Opinion
CV-21-01799-PHX-DJH (ESW) CR 16-01202-DJH-1
01-23-2023
Jose Ramon Cebreros-Sanchez, Movant/Defendant, v. United States of America, Respondent/Plaintiff.
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge
Pending before the Court is Jose Ramon Cebreros-Sanchez's “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (the “§ 2255 Motion”) (Doc. 1). For the reasons explained herein, it is recommended that the Court deny relief without an evidentiary hearing. See Dukes v. United States, 492 F.2d 1187, 1188 (9th Cir. 1974) (“The record shows on its face that the [Section 2255] petitioner was not entitled to relief, and an evidentiary hearing was not required.”).
Citations to “Doc.” are to the docket in CV-21-01799-PHX-DJH (ESW). Citations to “CR Doc.” are to the docket in the underlying criminal case, CR 16-01202-DJH-1.
I. PROCEDURAL HISTORY
On December 4, 2018, a jury convicted Movant on one count of Conspiracy to Possess with Intent to Distribute Methamphetamine in violation of 21 U.S.C. § 846 (Count 1) and one count of Conspiracy to Possess with Intent to Distribute Marijuana in violation of 21 U.S.C. § 846 (Count 2). (CR Doc. 500). The Court sentenced Movant to a total of 360 months in prison, which consists of a 360-month sentence on Count 1 and a concurrent 60-month sentence on Count 2. (Id.). Movant appealed his convictions and sentences. (CR Doc. 502). On October 26, 2020, the Ninth Circuit affirmed Movant's convictions. (CR Doc. 532).
In October 2021, Movant timely filed the § 2255 Motion (Doc. 1), along with a supporting Memorandum (Doc. 2). Movant raises six grounds for relief in which he claims he received ineffective assistance of trial and appellate counsel, in violation of the Sixth Amendment. The Government filed a Response (Doc. 10) on March 17, 2022. Movant filed a Reply (Doc. 17) on August 3, 2022. On September 30, 2022, pursuant to the Court's Order (Doc. 18), the Government electronically filed the exhibits referenced in its Response. (Docs. 19-27).
II. LEGAL STANDARDS
“Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). Under the first prong, a defendant must show that a counsel's representation falls “below an objective standard of reasonableness” as measured by “prevailing professional norms.” Strickland, 466 U.S. at 687-88. There is a “strong presumption that counsel's performance falls within the wide range of professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). “A reasonable tactical choice based on adequate inquiry is immune from attack under Strickland.” Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997).
With respect to the second prong, “Strickland asks whether it is ‘reasonably likely' the result would have been different.” Harrington v. Richter, 131 S.Ct. 770, 792 (2011) (quoting Strickland, 466 U.S. at 696). “This does not require a showing that counsel's actions ‘more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.'” Id. (quoting Strickland, 466 U.S. at 693, 697). “The likelihood of a different result must be substantial, not just conceivable.” Id. (citing Strickland, 466 U.S. at 693).
III. DISCUSSION
A. Factual Background Relevant to Movant's Ineffective Assistance of Counsel Claims
Movant's convictions arise from an investigation that began in 2015 and was conducted by the Drug Enforcement Administration (“DEA”), Bureau of Alcohol Tobacco, Firearms, and Explosives (“ATF”), and the Phoenix Police Department. (CR Doc. 494 at 5, ¶ 8). Through the investigation, agents identified Movant as a drug supplier for an individual called Taiwan Huckaby (“Huckaby”) who had a connection to the Sinaloa Cartel in Mexico. (Id.). Agents utilized wiretaps during the investigation.
The ATF obtained the Court's authorization for the first wiretap on July 7, 2016, which pertained to two telephones. (Doc. 518 at 19-20). The DEA obtained the Court's authorization for the second wiretap on August 15, 2016 pertaining to a third telephone. (Id. at 20). Movant was identified as the user of two of the target telephones. (CR Doc. 22-23, 30). Investigators arranged six controlled purchases of methamphetamine and cocaine from Huckaby between January 2016 and August 2016. (CR Doc. 494 at 5, ¶ 10). Through the wiretaps, agents documented that Movant coordinated the distribution of methamphetamine and marijuana in the Phoenix area. (Id.).
The Government notes in its Response that on August 25, 2016, Huckaby was shot and killed at a residence in Phoenix, Arizona. (Doc. 10 at 7).
On September 28, 2016, an eight-count Indictment was filed against Movant and six co-defendants. (CR Doc. 3). Movant was named in Counts 1 and 2 of the Indictment charging Movant with conspiracy to possess with intent to distribute methamphetamine and marijuana.
