Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KAREN S. MCDONALD Assistant U.S. Attorney Arizona State Bar No. 014274 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, No. CV 05-11715-PHX-EHC (DKD) Plaintiff-Respondent, No. CR 04-0987-PHX-EHC v. Arturo Badillo-Franco, Defendant-Movant, RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. §2255

The United States of America, by and through undersigned counsel, hereby opposes

17 Defendant-Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. 18 §2255 for the reasons set forth in the attached Memorandum of Points and Authorities. 19 20 21 22 23 24 25 26 27 28 PAUL K. CHARLTON United States Attorney District of Arizona S/Karen S. McDonald KAREN S. MCDONALD Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES Issues Presented On June 8, 2005, Defendant-Movant, Arturo Badillo Franco, filed a pro se motion

4 pursuant to 28 U.S.C. § 2255 alleging an unconstitutional search and ineffective assistance of 5 counsel as basis for relief. This motion was served upon the United States on June 16, 2005. 6 Defendant-Movant alleges that he was unconstitutionally stopped without reason, that defense 7 counsel failed to investigate and present potentially mitigating evidence at sentencing, that he 8 was misadvised as to his plea agreement and that he unknowingly accepted his plea agreement. 9 II. 10 Procedural History Defendant-Movant Arturo Badillo-Franco was arrested in this matter on August 19, 2004.

11 He waived his trial and appellate rights and entered a guilty plea on September 15, 2004 to an 12 Information charging him with a violation of Title 8 United States Code, Section 13 1324(a)(1)(A)(ii) and (a)(1)(B)(iii), Transportation of Illegal Aliens. Badillo-Franco was 14 sentenced on November 29, 2004 to a term of 16 months in prison. 15 On June 8, 2005, Badillo-Franco filed a Motion to Vacate, Set Aside or Correct Sentence

16 By a Person In Federal Custody. By Order dated June 14, 2005, the Court ordered the United 17 States to respond to the petition within 60 days. On August 15, 2005, the United States applied 18 for an additional 45 days within which to respond. By Order dated August 17, 2005, the Court 19 granted that motion for an additional 45 days to respond. Herewith this Response, the United 20 States submits a Motion seeking permission to submit a late Response. 21 III. 22 23 24 25 Analysis A. Defendant-Movant Has Waived His Rights to Contest The Stop Resulting in His Arrest and Has Failed to Establish that his Fourth Amendment Rights Were Violated When he was Stopped by a Border Patrol Officer. Defendant-Movant alleges in his Motion a violation of his Fourth Amendment rights,

26 claiming that he was stopped by the U.S. Border Patrol allegedly without reason. When 27 Defendant-Movant entered his guilty plea on September 15, 2004, defendant was asked by the 28 2

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1 Court if he understood that he was waiving his appellate rights, which might include the right 2 to "raise issues about how [he was] arrested". See Exhibit A, attached, Transcript of Change of 3 Plea Proceeding, page 25. Defendant-Movant indicated that he understood and waived those 4 rights. Therefore, Defendant-Movant cannot now be heard to raise issues otherwise waived. 5 Additionally, Defendant-Movant has not alleged any facts to support his assertion that

6 he was stopped in an illegal search and seizure; he alleges a Fourth Amendment violation with 7 no elaboration and no factual assertions. Absent some factual assertions regarding the 8 circumstances under which Defendant-Movant was stopped, the Border Patrol's actions should 9 not be held to violate his Fourth Amendment Rights. The scant information in the record, 10 principally contained in the Presentence Report, recounts that "U.S. Bureau of Immigration and 11 Customs Enforcement agents, performing traffic operations on Highway 95 north of Yuma, 12 Arizona, encountered a truck with two visible passengers. Agents executed a traffic stop on the 13 truck after it turned into an area known for smuggling activities." No indication of an improper 14 stop or improper motive is present. 15 In United States v. Brignoni-Ponce, the Supreme Court held that, "[b]ecause of the

16 limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to 17 the probable cause required for an arrest." 422 U.S. 873, 880, 95 S.Ct. 2574, 2580 (1975). 18 Moreover, stopping a suspicious individual in order to determine his or her identity "may be 19 most reasonable in light of the facts known to the officer at the time." Id. (quoting Adams v. 20 Williams, 407 U.S. 143, 145-6, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)). 21 Together, those two principles stand for the proposition that, "in appropriate

