Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona MICHAEL A. LEE Special Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 018065 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-03-1029-PHX-NVW Plaintiff, v. Marcos Vazquez-Palacios, Defendant. CV-05-1828-PHX-NVW (GEE) RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United States of America, hereby opposes the Motion of defendant MARCOS VAZQUEZ-PALACIOS 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, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Michael A. Lee MICHAEL A. LEE Special Assistant U.S. Attorney

Case 2:03-cr-01029-NVW

Document 120

Filed 09/28/2005

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MEMORANDUM OF POINTS AND AUTHORITIES

NATURE OF THE CASE; PROCEDURAL HISTORY On September 4, 2003, a complaint was filed alleging Defendant was an Illegal Alien in

5 Possession of a Firearm, in violation of Title 18, United States Code, Sections 922(g)(5) and 6 924(a)(2). (CR 1.)1 On October 2, 2003, the grand jury returned an indictment charging

7 Defendant with the same violation. (CR 17.) Defendant joined his co-defendant's in a motion 8 to suppress evidence and statements, which hearing was held before the Honorable James E. 9 Teilborg, United States District Court Judge, on February 6 and 18, 2004. (CR 37, 38.) The 10 motions were denied by Judge Teilborg on February 20, 2004. (CR 41.) Per an ex parte motion 11 filed by Defendant's counsel, an investigator was appointed by Judge Teilborg to Defendant's 12 case on April 1, 2004. (CR 50.) Defendant entered a guilty plea to the indictment pursuant to 13 a plea agreement on April 27, 2004. (CR 57.) 14 15 16 17 18 19 20 21 22 23 24 25 26 The abbreviation "CR" refers to the Clerk's Record and will be followed by the pertinent document number(s). The abbreviation "RT" will refer to the Reporter's Transcript 27 and will be followed by a date and page number(s). 28
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The following facts are taken from the factual basis in the plea agreement: On or about August 31, 2003, and continuing through on or about September 3, 2003, in the District of Arizona, Defendant knowingly possessed one (1) J.C. Higgins, Model 25, .22 caliber rifle, serial number 5832500, and one (1) Norinco SKS, 7.62 caliber rifle, serial number 7003854, which firearms had been shipped and transported in interstate or foreign commerce. On or about August 31, 2003, and continuing through on or about September 3, 2003, when Defendant possessed these firearms, he was illegally and unlawfully in the United States. Defendant is a citizen of Mexico who illegally entered the United States on or before February of 2003, and he did not obtain permission to enter or remain in the United States.

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Basis For Stipulated Upward Departure Sentence: Sentencing Guideline Section 5K2.9; Criminal Purpose. Defendant committed the offense of Title 18, United States Code, Sections 922(g)(5) and 924(a)(2) to facilitate the commission of other offenses, as noted below, supporting the stipulated upward departure sentence as it is more reflective of the actual seriousness of Defendant's conduct. The government can prove, by clear and convincing evidence, that some time before, but no later than on or about August 18, 2003, and continuing through on or about September 3, 2003, in the District of Arizona, Defendant conspired with and/or committed with other individuals violations of Title 8, United States Code, Section 1203 Hostage Taking; Title 8, United States Code, Sections 1324(a)(1)(A)(iii), (a)(1)(A)(v)(II), and (a)(1)(B)(I) Harboring Illegal Aliens; and Title 8, United States Code, Sections 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II) Transporting Illegal Aliens. On August 18, 2003, Defendant and co-conspirators Victor Alfonso Gomez-Vera, Amilcar Lopez-Cruz, and others, went to room #15 of the AAA Motel, 6763 East Main, Mesa, Arizona. At room #15, utilizing the display of firearms and verbal threats, they forcibly removed approximately 14 illegal aliens from this room and placed them into a van which was used to transport them to 5502 North 27th Avenue, unit #18, Phoenix, Arizona. At this location, along with other co-conspirators, including Rafael PachecoNavarette, Defendant held the aliens hostage until substantial sums of ransom money were paid for the release of the aliens from the alien's relatives and/or acquaintances. (Exhibit 1.) Defendant was sentenced to 120 months imprisonment, the maximum statutory sentence for

24 a violation of 18 U.S.C. 922(g)(5) and 924(a)(2), on July 26, 2004, by the Honorable Neil V. 25 Wake, United States District Court Judge. (CR 74.) On June 17, 2005, Defendant filed a pro 26 se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Defendant 27 currently is confined at the United States Penitentiary, Victorville, in Adelanto, California. 28
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1 II. ISSUES 2 In his 2255 motion, Defendant alleges two bases for relief: (1) that his counsel was

