Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona ANDREW C. PACHECO Assistant U.S. Attorney Arizona State Bar No. 018105 Two Renaissance Square 40 North Central Avenue Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 Email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Alfonso Arreguin Beltran, Defendant/Movant. RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE CR 04-0859-PHX-FJM CV 05-3869-PHX-FJM (ECV)

The United States of America, through counsel undersigned, hereby opposes defendant Alfonso Arreguin Beltran's pro se Motion to Vacate, Set Aside or Modify and Correct Sentence by a Person in Federal Custody, Pursuant to Title 28 U.S.C. § 2255 for the reasons set forth in the attached Memorandum of Points and Authorities. Respectfully submitted this 25 th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/ Andrew C. Pacheco ANDREW C. PACHECO Assistant United States Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES Issues Presented Defendant-movant, Alfonso Arreguin Beltran, is currently confined in the Eloy Detention Center in Eloy, Arizona. The first issue (A) is whether the defendant expressly waived his right to file a § 2255 petition when he signed his plea agreement. The remaining issues were raised on December 1, 2005, when defendant filed a pro se motion pursuant to 28 U.S.C. § 2255 alleging that (B) his guilty plea was not knowing and voluntary, and (C) he received ineffective assistance of counsel because counsel failed to (1) inform him of the consequences of his guilty plea, and (2) seek a downward departure (a) for aberrant behavior pursuant to U.S.S.G. § 5K2.0, (b) as a result of defendant's status as a deportable alien, and (c) for "fast track" pursuant to U.S.S.G. §5K2.0 and (d) for "early disposition" pursuant to U.S.S.G. § 5K3.1. Last, (D) defendant asserts that his sentence is affected by Blakelv v. Washington, 542 U.S. 296 (2004). II. Procedural History On February 03, 2005, pursuant to a written plea agreement, defendant pled guilty to count two of the indictment, Possession with Intent to Distribute Five Kilograms or More of Cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(ii) and 18 U.S.C. § 2, a Class A felony. The plea agreement provided for a sentence at the low end of the applicable advisory guideline range. Defendant was thereafter sentenced on June 20, 2005 to seventy (70) months imprisonment followed by supervised release for a term of three (3) years and ordered to pay a special assessment of $100. On November 30, 2005, defendant filed a motion for § 2255 relief seeking a downward departure from his current sentence, which is at the low end of the applicable guideline range. III. Legal Analysis A. Defendant Expressly Waived the Right to File a § 2255 Petition

This Court should dismiss the defendant's petition challenging his sentence, filed under 28 U.S.C. § 2255, because the defendant expressly waived his right to collaterally attack his conviction and sentence when he pled guilty. The defendant pled guilty pursuant to a written 2

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plea agreement. In exchange for his plea deal, the defendant waived "any right to collaterally attack [his] conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack." (Plea Agreement, Exhibit A, p. 4.) Magistrate Judge Anderson engaged the defendant in a colloquy at the change of plea hearing. Part of that colloquy concerned whether the defendant understood the various rights he would have to give up were he to enter a plea of guilty. Magistrate Judge Anderson specifically advised the defendant that by entering the plea agreement, the defendant would be giving up his rights to collaterally attack his conviction and sentence (RT 2/03/05 9, Exhibit B). A defendant may waive his right to file a § 2255 petition if he does so expressly. United States v. Nunez, 223 F.3d 956, 959 (9 th Cir. 2000); United States v. Pruitt, 32 F.3d 431, 433 (9 th Cir. 1994). The defendant also waived "any and all motions . . . which the defendant could assert to the . . . entry of judgment . . . and imposition of sentence upon the defendant providing the sentence is consistent with this agreement." (Exhibit A, p.4.) The defendant's § 2255 petition is a "motion" which challenges his sentence, and is precluded under his waiver. Because the defendant expressly waived his right to file a § 2255 petition, this Court should dismiss the defendant's petition. The defendant challenges the effective assistance of his trial counsel. It is still unclear in the Ninth Circuit whether a defendant may raise an ineffectiveness challenge despite his plea agreement waiver of his right to appeal or file habeas petitions. However, at the very least, even if counsel's alleged ineffectiveness is reviewed, it should be a very limited review. The Ninth Circuit recently stated: We leave open the possibility that Jeronimo might raise his ineffective assistance argument on federal habeas procedure, through a § 2255 motion, notwithstanding that Jeronimo's appeal waiver covered "all his waivable statutory rights to file a petition pursuant to 28 U.S.C. § 2255 challenging the length of his sentence." Although a defendant may waive the statutory right to file a § 2255 petition "challenging the length of his sentence," we do not decide whether such language would necessarily encompass a claim challenging the knowing and voluntary nature of the plea agreement (and accompanying waiver of § 2255 rights). Further, we do not decide whether even an express waiver of all § 2255 rights could be enforced to preclude an ineffective assistance claim implicating the voluntariness of the waiver itself. See 3