On October 2, 2016, Movant appeared before the Court for initial appearance and arraignment hearings. (CR Doc. 15). Assistant Federal Public Defender (“AFPD”) Milagros Anais Cisneros was appointed to represent Movant. (Id.). On October 6, 2016, the Court granted AFPD Cisneros' Motion requesting to withdraw as counsel of record and appointed Criminal Justice Act panel attorney Robert J. McWhirter as counsel of record. (CR Doc. 18). On October 28, 2016, upon stipulation, the Court substituted attorney Antonio R. Zuniga as Movant's counsel of record. (CR Doc. 64). Attorney Jose L. Mendoza (referred herein as “Attorney Mendoza”) was substituted as Movant's counsel of record on March 23, 2017. (CR Doc. 117). On October 25, 2016, a First Superseding Indictment was filed that added another co-defendant and a ninth count naming that codefendant. (CR Doc. 38).
On August 1, 2017, the Government filed a Second Superseding Indictment. (CR Doc. 168). Count 1 charged that between July 20, 2016 and August 3, 2016, Movant conspired with other persons to possess with intent to distribute 500 grams or more of methamphetamine. (Id. at 2). Count 2 charged that between July 9, 2016 and August 3, 2016, Movant conspired with co-defendants to possess with intent to distribute 100 kilograms or more of marijuana. (Id.).
On January 25, 2018, Attorney Mendoza moved to withdraw as counsel, explaining that Movant “no longer wishes for Counsel to represent him in this matter and is terminating his contractual agreement.” (CR Doc. 348 at 1). The Motion also states that “Counsel's relationship with Defendant has deteriorated to the point whereby Counsel cannot have a relevant discussion with Defendant. Defendant has also refused to accept Counsel's legal visits, making it impossible for undersigned Counsel to continue representing the Defendant.” (Id.). The Court held a hearing on the Motion. (CR Doc. 357). At the hearing, the Court advised Movant that the motions deadline had passed. (Id.). Noting that Movant had retained new counsel, Michael V. Black (referred herein as “Attorney Black”), the Court withdrew Attorney Mendoza as Movant's counsel of record. On February 1, 2018, the Court held a status conference with the parties. (CR Doc. 374). The Court again noted that the motions deadline had expired and stated to Attorney Black that if he wishes to file a motion, it must be with good cause shown. (CR Doc. 516 at 45). The Court reset the trial to May 8, 2018. (CR Doc. 380).
Attorney Black filed a Motion in Limine on April 13, 2018 that sought to preclude the Government from introducing expert testimony from two law enforcement witnesses concerning drug transactions. (CR Doc. 410). After holding oral argument, the Court denied the Motion, but the Court permitted defense counsel to raise objections at the time of trial. (CR Doc. 423).
After trial, the jury found that Movant conspired to possess with intent to distribute methamphetamine in a mixture or substance weighing 500 grams or more. (CR Doc. 466 at 1-2). As to Count 2, the jury found that Movant conspired to possess with intent to distribute marijuana in a mixture or substance weighing less than 50 kilograms. (Id. at 3).
B. Ground One
In Ground One, Movant alleges that his trial attorneys provided constitutionally deficient assistance by failing to challenge the admission of the wiretap evidence, stating that “the majority of the evidence that was to be presented at trial stemmed from the first wire interception period, which lasted from July 8, 2016-August 6, 2016, and the second period from August 16, 2016-September 14, 2016.” (Doc. 1 at 4; see also Doc. 2 at 1-2). Movant asserts that the “challenging or/and objecting to the validation and/or due process of intercepted communications would of resulted in a lesser sentence or a not-guilty verdict.” (Doc. 1 at 4).
An attorney's “[f]ailure to raise a meritless argument does not constitute ineffective assistance.” Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985); see also James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (“Counsel's failure to make a futile motion does not constitute ineffective assistance of counsel.”); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take futile action can never be deficient performance); Bailey v. Newland, 263 F.3d 1022, 1029 (9th Cir. 2001) (“[I]n order to show prejudice when a suppression issue provides the basis for an ineffectiveness claim, the petitioner must show that he would have prevailed on the suppression motion, and that there is a reasonable probability that the successful motion would have affected the outcome.”).
The Government has submitted a Declaration signed by Attorney Mendoza. (Doc. 19-1 at 1-3). The Declaration states that after receiving discovery from Movant's previous counsel, Attorney Mendoza “evaluated the Government's case, especially the wiretap applications and the resulting intercepted calls. I reviewed the disclosures to evaluated [sic] whether there were grounds to suppress the wiretap evidence and determined there was no good-faith basis to move forward to suppress the evidence.” (Id. at 1, ¶ 3).
