes, I do. The Court: Have you given him your best estimate of the guideline range that applies to 19 him? Mr. Yancey: Yes, I have. 20 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 21 be sentenced under the Plea Agreement and the guidelines to up to that amount of time in prison. Do you understand that? 22 The Defendant: Yes. 23 (Id. at 11-12.) 24 Finally, at the end of the change of plea proceeding, the Court asked Defendant if he had

25 understood everything the Court had explained during the proceeding and Defendant responded, 26 "Yes." (Id. at 21.) At no time did Defendant ever state that his attorney had "guaranteed" a 12027 month sentence if he did not sign the plea agreement. 28
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On November 29, 2004, Defendant appeared, assisted by the official court interpreter, before

2 the Honorable James A. Teilborg for sentencing. (Ex. B at 3.) The Court provided Defendant 3 with the opportunity to say whatever he wished, and Defendant asked that the Court give him 4 a suspended sentence. (Id. at 6.) Defendant again failed to make any complaint to the Court 5 regarding his attorney's conduct or the plea agreement. Indeed, the next question posed to 6 Defendant by the Court was whether Defendant was satisfied with the representation provided 7 by Mr. Yancey. (Id.) Defendant replied "Yes." (Id.) After defense counsel and counsel for the 8 government spoke to the Court regarding Defendant's sentence, Defendant addressed the Court 9 about a prior offense. (Id. at 8-9.) Defendant did not mention any statement by Mr. Yancey 10 regarding a "guaranteed" 120-month sentence if Defendant did not sign the plea agreement. 11 In his instant Motion, Defendant now claims that Mr. Yancey "took no time to explain the

12 plea agreement or what [Defendant's] options would be if [Defendant] did not sign it other than 13 to tell [Defendant] that [Yancey] would gaurantee [sic] that [Defendant] would get 120 months." 14 Defendant claims that Mr. Yancey would not tell Defendant how such a long sentence was 15 possible. Thus, Defendant argues, the plea was not voluntary. 16 Mr. Yancey has provided an affidavit regarding his representation of Defendant. (Ex. C)

17 In his affidavit, Mr. Yancey affirms that he explained the sentencing guidelines to Defendant and 18 what his sentence would likely be if Defendant accepted the plea agreement. (Id.) Mr. Yancey 19 also states that he provided Defendant with an estimate of Defendant's possible sentence if he 20 rejected the plea offer and was convicted at trial. (Id.) Mr. Yancey further affirms that he 21 explained to Defendant that the plea offer containing a downward departure for early disposition 22 would be withdrawn if Defendant delayed in accepting the plea offer so as to cause an 23 indictment to be filed in the case. (Id.) Finally, Mr. Yancey states that Defendant "indicated that 24 he understood the plea offer and that it was his desire to accept" it and not proceed to trial. (Id.) 25 // 26 // 27 // 28
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1 IV. Analysis 2 A. Defendant's motion is timely 3 The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110

4 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive 5 limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. 6 Particularly, in section 105 of AEDPA, Congress established a one-year period of limitations for 7 such motions. Defendant filed this motion within one year of the date upon which his conviction 8 became final. See Clay v. U.S., 537 U.S. 522, 532 (2003) (holding "for federal criminal 9 defendants who do not file a petition for certiorari with [the Supreme Court] on direct review, 10 §2255's one-year limitation period starts to run when the time for seeking such review expires" 11 and consequently finding that the time to file a petition for writ of certiorari expired 90 days after 12 the entry of the Court of Appeals' judgment). Therefore, Defendant's motion is timely. 13 14 B. Defendant has failed to establish ineffective assistance of counsel To prevail on a claim of ineffective assistance of counsel, a defendant must show both that

15 the attorney's performance fell below prevailing norms and that the counsel's deficient 16 performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 17 Further, the court need not examine whether counsel's performance was deficient before 18 considering whether a defendant suffered prejudice. Id. at 697. To satisfy the prejudice 19 requirement, "the defendant must show that there is a reasonable probability that, but for 20 counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 21 Hill v. Lockhart, 474 U.S. 52, 59 (1985). 22 To establish ineffective assistance of counsel, a defendant "must show that his attorney's