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United States v. Pruitt, 32 F.3d 431, 433 (9 th Cir. 1994) (expressing "doubt" that plea agreement could waive such a claim, but declining to reach the issue). United States v. Jeronimo, 398 F.3d 1149, 1156 n. 4 (9 th Cir. Feb. 23, 2005). Thus, even if the defendant's ineffective assistance claims are reviewed, the only colorable ineffectiveness claim would be one relating to counsel's performance affecting the voluntariness and intelligence of the defendant's guilty plea. All other issues are clearly precluded under the plea agreement's waiver provision. This would include the defendant's claim that he should have received a downward departure in his sentencing. B. Defendant's Guilty Plea was Knowing and Voluntary

The Ninth Circuit has recognized the rule that a "defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of his guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases." United States v. Signori, 844 F.2d 635, 638 (9 th Cir.1988), as cited in Jeronimo, 398 F.3d at 1155 (9 th Cir. 2005). The defendant has not shown that his counsel provided deficient advice that rendered his plea involuntary. The record, rather, demonstrates that the defendant was satisfied with his attorney's advice and that he pled guilty knowingly and voluntarily. When he pled guilty, the defendant stated in open court that he understood the nature of the charge and that he was voluntarily entering his plea of guilty, without force, threats or promises. (RT 2/03/05 13-14, Exhibit B.) He also stated that he was satisfied with the performance of his attorney. (RT 2/03/05 10, Exhibit B.) Judge Anderson asked the defendant if he was sure about pleading guilty and the defendant consistently assured the court that he understood and was acting voluntarily. (RT 2/03/05 13, Exhibit B) "Solemn declarations in open court carry a strong presumption of verity." United States v. Rubalcaba, 811 F.2d 491, 494 (9 th Cir.1986) (in rejecting later claim of involuntariness of guilty plea). The defendant has failed to demonstrate how his guilty plea was not knowing and voluntary. In fact, Judge Anderson found that the plea was knowing and voluntary. (RT 2/03/05 27, Exhibit B.) 4

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C.

Defendant's Counsel was Not Ineffective

The defendant alleges that his counsel was ineffective. To obtain relief for a claim of ineffective assistance of counsel, a defendant must show: 1) that counsel's representation fell below an objective standard of reasonableness, and 2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). See Mak v. Blodgett, 970 F.2d 614, 619-20 (9th Cir. 1992) (when a defendant challenges her sentence based on her attorney's failure to introduce mitigating evidence, the defendant must show there is a reasonable probability that the addition of the evidence would have changed her sentence); Lockhart v. Fretwell, 113 S.Ct. 838, 844 (1993) (the prejudice analysis focuses on whether the result of the proceeding was fundamentally unfair or unreliable because of counsel's ineffectiveness). "Because of the difficulties in evaluating attorney performance in hindsight, courts considering ineffective counsel claims `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Jeronimo, id, citing Strickland, 466 U.S. at 689. Defendant specifies counsel's failure to inform him of the consequences of his guilty plea and failure to investigate or present mitigating evidence at sentencing as the deficient performance under Strickland. 1. Defendant was Informed of the Consequences of his Guilty Plea

The defendant, while under oath, swore that he read the plea agreement, understood it, talked to his attorney about it, signed it and agreed to be bound by it. (RT 2/03/05 9-10, Exhibit B.) Defendant was faced with a more serious sentence had he been found guilty after trial. He does not dispute that his base offense was 32, that he was eligible for a two-level reduction under the Safety Valve, and a three-level reduction for acceptance of responsibility and has no criminal history. Under the Sentencing Guidelines, the sentencing range for a total Offense Level 27 and Criminal History Category I is 70 to 87 months. The plea agreement provided for and the defendant was sentenced to the low end of the range, seventy (70) months.

