Free Report and Recommendation - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff-Respondent, vs. Marcos Vazquez-Palacios, Defendant-Movant.

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No. CIV-05-1828-PHX-NVW (GEE) CR-03-1029-PHX-NVW REPORT AND RECOMMENDATION

On June 17, 2005, Marcos Vazquez-Palacios, an inmate confined at the United States Penitentiary, Victorville, in Adelanto, California, filed the instant Motion to Vacate, Set Aside or Correct Sentence pursuant to Title 28, United States Code, Section 2255. [doc. #111]1 Vazquez-Palacios asserts the following grounds for relief: (1) his counsel was ineffective when he failed to adequately and accurately explain the plea offer and (2) his sentence was illegal because it was based on facts found by the court in violation of Booker v. United States. Id. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Edmonds for a report and recommendation. The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order denying the motion.

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The first ground for relief should be denied because Vazquez-Palacios cannot show his counsel's performance was deficient. The second ground should be denied because VazquezPalacios waived his right to collaterally challenge his sentence.

Summary of the Case On April 27, 2004, the defendant, Marcos Vazquez-Palacios, pleaded guilty to Illegal Alien in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). (Government's response, p. 2.) In the plea agreement, the parties agreed to stipulate to an upward departure from the guidelines resulting in a sentence of 120 months. Id., Exhibit 1, p. 2. The government agreed to not prosecute Vazquez-Palacios for hostage taking, conspiracy to commit hostage taking, harboring illegal aliens, conspiracy to harbor illegal aliens, transporting illegal aliens or conspiracy to transport illegal aliens. Id., p. 3. The defendant further agreed to waive "any right to raise on appeal or to collaterally attack any matter pertaining to this prosecution and sentence if the sentence imposed is consistent with the terms of this agreement." Id., p. 4. At the change of plea hearing, Vazquez-Palacios testified he discussed the contents of the plea agreement with his attorney and understood it all. Id., Exhibit 3, pp. 8-9. The court informed Vazquez-Palacios of the constitutional rights he would forfeit by pleading guilty. Id., pp. 6-7. The court specifically directed Vazquez-Palacios' attention to the waiver of appeal rights in the plea agreement. Id., p. 8. Vazquez-Palacios said he understood and was willing to give up these rights by pleading guilty. Id, p. 19. He further agreed the government could prove by clear and convincing evidence that he and other individuals went to the AAA Motel in Mesa, Arizona, room # 15, and through a display of firearms and verbal threats forcibly removed 14 illegal aliens and transported them to 5502 North 27th Avenue, # 18, Phoenix, Arizona where they were held hostage until a ransom was paid for their release. Id., p. 16. On July 26, 2004, Vazquez-Palacios was sentenced to 120 months' imprisonment in accordance with the plea agreement. Id., p. 2. On June 17, 2005, he filed the instant Motion to Vacate, Set Aside or Correct Sentence pursuant to Title 28, United States Code, Section
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2255. [doc. #111] Vazquez-Palacios claims (1) his counsel was ineffective by failing to adequately and accurately explain the plea offer and (2) his sentence was illegal because it was based on facts found by the court in violation of Booker v. United States. Id. The government filed a response on September 28, 2005. The government argues the petition should be dismissed because Vazquez-Palacios waived his right to appeal. In the alternative, the government argues counsel was not ineffective and the sentencing procedure was not error.

Discussion A motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 provides a remedy for those prisoners in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack . . . . 28 U.S.C. § 2255. In his first ground for relief, Vazquez-Palacios argues his counsel was ineffective when he failed to adequately and accurately explain the plea offer. This argument is not forfeit by the waiver provision in the plea agreement because it bears on whether the defendant entered into the plea agreement knowingly and voluntarily. Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005). "The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel." Luna v. Cambra, 306 F.3d 954, 961(9th Cir. 2002), amended at, 311 F.3d 928 (9th Cir. 2002) (quoting Strickland v. Washington, 466 U.S. 668 (1984)). To establish a violation of this right, the defendant must prove "counsel's performance was deficient" and the "deficient performance prejudiced the defense." Id. To show prejudice, the defendant "must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
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"Judicial scrutiny of counsel's performance must be highly deferential." Strickland v. Washington, 466 U.S. 668, 689 (1984). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." Id. (internal citation omitted). "To establish a claim of ineffective assistance of counsel based on alleged erroneous advice regarding a guilty plea, a petitioner must demonstrate more than a mere inaccurate prediction." Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004) (internal punctuation removed). "Erroneous predictions regarding a sentence are deficient only if they constitute gross mischaracterization of the likely outcome of a plea bargain combined with erroneous advice on the probable effects of going to trial." Id. Vazquez-Palacios first argues his counsel failed to explain to him that the plea required him to waive his right to appeal. The record of the hearing, however, contradicts his allegations. At the change of plea hearing, Vazquez-Palacios testified under oath that he discussed the contents of the plea agreement with his attorney and understood it all. (Government's response, Exhibit 3, pp. 8-9.) The court informed Vazquez-Palacios of the constitutional rights he would forfeit by pleading guilty. Id., pp. 6-7. The court specifically directed Vazquez-Palacios' attention to the waiver of appeal rights in the plea agreement. Id., p. 8. Vazquez-Palacios said he understood and was willing to give up these rights by pleading guilty. Id, p. 19. The plea colloquy indicates Vazquez-Palacios was aware of the waiver provision in the plea agreement. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("Solemn declarations in open court carry a strong presumption of verity."). Moreover, Vazquez-Palacios' attorney provided an affidavit in which he states Vazquez-Palacios was aware of the waiver provision in the plea. (Government's response, Exhibit 2.) The court concludes Vazquez-Palacios was aware of the waiver provision in the plea agreement when he pleaded guilty.

