Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Glenn B. McCormick Assistant U.S. Attorney Arizona State Bar No. 013328 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Jose Ventura Villa-Hernandez, Defendant. CR-04-00201-006-PHX-SRB CV05-3853-PHX-SRB (JRI) GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO MODIFY AND CORRECT SENTENCE PURSUANT TO TITLE 28 U.S.C. §2255

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

15 motion of defendant Jose Ventura Villa-Hernandez to Vacate, Set Aside, or Correct Sentence 16 pursuant to 28 U.S.C. § 2255 for the reasons set forth in the attached Memorandum. 17 18 19 20 21 22 23 24 25 26 27 28 s/ Glenn B. McCormick GLENN B. McCORMICK Assistant U.S. Attorney Respectfully submitted this 27th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

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1 2 I. Issue Presented 3

MEMORANDUM

Defendant-movant Jose Ventura Villa-Hernandez is currently confined in the Eloy

4 Detention Center, Arizona. On November 29, 2005, defendant filed a pro se motion pursuant 5 to 28 U.S.C. § 2255 alleging ineffective assistance of counsel as a basis for relief. (CR 184.) 6 Defendant claims specifically that at sentencing counsel failed to properly advise defendant 7 regarding the impact of the plea (CR 184, Motion at 3), failed to seek departures for aberrant 8 behavior (CR 184, Motion at 4), fact of his deportability (CR 184, Motion at 5), "Fast Track" 9 (CR184, Motion at 6), and "Early Disposition" program (CR 184, Motion at 7). 10 II. 11 Procedural History On January 28, 2005, pursuant to a written plea agreement with the government,

12 defendant Jose Ventura Villa-Hernandez pled guilty to the offense of Conspiracy to Possess 13 with Intent to Distribute Marijuana in violation of 21 U.S.C. § 841(a)(1) and § 846 as charged 14 in Count 1 of the indictment. (CR 116; Exhibit A - Plea Agreement at 1.) Pursuant to Rule 15 11(c)(1)© of the Federal Rules of Criminal Procedure, the government and the defendant agreed 16 that defendant should receive a stipulated sentence "to the low end of the applicable advisory 17 guideline range if the court finds him eligible for "Safety Valve" pursuant to 5C1.2." (CR 116; 18 Exhibit A at 2). The government also agreed not to take a position regarding the applicability 19 of U.S.S.G. §5C1.2 (Safety Valve) and to stipulate to three levels off the offense level for 20 acceptance of responsibility. (CR 116; Exhibit A at 3). There were no other agreements 21 regarding sentencing. (CR 116; Exhibit A at 2-3.) As part of the plea agreement, defendant 22 specifically waived "any right to raise on appeal or collaterally attack any matter pertaining to 23 this prosecution and sentence if the sentence imposed is consistent with the terms of this 24 agreement." (CR 116; Exhibit A at 4.) 25 The defendant's advisory sentencing guideline range, after all applicable adjustments, was

26 calculated in the presentence report to be 70 to 87 months. (Exhibit B; PSR Excerpt at ¶ 46). The 27 defendant's total offense level was adjusted for Safety Valve pursuant to U.S.S.G. § 5C1.2 and 28
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1 acceptance of responsibility U.S.S.G. § 3E1.1(b) in accordance with the agreements in the plea 2 agreement. (Exhibit B; PSR Excerpt at ¶ 23 and 28). In accordance with the terms of the plea 3 agreement, defendant was sentenced on May 16, 2005 to serve 70 months imprisonment. 4 Judgment was entered in the district court on May 19, 2005. (CR 177; Exhibit C - Judgment.) 5 This pro se motion was filed by defendant on November 29, 2005. (CR 184.) 6 III. 7 8 Analysis A. Defendant's Motion Is Timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132,

9 110 Stat. 1214, became effective on April 24, 1996. It established both procedural and 10 substantive limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. 11 § 2255. Particularly, in section 105 of AEDPA, Congress established a one-year period of 12 limitations for such motions. Having been filed within one year of the date upon which his 13 conviction became final, defendant's motion is therefore timely. 14 B. Defendant Has Failed to Establish Ineffective Assistance of Counsel. 15 1. Standard of Review 16 It is well settled that in order to prevail on a claim of ineffective assistance of counsel, 17 defendant must show (1) that specific acts or omissions of counsel fell below an objective 18 standard of reasonableness, and (2) that defendant was prejudiced by these acts. Strickland v. 19 20 21 Cir. 1994). Where movant cannot establish prejudice, the court need not reach the performance 22 23 There must be a reasonable probability shown that, but for counsel's errors, the result of the 24 proceeding would have been different. Strickland, 466 U.S. at 694. In reviewing defense 25 counsel's performance, a court must "strongly presume that counsel's conduct was within the 26 wide-range of reasonable assistance, and that he exercised acceptable professional judgment in 27 28
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Washington, 466 U.S. 668, 687-8 (1984); Bonin v. Calderon, 59 F.3d 815, 833 (9th Cir. 1995); Wade v. Calderon, 29 F.3d 1312, 1323 (9th Cir. 1994); Campbell v. Wood, 18 F.3d 662, 673 (9th

prong. Strickland, 466 U.S. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 (9th Cir 1995).