22 circumstances, the Fourth Amendment allows for a properly limited `search' or `seizure' on facts 23 that do not constitute probable cause to arrest or search for contraband or evidence of crime." 24 Id. The Brignoni-Ponce Court found that limited stops of vehicles by immigration officers near 25 the Mexican Border constituted that type of appropriate circumstance. In doing so, the Court 26 relied upon the unique government interest in slowing the illegal entry of aliens into the United 27 States. Id. at 878-9. The Court noted that stops based on less than probable cause were 28 3

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1 necessary because the illegal entry of aliens creates "significant economic and social 2 problems..." Id. 3 In United States v. Martinez-Fuerte, the Court affirmed the constitutionality of similar

4 stops based on the unique difficulty in patrolling a 2000 mile long, uninhabited border area. 428 5 U.S. 543, 552, 96 S.Ct. 3074, 3080, 49 L.Ed.2d 1116 (1976). The Court reasoned that it would 6 be impossible to successfully enforce immigration laws along the border if the government was 7 forced to show probable cause every time it wished to search a vehicle suspected of carrying 8 undocumented aliens. Id. 9 This Circuit has previously determined what standard to which the government should

10 be held when stopping a vehicle suspected of harboring illegal entrants. Specifically, a Border 11 Patrol Officer must possess a "reasonable suspicion;" he/she must be aware of, "specific, 12 articulable facts which, when considered with objective and reasonable inferences, form a basis 13 of a particularized suspicion." United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th 14 Cir. 1998). Those specific facts may include the vehicle's proximity to the border and aspects 15 of the vehicle such as a large compartment in which aliens could be concealed. Id. at 1130 16 (citing Brignoni-Ponce). When accompanied by other factors, an individual's ethnic appearance 17 may contribute to an officer's reasonable suspicion. Id. at 1134. Even conduct that could be 18 considered "entirely innocuous in isolation," is able to establish reasonable suspicion. Id. at 19 1131. 20 In this case, the Border Patrol Officer acted with reasonable suspicion. Initially,

21 Defendant-Movant was stopped on Old 80 Highway in Arizona, in generally close proximity to 22 the Mexican Border. Furthermore, as Defendant-Movant himself recounts in his Motion, there 23 was a toolbox on the pickup truck in which several aliens were hiding. The toolbox may have 24 been an aspect of the vehicle that suggested illegal entrants were being concealed. The Border 25 Patrol Officer would also have been able to consider the fact that the defendant appeared to be 26 Mexican and was permitted to "assess the facts in light of his experience in detecting illegal 27 entry and smuggling". Montero-Camargo at 1131. However, none of these facts have been 28 4

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1 fleshed out in an evidentiary setting based upon Defendant-Movant's waiver of his rights in this 2 regard. Accordingly, absent any evidence to the contrary, the Border Patrol Officer acted with 3 reasonable suspicion when stopping Defendant-Movant, and there has been no violation of 4 Defendant-Movant's Fourth Amendment rights. 5 6 7 B. Defendant-Movant Has Failed to Establish An Ineffective Assistance of Counsel Claim. Defendant-Movant's final three claims are based on his contention that he received

8 ineffective assistance of counsel; all three claims will be addressed in this section. Defendant9 Movant alleges that his attorney failed to present mitigating evidence to the Court at sentencing, 10 that his attorney failed to advise him of the likely sentence and the risks of proceeding to trial, 11 and that he was not advised by his attorney of the nature of the charges, the consequences of a 12 plea agreement, nor even shown a plea agreement. To prevail on a claim of ineffective assistance of counsel, a defendant must show both 13 14 that his attorney's performance fell below prevailing norms and that counsel's deficient 15 performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 16 To show prejudice, "[t]he defendant must show that there is a reasonable probability that, but 17 for counsel's unprofessional errors, the result of the proceeding would have been different." Id. 18 at 694. This two-part test applies equally to challenges to guilty pleas based on ineffective 19 assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). 20 To establish ineffective assistance, a defendant "must show that his attorney's 21 representation fell below an objective standard of reasonableness." United States v. Freeny, 841 22 F.2d 1000, 1002 (9th Cir. 1988). In making this determination, "a court must indulge a strong 23 presumption that counsel's conduct falls within the wide range of reasonable professional 24 assistance." Strickland, 466 U.S. at 689. In doing so, a court should "neither second-guess 25 counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight." Campbell v. Wood, 26 18 F.3d 662, 673 (9th Cir. 1994). Rather, "[a] fair assessment of attorney performance requires 27 that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the 28 5