3 ineffective as he failed to inform him of the nature of the charges, his potential sentence, and his 4 ability to appeal, and (2) his sentence violates the Sixth Amendment because it is allegedly based 5 on judge-found facts, in violation of United States v. Booker, 125 S.Ct. 738, 2005 WL 50108 6 (2005). 7 8 9 10 A. The Defendant's Habeas Petition Should Be Dismissed Because He Expressly Waived the Right Collaterally Attack Any Matter Pertaining to His Prosecution or Sentence.

Defendant pled guilty pursuant to written plea agreement. During the plea colloquy, the

11 district court specifically referred to Defendant's waiver of appeal in the plea agreement: 12 13 14 Defendant: Yes. 15 16 (RT 04/27/04 8.) 17 The relevant portion of page 4 of the written plea agreement provides as follows, under the The Court: Also, in this plea agreement that you've signed its provided in there that you are giving up any right to raise on appeal or collaterally attack any matter pertaining to this prosecution and sentence as long as the sentence imposed is consistent with the terms of the plea agreement. Do you understand that?

18 heading "WAIVER OF DEFENSES AND APPEAL RIGHTS": 19 20 Defendant hereby waives any right to raise on appeal or collaterally attack any matter pertaining to this prosecution and sentence if the sentence imposed is consistent with the terms of this agreement.

21 (Exhibit 1.) 22 This Court should dismiss Defendant's petition challenging his sentence, filed under 28

23 U.S.C. § 2255, because he expressly waived his right to collaterally attack his conviction and 24 sentence when he pled guilty. A defendant may waive his right to file a § 2255 petition if he 25 does so expressly. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000); United States v. 26 Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). Defendant was sentenced exactly as he stipulated to in 27 the plea agreement; 120 months. (CR 74; Exhibit 1.) Therefore, this Court should dismiss 28 Defendant's petition.
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B.

Defense Counsel Was Not Ineffective.

Defendant argues that his counsel was ineffective because he failed to inform him of the

3 nature of the charges, his potential sentence, and his ability to appeal. 4 To obtain relief for a claim of ineffective assistance of counsel, a defendant must show: 1)

5 that counsel's representation fell below an objective standard of reasonableness, and 2) that 6 counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 7 668, 687-88, 692 (1984). See Mak v. Blodgett, 970 F.2d 614, 619-20 (9th Cir. 1992) (when a 8 defendant challenges his sentence based on his attorney's failure to introduce mitigating 9 evidence, the defendant must show there is a reasonable probability that the addition of the 10 evidence would have changed his sentence); Lockhart v. Fretwell, 113 S.Ct. 838, 844 (1993) 11 (the prejudice analysis focuses on whether the result of the proceeding was fundamentally unfair 12 or unreliable because of counsel's ineffectiveness). 13 As Defendant pled guilty, he can only complain of his lawyer's ineffectiveness in relation

14 to how it may have affected the voluntariness of his plea. 15 16 17 18 "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [deficient]." Tollett v. Henderson, 411 U.S. 258, 267 (1973)

19 The Ninth Circuit has recognized this rule: "A defendant who pleads guilty upon the advice of 20 counsel may only attack the voluntary and intelligent character of his guilty plea by showing that 21 the advice he received from counsel was not within the range of competence demanded of 22 attorneys in criminal cases." United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988), as cited 23 in United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005). "Because of the difficulties 24 in evaluating attorney performance in hindsight, courts considering ineffective counsel claims 25 `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable 26 professional assistance.'" Jeronimo, id, citing Strickland, 466 U.S. at 689. 27 "A guilty plea cannot be induced by . . . misrepresentation." Jeronimo, 398 F.3d at 1155,

28 citing Signori, 844 F.2d at 638 (internal citation omitted). "[A] defendant who pleads guilty in
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1 reliance on his or her attorney's `gross mischaracterization of the likely outcome' of his or her 2 case may be entitled to withdraw the plea on ineffective assistance of counsel grounds." 3 Jeronimo, id., citing Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986); see also United States v. 4 Michlin, 34 F.3d 896, 899 (9th Cir. 1994) ("We have held that an erroneous prediction by a 5 defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea, 6 although an exception might be made in a case of gross mischaracterization of the likely 7 outcome.") 8 Furthermore, Defendant's petition may be dismissed without a hearing because he needs