Attorney Black was appointed to represent Movant at trial after the motions deadline had expired. In its Response, the Government accurately recounts that Attorney Black objected numerous times at trial to the admission of particular wiretap evidence. (Doc. 10 at 14). For instance, Attorney Black (i) objected to an agent testifying to the accuracy of a chart listing selected wiretap calls and text messages from wiretaps (CR Doc. 518 at 24, 27); (ii) objected to the admission of wiretap call records from Sprint (CR Doc. 518 at 34; CR Doc. 519 at 46); and (iii) objected to the admission of wiretapped calls and other evidence that occurred outside the scope of the dates of the charged conspiracy (CR Doc. 519 at 95, 102; CR Doc. 520 at 10, 15, 153-54, 156; CR Doc. 521 at 18, 23).
Even though the Court overruled Attorney Black's objections, Attorney Black's closing argument asserted that the jury should disregard the evidence that occurred outside the dates in the Second Superseding Indictment. Attorney Black told the jury:
Now, the next thing I want to talk about are the dates in the indictment. And I'm asking you here and now to disregard any events that occurred in this case with regard to the methamphetamine conspiracy that occurred before July 20th and after August 3rd, because the government took this case back to the grand jury 11 months later, and they could have included - they could have expanded the dates. They chose not to.
And what I'm asking you to completely disregard is anything to do with this marijuana that was found supposedly at [co-defendant's] Markie Manning's house on August 23rd.
That is so far out of the dates of the indictment that it's not fair for you to consider that.(CR Doc. 582 at 22-23).
Movant does not articulate any grounds for finding that his trial attorneys erred or prejudiced his case by not to moving to suppress the wiretap evidence. Movant has failed to satisfy either prong of the Strickland test. The undersigned recommends that the Court deny Ground One.
C. Ground Two
Ground Two of the § 2255 Motion states that Movant's “tr[ial] and appeal counsel committed several errors and omissions which amounted to performance at a level below the acceptable objective standard of reasonableness for defense counsel in a criminal case.” (Doc. 1 at 5). Movant asserts that “the evidence used at trial and sentencing was out of the scope of the conspiracy; there existed multiple conspiracies, challenges that would have produced a different result.” (Id.; see also Doc. 2 at 2). Movant's claims relating to “out-of-scope” evidence and the existence of multiple conspiracies are without merit.
1. “Out-of-Scope” Evidence
Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” However, such “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2).
The Ninth Circuit has held that “[e]vidence should not be treated as ‘other crimes' evidence when the evidence concerning the [other] act and the evidence concerning the crime charged are inextricably intertwined.” United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) (internal quotation marks and citation omitted). “In such cases, the policies supporting the exclusion of evidence under Rule 404(b) are inapplicable, since the evidence is not being presented to ‘prove the character of a person in order to show action in conformity therewith.'” United States v. Ramirez-Jimenez, 967 F.2d 1321, 1327 (9th Cir. 1992) (quoting Fed.R.Evid. 404(b)). “Instead the evidence is ‘direct evidence,' used to flesh out the circumstances surrounding the crime with which the defendant has been charged, thereby allowing the jury to make sense of the testimony in its proper context.” Id.; see also United States v. Williams, 989 F.2d 1061, 1070 (9th Cir. 1993) (acts committed as part of an ongoing criminal episode do not become “other acts” simply because the defendant is indicted for less than the entirety of his actions). Other act evidence is “inextricably intertwined with the charged crime if (1) “it constitutes a part of the transaction that serves as a basis for the criminal charge”; or (2) “it was necessary to . . . permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.” United States v. Serang, 156 F.3d 910, 915 (9th Cir. 1998).
Here, the Government filed a Memorandum notifying the Court of its intent to “present testimony and evidence, primarily through wire calls, that Taiwan Huckaby and [Movant] conspired to sell marijuana to [co-defendant] Markie Manning around July 15, 2016 and July 26, 2016.” (Doc. 451 at 5). The Government stated that “[i]n the relevant wire calls, the parties did not specify what type of drug was being purchased. However, the drug was later identified when agents executed a search warrant at Markie Manning's residence on August 23, 2016 and found approximately 11 pounds of marijuana.” (Id.). The Government asserted that “[e]vidence from the search warrant is inextricably intertwined with the wire calls because the search warrant revealed the type of drug being discussed for sale during the time period of the conspiracy. The search warrant places the calls in the proper context, and therefore, is admissible evidence at trial.” (Id. at 5-6).