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Vazquez-Palacios further claims his counsel misrepresented the risks of going to trial and his possible sentence if he rejected the plea offer. He believes his risk of going to trial was minimal because his indictment contained only one count, possession of firearms, and he could not be tried for crimes that were not contained in the indictment. He further believes the grand jury that indicted him was given all the evidence against him and declined to indict him for anything other than possession of firearms. Accordingly, he believes his attorney's advice that he faced "a life sentence without parole" grossly misrepresented the sentence he might have received had he rejected the plea and insisted on going to trial. Vazquez-Palacios, however, is incorrect in his assumptions about his indictment. In October of 2003, the grand jury indicted Vazquez-Palacios for possession of firearms. [doc. # 17] The grand jury did not indict him for the hostage taking offenses because the government did not present this additional evidence to the grand jury. (Grand jury transcript, pp. 2-11., submitted ex parte in camera.) In fact, the government was not in possession of this additional evidence until several months later when the government found a "key witness" who could implicate Vazquez-Palacios in the hostage taking activity. (Government's response, Exhibit 2.) Accordingly, nothing prevented the government from returning to the grand jury and seeking a superceding indictment that included the hostage taking offenses. If it had done so, VazquezPalacios would have faced a substantially increased sentence. Hostage taking, for example, is a level 24 offense. (Government's response, p. 11.) Under the instant circumstances, Vazquez-Palacios faced a sentencing range of 210-262 months.2 Id. Because weapons were brandished during the offense, Vazquez-Palacios faced an additional seven-year sentence under 18 U.S.C. §924(c) which would run consecutively with the hostage taking sentence. Id. Vazquez-Palacios faced a total sentence of 294-346 months, substantially larger than the 120-month sentence he received pursuant to the plea agreement. Id. Vazquez-Palacios may not have faced "a life sentence without parole," but he did face a

The calculation assumes (1) application of the 2002 sentencing guidelines, (2) a ransom demand was made (§ 2A4.1(b)(1)), (3) the vulnerable victim enhancement applies (§ 3A1.1), (4) the additional victims enhancement applies (§ 3D1.4), and (5) criminal history category I applies. Case 2:03-cr-01029-NVW -5Document 124 Filed 01/27/2006 Page 5 of 7

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much stiffer sentence than the 120 months offered in the plea agreement if he insisted on going to trial. His attorney's advice was not a "gross mischaracterization of the likely outcome of [the] plea bargain combined with erroneous advice on the probable effects of going to trial." Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004). His attorney's performance was not deficient. In his second ground for relief, Vazquez-Palacios argues his sentence violated the holding announced in United States v. Booker, 543 U.S. 220 (2005) because it was based on facts not alleged in the indictment nor found by a jury. This issue is waived. In the plea agreement, Vazquez-Palacios agreed to waive "any right to raise on appeal or to collaterally attack any matter pertaining to this prosecution and sentence if the sentence imposed is consistent with the terms of this agreement." (Government's response, p. 4.) The sentence imposed, 120 months, is consistent with the terms of the agreement. Accordingly, Vazquez-Palacios waived his right to bring this collateral challenge. See United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000), cert. denied, 534 U.S. 921 (2001). In the alternative, this issue may be denied on the merits. Vazquez-Palacios argues his sentence was based on facts not alleged in the indictment nor found by a jury. He is incorrect. His sentence was stipulated in the plea agreement. It was not based on the guidelines. Booker does not apply. See United States v. Pacheco-Navarette, 432 F.3d 967, 971 (9th Cir. 2005) (Pacheco-Navarette was Vazquez-Palacios' co-defendant.). Finally, even if Booker applied to this issue, Vazquez-Palacios still is not entitled to relief. Booker does not apply retroactively to cases, such as this one, on collateral review. United States v. Cruz, 423 F.3d 1119, 1120-21 (9th Cir. 2005) (per curiam), cert. denied, __ U.S. __, 2006 WL 152073. Accordingly, this ground for relief must be denied.

RECOMMENDATION The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order

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DENYING the Motion to Vacate, Set Aside or Correct Sentence pursuant to Title 28, United States Code, Section 2255. [#111]

Pursuant to 28 U.S.C. §636 (b) and FED.R.CRIM.P. 59 (b)(2), any party may serve and file written objections within 10 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should direct them to the District Court by using the following case numbers: CIV-05-1828-PHX-NVW; CR-03-1029-PHX-NVW. The Clerk is directed to send a copy of this report and recommendation to all parties.

DATED this 27th day of January, 2006.

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