9 to meet both prongs of the Strickland test and fails to meet either one. See United States v. 10 Schaflander, 743 F.2d 714, 717 (9th Cir. 1985) ("a hearing must be granted unless the movant's 11 allegations, when viewed against the record, do not state a claim for relief or are so palpably 12 incredible or patently frivolous as to warrant summary dismissal"). Defendant has not shown 13 that his counsel provided deficient advice that rendered his plea involuntary. The record, rather, 14 demonstrates that Defendant was satisfied with his attorney's advice and that he pled guilty 15 knowingly and voluntarily. 16 When he pled guilty, Defendant confirmed to the district court that he understood the nature

17 of the charge and that he was voluntarily entering his plea of guilty, without force, threats or 18 promises. (RT 04/27/04 9,10.) Defendant confirmed his attorney had the contents of his plea 19 agreement translated, that they went over the plea agreement prior to Defendant signing it, and 20 that he was able to answer all the Defendant's questions regarding it. (RT 04/27/04 8, 9.) 21 Defendant indicated he was satisfied with the performance of his attorney. (RT 04/27/04 6.) 22 The district court further inquired of Defendant if he understood that he did not have to enter into 23 the plea agreement, and if he had decided it was in his best interest to enter into the plea 24 agreement. Defendant responded affirmatively to both questions. (RT 04/27/04 9, 10.) 25 As previously noted, during his plea colloquy and in his plea agreement, Defendant waived

26 his right to appeal or collaterally attack any matter pertaining to his prosecution and sentence if 27 the sentence imposed was consistent with the terms of his plea agreement. (Exhibit 1, RT 28 04/27/04 8.)
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In addition, during the plea colloquy, the district court specifically referred to the stipulated

2 upward departure sentence and charges the government agreed not to pursue: 3 4 5 6 7 8 9 10 11 The Court: Now, in this particular plea agreement it is stipulated that the Court will make an upward departure, which will involve potentially going to a higher offense level, sufficient to impose a sentence of 120 months. Do you understand that.? The Defendant: Yes. ... The Court: The plea agreement also contains the Government's stipulation, commitment not to prosecute you for certain charges pertaining to Hostage Taking, Conspiracy to Commit Hostage Taking, harboring Illegal Aliens, Conspiracy to Harbor Illegal Aliens, Transporting Illegal Aliens, or conspiracy to Transport Illegal Aliens as they might relate to the events occurring between August 18, 2003 and September 3, 2003 at the AAA Motel, 6763 East Main in Mesa, and at the apartment Unit Number 18 at 5502 North 27th Avenue in Phoenix, Arizona. You understand that? The Defendant: Yes.

12 (RT 04/27/04 13, 14.) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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The relevant portions of pages 2 and 3 of the written plea agreement provides as follows: AGREEMENTS REGARDING SENTENCING a. Pursuant to Fed. R. Crim. P. 11(c)(1)(c), the United States and Defendant stipulate to an upward departure whereby the sentence of imprisonment will be 120 months. ... AGREEMENT TO DISMISS OR NOT TO PROSECUTE a. The remaining counts in the Indictment, Counts 2 and 3, pertain solely to codefendant Rafael Pacheco-Navarette. b. The United States agrees not to prosecute Defendant for the following charges as they relate to the events that occurred on August 18, 2003, at the AAA Motel, 6763 East Main, Mesa, Arizona, and continuing on from August 18, 2003, until September 3, 2003, at 5502 North 27th Avenue, unit #18, Phoenix, Arizona: 1. 18 U.S.C. § 1203; Hostage Taking; Conspiracy to Commit Hostage Taking; 2. 8 U.S.C. §§ 1324(a)(1)(A)(iii), (a)(1)(A)(v)(II), and (a)(1)(B)(I); Harboring Illegal Aliens; Conspiracy to Harbor Illegal Aliens; 3. 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II); Transporting Illegal Alien; Conspiracy to Transport Illegal Aliens. ... (Exhibit 1.)