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1 circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's 2 perspective at this time." Id. (quoting Strickland, 466 U.S. at 689). 3 In cases where a defendant challenges counsel's performance at sentencing, he must 4 demonstrate that counsel's behavior had a uniquely prejudicial effect on the outcome of the 5 sentencing proceeding. In a multitude of decisions, this Circuit has held that counsel's failure 6 to investigate and present mitigating evidence during sentencing may only be classified as 7 ineffective assistance when there was a reasonable probability that presenting the evidence 8 would have resulted in a different sentence being imposed. See, e.g., Allen v. Woodford, 395 th th 9 F3d. 979, 984 (9 Cir. 2005); Hayes v. Woodford, 301 F3d. 1054, 1066 (9 Cir. 2002). 10 Defendant-Movant has not met that burden. Defendant-Movant claims ineffective 11 assistance of counsel based upon his belief that his attorney failed to present to the Court 12 mitigating evidence related to the sentencing enhancement defendant received for putting the 13 lives if illegal aliens at risk. However, review of the transcript of the Change of Plea Proceeding 14 reveals that Defendant-Movant agreed to the stipulation contained in the Plea Agreement that 15 he would receive a sentencing enhancement for creating a substantial risk of death or serious 16 bodily injury to the aliens he was transporting. See Exhibit a, pages 31-32. Further, the factual 17 basis of the Plea Agreement recites the facts establishing the sentencing enhancement. Further 18 still, defendant stated for the Court during the Change of Plea proceeding that the aliens "had 19 a small ventilator or fan and ice and water in the bed." See Exhibit A, page 38. The record 20 establishes that essential facts regarding the transportation, some of the very facts Defendant21 Movant complains were not presented to the Court by his attorney, were, in fact, before the 22 Court for sentencing purposes. 23 Defendant refers in his motion to the failure of his attorney to show to the Court at 24 sentencing pictures that the Border Patrol officers took of the truck and the tool box. Defendant25 Movant then fails to state what these pictures might reveal in the way of mitigation. 26 Defendant-Movant's assertion of mitigating evidence, but the lack of actual mitigating 27 evidence offered, cannot be considered to have resulted in a different sentence. Even given that 28 6

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1 the aliens being transported by Defendant-Movant had been given ice and water, it is still true 2 that Defendant-Movant admitted to facts sufficient to establish endangerment. Defendant3 Movant was asked at his Change of Plea Proceeding "[d]o you agree that your conduct on that 4 time placed their lives in jeopardy because of the heat and how they were being transported?" 5 and Defendant-Movant responded, "[y]es." Given Defendant-Movant's admissions, the 6 assessment of a sentencing enhancement was appropriate and consistent with the plea agreement 7 entered into in this case. The fact that the aliens were being transported in a small, hot and 8 cramped toolbox suggests a variety of ways in which the Defendant-Movant placed their lives 9 in danger. Defendant-Movant fails to establish a claim of ineffective assistance of counsel on 10 this basis. 11 Contained within Defendant-Movant's claim that his attorney failed to present mitigating 12 evidence to the Court at sentencing is his claim that no downward departure based upon his 13 deportability and aberrant behavior. However, Defendant-Movant waived his right to make a 14 motion for downward departure at sentencing in his Plea Agreement. Page 3, paragraph c of the 15 Plea Agreement indicates that if Defendant-Movant requests the Court to downward depart in 16 his sentence for any reason or if the Court, in fact, downward departed in sentencing Defendant17 Movant, the United States retained the right to withdraw from the Plea Agreement. Defendant18 Movant's attorney, by not requesting any downward departures in sentencing, was abiding by 19 the terms of the Plea Agreement. Defendant-Movant should not be heard at this juncture to 20 complain of his attorney's representation, when Defendant-Movant himself agreed to forgo any 21 opportunity for a sentence reduction beyond that agreed to in the Plea Agreement. 22 Defendant-Movant's second contention that he was misadvised as to his plea agreement 23 also fails to meet the standard for ineffective assistance of counsel. In this Circuit, it is well 24 established that defense counsel inaccurately predicting a sentence does not rise to the level of 25 ineffective assistance. Gonzalez v. U.S., 33 F.3d 1047 (9th Cir. 1994). If the district court 26 informed the defendant of the maximum sentence for the offense and the defendant indicated 27 28 7