23 representation fell below an objective standard of reasonableness." United States v. Freeny, 841 24 F.2d 1000, 1002 (9th Cir. 1988). In making this determination, "a court must indulge a strong 25 presumption that counsel's conduct falls within the wide range of reasonable professional 26 assistance." Strickland, 466 U.S. at 689. In doing so, a court should "neither second-guess 27 counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight." Campbell v. 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 prior to the change of

6 plea hearing and that Mr. Yancey answered all of his questions regarding the plea agreement. 7 (Ex. A at 7-10.) Defendant's contention that Mr. Yancey "guaranteed" him 120 months if he did 8 not take the plea offer is undermined by Defendant's silence at the change of plea and sentencing 9 hearings. Defendant failed to inform the Court, either at the change of plea or sentencing, that 10 he had been "guaranteed" 120 months incarceration if he did not take the plea offer. This fact 11 is particularly noteworthy in light of Defendant's willingness at his sentencing hearing to address 12 the Court regarding his sentence and later interject to speak about an offense in his criminal 13 history. Indeed, in direct contravention to what Defendant now claims are Defendant's own 14 words. At his change of plea hearing, Defendant stated under oath that Mr. Yancey had answered 15 all of Defendant's questions about the plea agreement to Defendant's satisfaction before 16 Defendant signed it and that no promises about what his sentence would be or promises to 17 induce him to plead guilty had been made. (Id. at 9-10.) 18 In his affidavit, Mr. Yancey affirms that he advised Defendant regarding the possible

19 sentence Defendant could have faced had Defendant gone to trial and been convicted. (Ex. C) 20 As noted supra, Defendant's base offense level, before any adjustment or departure, was Offense 21 Level 24, which, at Criminal History Category VI, carries a sentencing guideline range of 100 22 to 125 months imprisonment. Therefore, an estimation by defense counsel of a penalty of 120 23 months if Defendant were convicted at trial would have been within that guideline range. 24 Defendant admitted on the record, and was advised by the Court at his change of plea hearing, 25 of what the maximum sentence under the plea agreement would be. Defendant stated he 26 understood. Finally, Defendant affirmed at both his change of plea and sentencing that he was 27 satisfied with the representation provided by Mr. Yancey. Thus, Defendant has failed to show 28
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1 that his attorney's conduct fell below an objective standard of reasonableness, and further, he 2 has not shown prejudice. Defendant does not assert that had Mr. Yancey acted differently, 3 Defendant would have insisted on going to trial rather than pleading guilty. 4 5 C. Defendant is not entitled to a hearing The Ninth Circuit has recognized that when the issue of credibility can be "`conclusively

6 decided on the basis of documentary testimony and evidence in the record,'" no evidentiary 7 hearing is required. United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988) (quoting 8 Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988)). In addition, courts may expand the 9 record by using discovery or documentary evidence rather than conduct an evidentiary hearing. 10 Shah v. United States, 878 F.2d 1156, 1163 (9th Cir. 1989). Here, the Court can review the 11 transcripts from the change of plea and sentencing and Mr. Yancey's affidavit in assessing 12 Defendant's credibility. The claims in Defendant's § 2255 motion directly contradict his 13 statements in the transcripts. Therefore, the Court has sufficient information to rule on the 14 motion without an evidentiary hearing. 15 V. Conclusion 16 For all of the foregoing reasons, the United States requests that the Court deny

17 Defendant/Movant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 18 2255. 19 20 21 22 23 24
Copy of the foregoing marked "Inmate's Legal Mail" mailed this date to:

Respectfully submitted this 28th day of September, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s/ Alison S. Bachus ALISON S. BACHUS Assistant U.S. Attorney

25 Jose Angel Romero-Lopez, No. 64248-208, BSCC-Big Spring-AU, Airpark Unit, 3700 Wright Ave., Big Spring,
TX 79720

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