As discussed, the Second Superseding Indictment charged that (i) between July 20, 2016 and August 3, 2016, Movant conspired with other persons to possess with intent to distribute 500 grams or more of methamphetamine and (ii) between July 9, 2016 and August 3, 2016, Movant conspired with co-defendants to possess with intent to distribute 100 kilograms or more of marijuana. Attorney Black objected at trial to the admission of evidence that occurred outside the dates of the conspiracy as listed in the indictment. The Court overruled Attorney Black's objections, finding that the evidence presented that occurred outside the dates of the indictment is “inextricably intertwined with the conspiracy.” (CR Doc. 519 at 165). The undersigned concurs with the Government that the claim in Ground Two alleging that Movant's trial counsel was ineffective with respect to “out-of-scope” evidence is without merit.
Regarding the alleged ineffectiveness of Movant's appellate counsel with respect to “out-of-scope” evidence, “[multiplicity hints at lack of confidence in any one [claim].” Jones v. Barnes, 463 U.S. 745, 752 (1983); Pollardv. White, 119 F.3d 1430, 1435 (9th Cir. 1997) (“A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court.”). “A lawyer who throws in every arguable point-‘just in case'-is likely to serve her client less effectively than one who concentrates solely on the strong arguments.” Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). “Appellate counsel will therefore frequently remain above an objective standard of competence (prong one) and have caused her client no prejudice (prong two) for the same reason-because she declined to raise a weak issue.” Id.
Movant has not shown that his appellate counsel's performance was constitutionally deficient by failing to assert on appeal that “out-of-scope” evidence was improperly admitted at trial.
2. Multiple conspiracies
“A multiple conspiracies instruction is required only if the defendants' theory of the charged conspiracy or conspiracies is supported by law and has some foundation in the evidence.” United States v. Job, 871 F.3d 852, 867 (9th Cir. 2017) (internal quotation marks and citation omitted). “Evidence sufficient to support a multiple conspiracies instruction is present where a jury could reasonably conclude that some of the defendants were only involved in separate conspiracies unrelated to the overall conspiracy charged in the indictment.” Id.; see also United States v. Ocequeda-Ruiz, 663 Fed.Appx. 560, 561 (9th Cir. 2016) (adding that the multiple conspiracy instruction is necessary if there is a “risk that the defendant may be convicted on the basis of acts committed by those in a conspiracy of which he was not a part”).
Here, the Second Superseding Indictment charged more than one conspiracy. The Government introduced evidence at trial supporting that Movant was involved in a conspiracy to distribute methamphetamine and a conspiracy to distribute marijuana. In its closing argument, the Government told the jury: “obviously there are two separate counts here, one for the marijuana conspiracy and one for the methamphetamine conspiracy. And you'll have to make findings as to each count.” (CR Doc. 582 at 7). The Government correctly asserts that a multiple conspiracy jury instruction did not apply given the evidence.
Movant has presented no factual basis to suggest that there was insufficient evidence of a single conspiracy or sufficient evidence of multiple conspiracies. Nor has Movant presented evidence showing that he was prejudiced by his counsel's failure to request a multiple conspiracies jury instruction. The undersigned does not find that Movant's trial and appellate counsel provided constitutionally ineffective assistance by failing to argue that the Court was required to provide a multiple conspiracies jury instruction. See United States v. Shabani, 48 F.3d 401, 403 (9th Cir. 1995) (“Shabani contends that his attorney's failure to request an instruction on multiple conspiracies denied him effective assistance of counsel. We need not consider this issue because no such instruction was required.”).
It is recommended that the Court deny Ground Two.
D. Ground Three
In Ground Three, Movant asserts that his final trial counsel, Attorney Black, provided constitutionally deficient assistance by misadvising Movant on the likely sentence Movant would receive. (Doc. 1 at 9). Movant states that his attorney advised him that he “was looking at a Level 28 offense level and a criminal history Category II,” which carried a 87-108 month sentence. (Id.). Movant contends that if he was not “given this misadvice [sic] of a likely sentence,” Movant “would not have risked a trial and accepted a 120 month plea, rather than face a 360-life sentence.” (Id.; see also Doc. 2 at 2-3).