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The defendant has not established that his attorney's performance was deficient and that he was uninformed of the consequences of his guilty plea. The record reflects that the defendant was informed of the consequences of his guilty plea. The defendant understood that by pleading guilty he was giving up certain constitutional rights. (RT 2/03/05 8, Exhibit B.) The defendant indicated that he was shown a copy of the sentencing table, that his attorney explained how it worked and that he understood it. (RT 2/03/05 16, Exhibit B.) The defendant also affirmed that he understood that the guidelines were only advisory. (RT 2/03/05 20, Exhibit B.) The defendant has therefore failed to demonstrate any reasonable probability that he would have proceeded to trial, facing a higher sentence. 2. A Downward Departure was not Warranted a. Aberrant Behavior

Defendant claims that his counsel was ineffective because she failed to seek a downward departure for aberrant behavior pursuant to U.S.S.G. § 5K2.0. This is completely untrue. Defense counsel submitted a Sentencing Memorandum and Request for Downward Departure on April 12, 2005. The request described defendant's activity as aberrant, extremely short lived and followed by acceptance of responsibility and genuine contrition. Not only did defense counsel submit the request, but she argued it at sentencing. Judge Martone agreed that the facts of the case did not establish aberrant behavior. (RT 4/18/05 15, Exhibit C.) "`Aberrant behavior' means a single criminal occurrence or single criminal transaction that (A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law abiding life." U.S.S.G. § 5K2.20, p.s., comment. (n.1.). In applying these factors to the defendant's actions, it is clear that his behavior does not meet the definition of aberrant provided in the sentencing guidelines and comments thereto. The defendant's actions in this case required significant planning. He met with the informant and his co-defendant on multiple occasions before consummating the drug transaction. After securing the drugs, the defendant then drove to another meeting with the informant to 6

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transfer the cocaine and receive payment. The defendant was not merely a courier. He knew how to open the secret compartment containing the drugs. The offense was not of short duration. As noted earlier, to set up the cocaine deal the defendant participated in multiple meetings, including one where the defendant brought a sample of drugs for tasting. These meetings spanned a period of approximately one month. This crime was neither the result of a momentary lapse in judgment nor merely a crime of opportunity. The last factor is whether the current criminal behavior represents a marked deviation from an otherwise law abiding life. The defendant denies ever having sold drugs previously and asserts that he had no intention to ever do it again. This allegation is belied by the fact that the defendant told the CI that he was capable of supplying thirty (30) to forty (40) kilos of cocaine and one thousand (1,000) pounds of marijuana and the fact that the defendants showed the CI marijuana and indicated they could ship it anywhere. In any event, even if defendant's behavior could be classified as aberrant, under U.S.S.G § 5K2.20(c)(3), the Court cannot depart downward based on aberrant behavior if the offense is a "serious drug trafficking offense." The Sentencing Commission defines a "serious drug trafficking offense" as "any controlled substance offense under title 21, United States Code, other than simple possession under 21 U.S.C. § 844, that provides for a mandatory minimum term of imprisonment of five years or greater, regardless of whether the defendant meets the criteria of § 5C1.2..." U.S.S.G. § 5K2.20 (n. 1.). Defendant was charged with, and pled guilty to, a serious drug trafficking offense and therefore is not entitled to a downward departure based on aberrant behavior. b. Defendant's Status as a Deportable Alien

The defendant claims that his counsel was ineffective because she failed to seek a downward departure for his status as a deportable alien. First, the Court was aware of defendant's status as a deportable alien at sentencing. Even if defendant's attorney had made the argument that the Court should depart downward based on this status, it probably would not have changed the outcome. See Lizarraga-Lopez v. United States, 89 F. Supp. 2d 1166, 1170 7