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1 all significant decisions made." Strickland, 466 U.S. at 689. This presumption can only be 2 overcome with concrete evidence. United States v. Cronic, 466 U.S. 648, 658 (1984). 3 4 5 2. Defendant knowingly and voluntarily entered a guilty plea, therefore his collateral attack upon his sentence is barred by a valid plea agreement and waiver. An express waiver of the right to appeal in a negotiated plea of guilty is enforceable if

6 knowingly and voluntarily made, and not in violation of due process or public policy. United 7 States v. Bolinger, 940 F.2d. 478, 480 (9th Cir. 1991); United States v. Navarro-Botello, 912 8 F.2d 318, 319 (9th Cir. 1990). A defendant may specifically waive the statutory right to file a 9 § 2255 motion. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Defendant does 10 not present a challenge to the voluntariness of his guilty plea. He does not challenge the waiver 11 provisions of his plea agreement, or claim that he did not understand that he was giving up the 12 right to appeal or collaterally challenge his sentence by entering into the plea agreement and 13 pleading guilty. Consequently, the issue of voluntariness should be deemed waived. United 14 States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000); United States v. Doe, 170 F.3d 1162, 1166 15 n.3 (9th Cir. 1999). 16 When a defendant waives his statutory right to appeal or collaterally challenge his

17 sentence, "he implicitly waive[s] his right to argue ineffective assistance of counsel involving 18 the sentencing issue on direct appeal [or collateral challenge], because an appeal that includes 19 an ineffective assistance of counsel at sentencing argument is still an appeal from one's 20 sentence." Nunez, 223 F.3d at 959. Defendant does not allege, nor do the facts suggest, that the 21 sentence imposed was not in accord with his plea agreement. Defendant argues that counsel 22 failed to seek departures for aberrant behavior (CR 184, Motion at 4), fact of his deportability 23 (CR 184, Motion at 5), "Fast Track" (CR184, Motion at 6), and "Early Disposition" program 24 (CR 184, Motion at 7). As these claims of ineffective assistance of counsel are clearly a 25 sentencing arguments, defendant's express waiver therefore should be enforced. 26 To the extent that defendant may be attempting to also argue that the district court

27 misapplied the sentencing guidelines in calculating his guideline range, that issue is likewise 28
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1 waived. When a plea agreement expressly waives a defendant's right to appeal or collaterally 2 challenge a sentence, then such waiver extends to an appeal or collateral challenge based on an 3 incorrect application of the sentencing guidelines. "If the waiver of an appeal right, despite its 4 express terms, were read to permit challenges to the application of the sentencing guidelines, the 5 waiver would be rendered meaningless and a nullity." United States v. Martinez, 143 F.3d 6 1266, 1271 (9th Cir. 1998) (citing United States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997)); 7 United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1996). 8 9 3. Defendant's claims fail on the merits. Regardless of defendant's plea agreement terms, defendant's claims of ineffective

10 assistance must fail. 11 A. Defendant alleges that he is entitled to a departure for aberrant behavior

12 pursuant to U.S.S.G. §5K2.0 (actually 5K2.20). However, that departure is limited on its face 13 to defendants who commit "a single criminal occurrence or a single criminal transaction". 14 U.S.S.G. §5K2.20(b). In the factual basis for the conspiracy offense for which the defendant 15 was sentenced, he admits to being involved in conspiratorial acts related to at least three separate 16 loads of marijuana. (Exhibit A at 6). Therefore, the defendant's conduct was not an aberrant 17 single occurrence or transaction and the departure is not applicable. 18 B. Defendant contends that he will be subjected to higher security and be

19 denied the opportunity to serve ten percent of his sentence in minimum security confinement due 20 to his status as a deportable alien. Therefore, he argues that he is entitled to a two level 21 downward departure off of his offense level. Defendant cites authority in other circuits in 22 support of his position. However, "the Bureau [of Prisons'] exercise of its discretion to deny [] 23 reassignment to a minimum-security facility is [] an inappropriate basis for departure." United 24 States v. Charry-Cubillos, 91 F.3d 1342, 1344 (9th Cir 1996) quoting and agreeing with United 25 States v. Restrepo, 999 F.2d 640, 645 (2nd Cir. 1993). Although a categorical proscription of 26 departure on this basis would be inappropriate, it must take the case out of the "heartland" of 27 cases to be applicable. Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035 (1996). Nothing 28
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1 in the record takes the defendants situation out of the heartland. Therefore, the defendant is not 2 entitled to the requested downward departure. 3 C. Finally, the defendant contends that his attorney failed to seek a departure

4 for "Fast Track" and "Early Disposition." Fast Track is a name for an "Early Disposition 5 Program." Therefore, although defendant seeks a downward departure for each, they are in 6 effect the same departure and will be treated as such. The defendant's resolution of this case was 7 anything but fast. Fast Track departures reward defendants who waive their rights and resolve 8 their cases early. This is a departure that the government may in its discretion offer. However, 9 the defendant is not entitled to it as a matter of right. The defendant was neither offered an early 10 disposition program departure, nor did he resolve his case early. Therefore, the defendant is not 11 entitled to the departure. 12 IV. Conclusion 13 For all of the foregoing reasons, the Motion of Jose Ventura Villa-Hernandez to Vacate,

14 Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 should be denied and this action 15 dismissed. 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 26th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

s/ Glenn B. McCormick GLENN B. MCCORMICK Assistant U.S. Attorney

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I hereby certify that on January 26, 2006, I served the attached document by first class mail on the following, who are not registered participants of the CM/ECF system: Jose Ventura Villa-Hernandez 63121-208 Eloy Detention Center 1705 East Hanna Road Eloy, Arizona 85231

s/ Glenn B. McCormick GLENN B. MCCORMICK

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