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The district court then specifically referred to elements of the offense of Title 18, United

2 States Code, Sections 922(g)(5) and 924(a)(2), and the factual basis for this offense, as set forth 3 in the plea agreement. (Exhibit 1; RT 04/27/05 14,15.) Defendant agreed those facts were true. 4 (RT 04/27/05 15.) The district court then discussed with Defendant the factual basis for the 5 stipulated upward departure sentence, as set for in the plea agreement. (Exhibit 1; RT 04/27/05 6 15-17.) Defendant agreed the government could prove those facts by clear and convincing 7 evidence. (RT 04/27/05 17.) 8 Just before the close of the change of plea hearing, the district court asked Defendant if he

9 was guilty of the charge, to which he indicated "Yes, I plead guilty." The district court then 10 declared the Defendant's plea was knowingly, intelligently, and voluntarily made. (RT 04/27/05 11 19.) 12 "Solemn declarations in open court carry a strong presumption of verity." United States v.

13 Rubalcaba, 811 F.2d 491, 494 (9th Cir.1986) (in rejecting later claim of involuntariness of guilty 14 plea). 15 In Defendant's plea agreement, he agreed that he was satisfied with his attorney and that he

16 knew the provisions of the plea. (Exhibit 1.) 17 Furthermore, as noted in the attached affidavit prepared by Defendant's prior counsel,

18 Richard L. Juarez, Defendant was advised by him on multiple occasions regarding his rights, the 19 charge he faced, potential additional charges, the evidence, and the terms of his plea agreement. 20 (Exhibit 2.) In particular, Mr. Juarez states: 21 22 23 24 25 26 27 28
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During the course of the representation, before and after the change in the government's position, I met several times with Mr. Vasquez to review the evidence and nature of the allegations against him, I explained to him the possible defenses to the pending, as well as potential, allegations, his criminal liability exposure, the U.S. Sentencing Guidelines and their application to his circumstances and other issues relevant to his case. ... Prior to the plea hearing where Mr. Vasquez entered his plea of guilty in accordance with the terms of his Plea Agreement, I read the entire plea agreement to him in Spanish. Mr. Vasquez asked questions about the plea agreement. We fully discussed his right to reject the plea offer and to make the government prove its case against him to a jury of his peers, the appellate rights he would be losing should he accept the plea agreement, the sentence to which he was agreeing, the government's agreement not to

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prosecute him on additional charges related to hostage taking and the consequences of his accepting the plea agreement and pleading guilty according to its terms. (Exhibit 2, ¶ 3, 6.)

3 Defendant's counsel effectively represented the interests of Defendant through all stages of 4 Defendant's proceedings; preliminary hearing, motion hearing, change of plea, and sentencing. 5 (CR 12, 15, 37, 38, 57, and 74.) Defendant has not established that his attorney's performance 6 was deficient, much less any deficient performance that would render Defendant's guilty plea 7 involuntary. 8 9 C. 10 11 The Decisions in Blakely and Booker Are Not Retroactively Applicable on Collateral Review.

Defendant asserts his sentence violates the Sixth Amendment because it is allegedly based However, neither Blakely or Booker are

12 on judge-found facts, in violation of Booker.

13 retroactively applicable on collateral review. First, the Ninth Circuit concluded in United States 14 v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002), that Apprendi v. New Jersey, 530 U.S. 466 15 (2000), is not retroactively applicable. The Supreme Court cases in Blakely v. Washington, ___ 16 U.S. ___ , 124 S.Ct. 2531 (2004), and United States v. Booker, __ U.S. __ , 125 S.Ct. 738 17 (2005), merely apply Apprendi. In Booker, the Supreme Court held that its decision in that case 18 applies to cases not yet final on direct review. 125 S.Ct. at 769. Every circuit to consider the 19 issue has held that Blakely and Booker do not apply in collateral relief proceedings like this one, 20 regardless of whether the case involves a first petition or a second or successive petition. 21 22 23 24 25 26 27 28 The Ninth Circuit has stated: Petitioner has filed an application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district court. Petitioner contends that his sentence is unconstitutional under the Supreme Court's recent opinion in Blakely v. Washington, --- U.S. ----, 124 S.Ct. 2531, th 159 L.Ed.2d 403 (2004). In our decision in Rees v. Hill, 286 F.3d 1103 (9 Cir. 2002), we determined that, because the Supreme Court had not mandated that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), be applied retroactively on collateral review, Rees could not meet the requirements in 28 U.S.C. § 2244 for obtaining leave to file a second petition for habeas relief based on an alleged violation of Apprendi. Rees at 1104; see also United States v. SanchezCervantes, 282 F.3d 664 (9th Cir. 2002). Similarly, the Supreme Court has not made Blakely retroactive to cases on collateral review. Petitioner's application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district
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court is therefore denied. See also In re Dean, 375 F.3d 1287 (11th Cir. 2004); Simpson v. United States, 376 F.3d 679 (7th Cir. 2004).