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1 that he was satisfied with counsel's representation, the defendant is unable to argue that he 2 received ineffective assistance of counsel. Id. at 1052. In this case, the district court notified 3 Defendant-Movant as to the maximum sentence he could receive. Exhibit A, pages 14-15. 4 5 Defendant was asked if he had enough time to consult with his attorney and that they had been 6 able to communicate, and that his attorney had read him the Plea Agreement and explained it to 7 8 9 10 11 12 13 of a plea agreement and provided "erroneous advice on the probable effects of going to trial." 14 Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004). In this case, defense counsel 15 16 17 on the likely effects of going to trial. In fact, it appears from the Change of Plea Proceeding neither grossly misstated the likely outcome of the plea agreement nor gave erroneous advice guilty due to poor advice from his attorney. Furthermore, this Circuit has held that an erroneous sentence prediction constitutes deficient performance only when defense counsel had both grossly misstated the likely outcome him. Exhibit A, pages 8-10. Defendant-Movant is now unable to credibly suggest that he pled

18 transcript that counsel accurately predicted Defendant-Movant's sentence. Defendant-Movant 19 was asked what estimate his attorney had given him and Defendant-Movant responded "14 to 20 21 months". Exhibit A, page 18. While being admonished by the Court that this was only an 21 22 estimate, Defendant-Movant, in fact, received a sentence of 16 months. 23 24 25 proceeding to trial. Due to the fact that Defendant-Movant had been caught transporting illegal 26 entrants in the toolbox of the truck he was driving, it was prudent of his attorney to predict that 27 28 8 Defendant-Movant further takes issue with his attorney's advice about the risks of

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1 he would be found guilty at trial and suggest that a plea agreement provided Defendant2 Movant's best chance for the imposition of a more lenient sentence. As a result, Defendant3 Movant is unable to claim ineffective assistance of counsel concerning his plea agreement and 4 5 his decision to forgo trial in favor of credit for acceptance of responsibility. 6 7 8 the consequences of the agreement. However, as has been previously noted, the district court Lastly, Defendant-Movant argues that his guilty plea was made without his understanding

9 informed Defendant-Movant as to the maximum punishment he could receive under his plea 10 agreement. The entirety of the transcript of the Change of Plea proceeding reflects a defendant 11 fully informed of the consequences of his guilty plea. See Exhibit A. Defendant-Movant stated 12 13 he understood all of his rights, wished to waive those rights and enter into the plea agreement. 14 See Gonzalez, 33 F.3d at 1052. 15 16 17 IV. 18 19 For the foregoing reasons, defendant's Motion to Vacate, Set Aside or Correct Sentence 20 pursuant to 28 U.S.C. § 2255 should be denied and this action dismissed. 21 22 23 24 25 26 27 28 9 PAUL K. CHARLTON United States Attorney District of Arizona S/Karen S. McDonald KAREN S. MCDONALD Assistant U.S. Attorney Respectfully submitted this 13th day of October, 2005. Therefore, Defendant-Movant has failed to establish ineffective assistance of counsel. Conclusion

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CERTIFICATE OF SERVICE

I hereby certify that on October 13, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic 4 Filing and mailed a copy thereof to the following via U.S. Postal Service: 3 5 Arturo Badillo Franco Reg. No. 63978-208 7 Eloy Detention Center 8 1705 E. Hanna Rd. Eloy, AZ 85231 9 6 10 s/Karen S. McDonald 11 KAREN S. McDONALD 12 Assistant U. S. Attorney 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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