“If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Laflerv. Cooper, 566 U.S. 156, 168 (2012); Missouri v. Frye, 566 U.S. 134, 141 (2012) (explaining that the negotiation of a plea bargain is “a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel”). If counsel has misadvised a defendant about the law during a plea negotiation, or improperly coerced a defendant to accept a plea bargain, counsel's performance may be found deficient. See Lafler, 566 U.S. at 162 (counsel's erroneous legal advice about possibility of conviction that led to rejection of plea offer constituted deficient performance). To show that prejudice resulted from the ineffective assistance of counsel “where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability” that (i) he “would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel” and (ii) “the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion[.]” Frye, 566 U.S. at 147.
The Government offered Movant a plea agreement while Attorney Mendoza was representing Movant. In his Declaration Attorney Mendoza states that he had several meetings with [Movant] to discuss the case and the Government's plea agreement that had been extended to him.
We discussed at length [Movant's] exposure if he were to reject the plea agreement and be found guilty at trial. I explained in detail how he would be held responsible for the total amount of the drugs connected with the conspiracy. I did not tell [Movant] that his final sentence would be based only on the statutory thresholds in the indictment. On the contrary, I provided my best estimate as to his final guideline range based on the overall amount of methamphetamine and marijuana that would be attributed to him. I made it clear that [Movant] was facing the possibility of a significantly higher sentence than the 10-year plea offer extended by the Government. My advice to [Movant] was to accept the plea offer.(Doc. 19-1 at 1, ¶ 4). Movant signed the plea agreement on September 15, 2017. (CR Doc. 512 at 2). The Court scheduled a change of plea hearing for September 28, 2017. Prior to the hearing, trial counsel filed a motion indicating that Movant decided not to enter into the plea agreement. (CR Doc. 198). The Court set the matter for a Frye hearing. (CR Doc. 204).
On October 4, 2017, a Magistrate Judge conducted the Frye hearing. (CR Doc. 212). The Government stated on the record:
If the defendant was convicted at trial on Count 1 [conspiracy to possess with intent to distribute methamphetamine], the total term of imprisonment would be ten years and up to life. . . .
If he was convicted at trial on Count 2 [conspiracy to possess with intent to distribute marijuana], the total term of imprisonment would be at least five years and up to 40 years. . . .(CR Doc. 514 at 3). The Government also stated on the record that under the offered plea agreement, Movant would plead guilty to Conspiracy to Possess Methamphetamine with Intent to Distribute. (Id.). Contrary to Movant's contention, the offered plea agreement did not contain a stipulated term of ten years imprisonment. The plea agreement provided that Movant would receive a downward departure for acceptance of responsibility and that Movant's sentence would not exceed the low end of the sentencing guideline range. (Id.). The Government stated that Count 1 would “obviously carry the mandatory minimum term of imprisonment of ten years.” (Id.).
Attorney Mendoza stated at the Frye hearing that
I did receive a written plea offer from the Government. I have reviewed it on several occasions with Mr. Cebreros-Sanchez.
So we were set for a change of plea, but Mr. Cebreros-Sanchez changed his mind.
He is aware of the reason for today's hearing, and he has conveyed to me that he does not wish to accept the Government's offer.(Id. at 4-5). The Court informed Movant that the Government indicated that the plea offer will expire on October 18, 2017, and Movant confirmed that he understood. (Id. at 5).
Attorney Black began representing Movant after the Government's plea offer expired in October 2017. At the May 2, 2018 Final Pretrial Conference, the Government indicated that “Mr. Black and I have had some discussions and just we're not able to reach an agreement based on the plea that was offered.” (CR Doc. 517 at 2). When asked if there was any possibility of settlement, Attorney Black said, “I don't think so, Your Honor.” (Id.). In his Declaration, Attorney Black states:
By the time I was retained in the case, [Movant] had already rejected the Government's plea agreement. I did discuss pretrial settlement with the Government, but the Government indicated it would not extend a plea agreement lower than the (b)(1)(a) plea that carried a mandatory minimum term of ten years. [Movant] maintained his position that he would not accept a plea agreement that would result in at least ten years imprisonment. I never advised [Movant] to reject the mandatory minimum plea offer. In fact, I advised him that he could face a potentially significantly higher sentence if he was convicted at trial.(Doc. 19-1 at 5, ¶ 4). Attorney Black also states that he explained to Movant that
his final guideline range would be calculated by the total amount of methamphetamine and marijuana the Court attributes to his actions and his participation in the charged conspiracies. I did not advise [Movant] at any point that his sentence would be limited to the statutory threshold of 500 grams of methamphetamine and 100 kilograms of marijuana listed in counts 1 and 2 of the indictment.(Id., ¶ 5).