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(S.D. Cal. 2000)(concluding that defendant's "status as a deportable alien was squarely within the heartland of the Sentencing Guidelines and was specifically accounted for in the early release statute"); United States v. Martinez-Villegas, 993 F. Supp. 766, 781 (C.D. Cal. 1998)(denying downward departure based on deportable alien status and noting that "the Ninth Circuit has shown a reluctance to allow deportability status as a basis for a downward departure"); cf. United States v. Davoudi, 172 F.3d 1130, 1133-34 (9 th Cir. 1999)(upholding district court's discretionary decision not to depart downward based on deportable alien status). Second, defendant notes that the "Memorandum to all Prosecutors (Federal)" dated April 28, 1995 instructs federal prosecutors to recommend a one (1) or two (2) level downward departure "in exchange for the alien's concession of deportability." However, defendant has not presented any evidence that he has agreed to accept a final deportation order. Nor does he address whether the United States has chosen to make a downward departure recommendation in exchange for such agreement, or whether this memorandum, which is over ten years old, is even still in effect. Undersigned counsel has not seen any such memorandum. Last, defendant's equal protection assertion that he "will be confined to a higher security facility than a comparable American counterpart on accounts of factors unrelated to moral worthiness and be subjected to more sever punishment" because he "will not serve the last 10% of his sentence in a minimum security facility" but rather a "deportation center" fails. The Ninth Circuit has found that this is not an equal protection violation and "excluding prisoners with detainers from participating in community-based treatment programs, and consequently from sentence reduction eligibility, is at least rationally related to the BOP's [Bureau of Prison's] legitimate interest in preventing prisoners from fleeing detainers while participating in community treatment programs." McLea v. Crabtee, 173 F.3d 1176, 1186 (9 th Cir. 1999). Because defendant's counsel's failure to seek a downward departure based on defendant's deportable alien status did not prejudice the defense, this ineffective assistance claim fails.

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c.

Fast Track

Defendant alleges that his attorney was ineffective because she failed to seek a downward departure based on his compliance with a "fast track" program. Defendant cites U.S.S.G § 5K2.0, however, this section is the "policy statement" on grounds for departure and the "fast track" program is governed by § 5K3.1 which is discussed below. d. Early Disposition

Defendant alleges that his attorney was ineffective because she failed to seek a downward departure pursuant to U.S.S.G. § 5K3.1 based on his compliance with an "early disposition" program. Defendant's argument for a downward departure based on the "fast track" program should also be pursuant to U.S.S.G. § 5K3.1 and thus will be discussed in this section. Section 5K3.1 of the Federal Sentencing Guidelines provides that a court may depart downward upon motion by the government. Defendant was not entitled to the departure without it being requested by the government. Thus, it was reasonable for his counsel not to argue for it. Lacking a showing of unreasonable conduct by his attorney, defendant has failed to meet the first prong of the Stickland test and his claim for ineffective assistance of counsel must fail. See Strickland, 466 U.S. at 687 (To succeed on a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was deficient, and (2) the deficiency prejudiced the defendant). D. Blakely does not Apply

Defendant contends that he is entitled to a downward departure based on Blakely. The Supreme Court in Blakely applied its prior holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 542 U.S. at 301. Defendant has not identified at all how Blakely impacts his sentence. A downward departure is a means by which a court may reduce a defendant's sentence below the prescribed statutory maximum. Since a downward departure

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takes the sentence below and not above the prescribed statutory maximum, Blakely does not apply to them. The defendant also would not be entitled to any relief under Booker as that ruling only applies to cases that are on direct review and not yet final, not cases such as this involving a collateral attack. United State v. Booker, 543 U.S. 220, 268 (2005). As such, the defendant is not entitled to relief under Blakely or Booker. IV. CONCLUSION The record reflects that the defendant knowingly and voluntarily pled guilty. Defendant asserts an ineffective assistance of counsel claim based on his allegation that his attorney failed to make certain arguments that might have reduced his sentence. However, the sentencing result was neither unfair nor unreliable because the defendant was sentenced within the sentencing range of the plea agreement. Defendant's claim that his guilty plea was not knowing and voluntary and his claim of ineffective assistance of counsel related to his plea agreement and sentencing should be dismissed. Respectfully submitted this 25 th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/ Andrew C. Pacheco ANDREW C. PACHECO Assistant United States Attorney

CERTIFICATE OF SERVICE

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I hereby certify that on July 25, 2006, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Alfonso Arreguin Beltran Prisoner No. 82701-008-C321 Eloy Detention Center 1705 East Hanna Road Eloy, Arizona 8523

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