3 Cook v. United States, 386 F.3d 949, 950 (9th Cir. 2004). 4 The decisions from other circuits are similar. See Green v. United States, 397 F.3d 101,

5 102-03 (2nd Cir. 2005) ("In Booker, the Supreme Court noted that its holdings in that case apply 6 to `all cases on direct review' but made no explicit statement of retroactivity to collateral cases. 7 . . . Thus, neither Booker nor Blakely apply retroactively to Green's collateral challenge."); 8 Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir. 2005); United States v. 9 McReynolds, 397 F.3d 479, 480-81 (7th Cir. 2005) (Booker/Blakely only applies to cases not yet 10 final on direct review on the day that Booker was decided, January 12, 2005; ruling was based 11 on Schriro v Summerlin, ___ U.S. ___ , 124 S.Ct. 2519 (2004) ­ which held that Ring v. 12 Arizona, 536 U.S. 584 (2002), another of Apprendi's progeny, is not retroactive ­ and the 13 language of Booker itself); United States v. Price, 2005 WL 535361 (10th Cir., Mar. 8, 2005); 14 Bey v United States, 399 F.3d 1266 (10th Cir. 2005); In re Anderson, 396 F.3d 1336, 1338-40 15 (11th Cir. 2005) (denying requests for permission to file successive § 2255 motions based on 16 Blakely and Booker). The Eleventh Circuit recently reiterated that the Booker decision is not 17 retroactively applicable to cases on collateral review. Varela v. United States, 2005 WL 18 367095, at *3-4 (11th Cir. Feb. 17, 2005) ("as the Supreme Court concluded in Schriro, we 19 conclude that Booker's constitutional rule falls squarely under the category of new rules of 20 criminal procedure that do not apply retroactively to § 2255 cases on collateral review"). 21 22 23 24 D. Defendant Received the Stipulated Sentence He Bargained For. Thus Booker and Blakely are simply inapplicable to Defendant's habeas case.

Lastly (as a courtesy to Defendant) Defendant mistakenly asserts that if the plea

25 agreement is vacated, he would face a sentence greatly reduced from the 120 months he 26 stipulated to, indicating his maximum sentence would only be 68 months. Utilizing the facts 27 stipulated in the plea agreement, under the applicable 2002 version of the guidelines, a hostage 28 taking sentence is quite severe indeed:
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1 § 2A4.1; Hostage Taking: 2 3 4 5 6 7 1. Base Offense Level; § 2A4.1(a) 2. Specific Offense Characteristics 1) Ransom Demand Made; § 2A4.1(b)(1) 2) Dangerous Weapon Used; § 2A4.1(b) (3) 3. Vulnerable Victim Enhancement; § 3A1.1 4. Combined Offense Level (§ 3D1.4) (Increase up to 5 levels for each additional victim after the first victim for a maximum of 5 levels) 24 6 2 2

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8 Final Adjusted Base Offense Level 9

At Criminal History Category I, Defendant would face a sentence of 262-327 months Even with a three level reduction for acceptance of

10 (approximately 21 to 27 years.)

11 responsibility under § 3E1.1, which reduces the base offense level to 36, the sentencing range 12 only falls to 188-235 months (approximately 15 to 19 years). Furthermore, as weapons were 13 brandished during this crime of violence, an additional Title 18, United States Code, Section 14 924(c) charge would have added a minimum 84 months (seven years) to life sentence, to be 15 served consecutive to the hostage taking sentence, potentially subjecting Defendant to a sentence 16 of between approximately 22 and 34 years. 17 18 IV. CONCLUSION 19 For all of the foregoing reasons, the Court should deny the defendant's Motion to Vacate,

20 Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. 21 22 23 24 25 26 27 28
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Respectfully submitted this 28th day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Michael A. Lee MICHAEL A. LEE Special Assistant U.S. Attorney

1 Copy of the foregoing marked 2 "Inmate's Legal Mail" mailed this 28th day of September, 2005, to: 3 Marco Vazquez-Palacios 4 United States Penitentiary, Victorville Adelanto, California 92301 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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