The record does not support Movant's contention that any of Movant's trial attorneys advised Movant not to accept an offered plea agreement or provided constitutionally deficient advice with respect to Movant's likely sentence if convicted at trial. Moreover, the Government correctly explains that the Court could have sentenced Movant after trial under a similar guideline range provided in the plea agreement if the Court granted Movant a reduction for acceptance of responsibility. (Doc. 10 at 21-22) (citing United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990) (stating that U.S.S.G. § 3E1.1 provides for a reduction in sentence if the defendant clearly demonstrates acceptance of personal responsibility and that the § 3E1.1 applies to defendants who plead guilty as well as those who are tried)). If the Court granted Movant a reduction for acceptance of responsibility, Movant's applicable guideline range would have been 292365 months. U.S.S.G. 3E1.1(a) (“If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.”). That range is the same as the high end of the guideline range under the terms of the plea agreement. See Lafler, 566 U.S. at 162 (prejudice prong is met only if defendant shows he received a harsher sentence than the plea would have allowed). It is recommended that the Court deny Ground Three.
The Government notes in its Response that under the terms of the plea agreement, Movant could have been sentenced anywhere from 120 months to the low of his guideline range of 292 months. (Doc. 10 at 21-22). The Government recounts that with a base offense level of 42 and an adjusted offense level of 39 (reduction of three levels for acceptance of responsibility) and a criminal history category of II, the sentencing range under the 2016 Sentencing Guidelines is 292-365 months. (Id. at 22 n. 8).
E. Ground Four
In Ground Four, Movant contends that “Michael V. Black the trial and sentencing attorney failure to object and use proper case law during sentencing denied Petitioner effective counsel.” (Doc. 1 at 10). Movant elaborates as follows:
To allow drug amounts and quality to be decided and added on at sentence denied Petitioner due process. The Indictment allows the Petitioner to know what drug amount and type he faces. Those drug amount [sic] are given to a jury to be proven. The Indictment gave a start and finish of a conspiracy. A judge may look pre-conspiracy for relevant conduct not postconspiracy. But now after the new law drug quantify and qualities must be given to a jury and proven. To allow add ons after jury has voted violates due process. This sentencing ineffectiveness fell below an objective standard of unreasonableness and there is a reasonable probability that except for the attorneys unprofessional misadvise and non objecting, the results would have been different.(Doc. 1 at 10). In his Memorandum, Movant argues that “A defendant is subject to an enhanced penalty range only if a jury finds the appropriate drug type and quantity beyond reasonable doubt or the defendant admits responsibility for that type and quantity.” (Doc. 2 at 4-5). Movant also contends that because he “was charged in his indictment for mixture,” but “was sentenced under pure” and “enhanced for a supervisor role, it results where ‘double counting' to face pure and a supervisor role. This argument was not raise[d] by Attorney Black. This failure denied Petitioner his 6th Amendment right to effective assistance of counsel.” (Id. at 7).
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther 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.” In Alleyne v. United States, 570 U.S. 99 (2013), the Supreme Court held that facts triggering a mandatory minimum sentence must be found by a jury. Otherwise, “district courts are free to make factual determinations not made by the jury and may base their ultimate decisions regarding the length of a convicted criminal's sentence on those determinations.” United States v. Staten, 466 F.3d 708, 719 (9th Cir. 2006); see also United States v. Booker, 543 U.S. 220, 233 (2005) (“[W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.”); United States v. Buckland, 289 F.3d 558, 570 (9th Cir. 2002) (en banc) (“Apprendi does not alter the authority of the judge to sentence within the statutory range provided by Congress.”) (emphasis in original).
Here, as recounted in the Presentence Investigation Report, Movant's conviction on Count 1 subjected Movant to a minimum term of imprisonment of ten years and a maximum term of life as it involved possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. (CR Doc. 494 at 17) (citing 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A)(viii)). Movant's conviction on Count 2 subjected Movant to a maximum term of imprisonment of five years. (Id. at 17-18) (citing 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(D)). Although Alleyne requires that facts triggering a mandatory minimum sentence must be found by a jury, the jury in this case found beyond a reasonable doubt that Count 1 involved more than 500 grams of methamphetamine. (CR Doc. 466 at 2). Further, the Court did not impose sentences on Counts 1 and 2 that exceeded the statutory maximum. See United States v. Sua, 307 F.3d 1150, 1154 (9th Cir. 2002) (concluding that “[s]ince [the] sentence was not beyond the prescribed statutory maximum, it did not violate Apprendi”). The Court's sentence therefore comported with the Sixth Amendment and is not contrary to the Supreme Court's decisions in Apprendi or Alleyne. Movant's trial and appellate attorneys were not ineffective for failing to challenge Movant's sentence on appeal based on Apprendi or Alleyne.
The Court adopted the Presentence Investigation Report with the following changes to determinations under Chapters Two and Three of the United States Sentencing Commission Manual: “USSG 2D1.2 does not apply; 8 lbs of meth should be included, for a base of 26” and “+3 for manager and not +4 for leader.” (CR Doc. 501 at 1).
Finally, to the extent that Ground Four asserts that Movant's trial counsel was ineffective with respect to the sentencing enhancement for Movant's role as a manager or supervisor, the claim is without merit. Attorney Black argued at the sentencing hearing that the Government failed to show that Movant was a supervisor. (CR Doc. 523 at 34). The Court overruled trial counsel's objection. (Id. at 36). Movant challenged the Court's ruling on appeal. In affirming Movant's convictions and sentences, the Ninth Circuit held that:
The district court did not err by applying the three-level enhancement for Cebreros-Sanchez's aggravated role as a manager or supervisor. U.S.S.G. § 3B1.1(b). The record evidence shows that, at a minimum, Cebreros-Sanchez exercised control over his brother by instructing him to act as a courier to deliver methamphetamine to Cebreros-Sanchez's co-conspirators and other buyers, and determined the amount of money his brother would receive for doing so. See United States v. Gagarin, 950 F.3d 596, 606 (9th Cir. 2020); United States v. Rivera, 527 F.3d 891, 908-09 (9th Cir. 2008).(CR Doc. 532-1 at 2-3). It is recommended that the Court deny Ground Four.
F. Ground Five
Ground Five argues that Attorney Black had a “conflict of interest that effected his sound judgement in his representation of this Petitioner.” (Doc. 1 at 11). Movant contends that Attorney Black was attracted to Movant's fiance, which hindered his “total attention” in representing Movant. (Id.). Movant argues that if he did not have “an attorney that had a conflict of interest by pursuing his fiance he would likely not received [sic] a sentence of 360-life.” (Id.; see also Doc. 2 at 7-8).
For ineffective assistance of counsel claims based on a conflict of interest, “a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.” Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980). “But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Id.
“[T]he word ‘conflict' is [ ] used in common parlance to describe a personality conflict, an artistic conflict, a family conflict, and many other sorts of antagonism-even war.” Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en banc). However, in the context of an ineffective assistance of counsel claim, the word “conflict” refers to “legal conflicts of interest-an incompatibility between the interests of two of a lawyer's clients, or between the lawyer's own private interest and those of the client.” Id. “An actual conflict, as opposed to the ‘mere possibility of a conflict,' is necessary to establish ineffective assistance.” Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994) (citation omitted).
The undersigned finds that Movant's allegations in Ground Five are speculative and conclusory. See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001) (explaining that a “theoretical” or “potential” conflict is insufficient to constitute actual conflict); Morris v. State of Cal., 966 F.2d 448, 455 (9th Cir. 1991) (“The mere possibility of a conflict of interest is insufficient to support a holding of ineffective assistance.”). In his Declaration, Attorney Black states:
[Movant's] claim that I was somehow romantically interested in a woman he now claims was his then fiancee and that it somehow affected my representation of him is completely apocryphal. I recall only having met her in person on two occasions prior to trial, and I had difficulty communicating with her because of her lack of proficiency in English. My supposition is that his lengthy period of pretrial incarceration coupled with his lengthy sentence caused a bit of jealous consternation with her.(Doc. 19-1 at 6, ¶ 9). The Government is correct that Movant's speculation regarding Attorney Black and Movant's fiance does not establish a conflict of interest, nor does it demonstrate that Attorney Black's performance at trial fell below the standard of reasonableness or that Movant was prejudiced by the alleged conflict. It is recommended that the Court deny Ground Five.
G. Ground Six
Movant's final ground for relief asserts that his appellate attorney was ineffective for failure to challenge the “indictment and sentence under Apprendi,” which caused Movant “to be denied due process and know the penalty he faced if convicted at trial.” (Doc. 1 at 12). Movant argues that the “District Court erred in using general verdict form that did not require jury to specify drug type and quantity.” (Doc. 2 at 8). Movant also asserts that appellate counsel was ineffective for failing to “challenge the importation enhancement, when no evidence link in trial came from Mexico. This was clear vindictive and or selective prosection [sic] due to this Petitioner being Mexican, and still has family in Mexico.” (Doc. 1 at 12; see also Doc. 2 at 8-9).
Movant's appellate counsel raised two issues on appeal: (i) whether the Court erred when it increased Movant's base offense level based on additional pounds of methamphetamine that it determined as relevant conduct under U.S.S.G. § 1B1.3(a) and (ii) whether the Court erred when it determined that Movant was a manager or supervisor thereby increasing his offense level by three levels under U.S.S.G. § 3B1.1(b). (CR Doc. 532-1 at 2). The Ninth Circuit rejected both claims. (Id.). “[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). An appellate advocate provides effective assistance by “winnowing out” a weaker claim and focusing on a stronger claim. See Jones, 463 U.S. at 751-52 (an experienced attorney knows the importance of “winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues”); Smith v. Murray, 477 U.S. 527, 536 (1986) (“The[e] process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.”). Movant has not shown that his appellate counsel failed to raise claims that are stronger than the claims presented on appeal.
The Government is correct hat Movant cannot relitigate in this proceeding an issue he unsuccessfully raised on appeal. United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985) (“Redd raised this precise claim in his direct appeal, and this court expressly rejected it. Therefore, this claim cannot be the basis of a § 2255 motion.”); Egger v. United States, 509 F.2d 745, 748 (1975) (“Issues raised at trial and considered on direct appeal are not subject to collateral attack under 28 U.S.C. § 2255”).
First, as recounted in the section discussing Ground Four, the Court's sentences on Counts 1 and 2 are not contrary to the Supreme Court's decisions in Apprendi or Alleyne. Movant's appellate counsel was not ineffective for failing to challenge Movant's sentence on appeal based on Apprendi or Alleyne.
Movant's appellate counsel also was not ineffective for failing to challenge on appeal the Court's imposition of an importation sentencing enhancement. A two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(5) applies if “the offense involved the importation of . . . methamphetamine.” The Ninth Circuit has held that “a defendant need not be personally involved in the importation of the [methamphetamine] to receive an enhancement under § 2D1.1(b)(5); it is enough for the government to show that the drugs were imported.” United States v. Biao Huang, 687 F.3d 1197, 1206 (9th Cir. 2012). For this enhancement to apply, the Court must find by a preponderance of the evidence that the defendant knew that the methamphetamine had been imported by someone. United States v. Job, 871 F.3d 852, 868 (9th Cir. 2017) (“The government bears the burden of proving facts that support a sentencing adjustment by a preponderance of the evidence.”).
In his Objection to the Presentence Investigation Report, Attorney Black argued that “The presentence report writer incorrectly added two levels because he claimed - without attribution - Cerebros knew the methamphetamine was imported from Mexico. There is nothing in the discovery provided and reviewed by the undersigned or the evidence adduced at trial that supports that assertion and corresponding two level increase.” (CR Doc. 492 at 8). At sentencing the court found by a preponderance of the evidence that drugs were imported from Mexico. (CR Doc. 523 at 32). The Court stated:
I do think there's some merit to Mr. Black's argument that a
Mexican cell phone number isn't sufficient. There have been certain circumstances where individuals have used those cell phone numbers acquired in Mexico for communication here in the United States. But at the same time, looking at the totality of the circumstance, the evidence at trial, the numerous cell phone calls, some of the wire communications that were intercepted, the search warrant itself, there's ample evidence before the Court to find that, especially with respect to the individual Gallo and Leon, that there is a sufficient connection to Mexico being the place that methamphetamine was being imported from.
In particular, what the government points out with respect to Mr. Leon having been removed from the United States and being in Mexico at the time of the communications I think is sufficient. And the fact that he is now dealing in pounds of methamphetamine that are now being provided to Mr. Cebreros-Sanchez overcomes the preponderance of the evidence to find that Mr. Cebreros-Sanchez knew where the source of supply was coming from.
And so I'm going to overrule the objection, Mr. Black.(Id. at 31-32). Movant has not shown that the Court erred in finding by a preponderance of the evidence that the methamphetamine was imported from Mexico. It was not ineffective assistance of counsel for appellate counsel to not challenge this issue on appeal.
The undersigned concludes that Movant's appellate counsel provided competent legal representation. Movant does not provide any factual support for his allegation that the outcome of his appeal would have been different had his appellate counsel raised other claims. Movant therefore also fails to establish the prejudice prong of the two-part Strickland test. It is recommended that the Court deny Ground Six.
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the § 2255 Motion (Doc. 1) be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis be DENIED because Movant has not made a substantial showing of the denial of a constitutional right.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).