Opinion
Criminal No. PJM 05-344, Civil No. PJM 07-2981.
August 1, 2008
MEMORANDUM OPINION
Rene Odir Rodriguez pled guilty to unlawfully reentering the United States after having been convicted of an aggravated violation in violation of 8 U.S.C. § 1326(a), (b)(2) and was sentenced to 77 months of incarceration, followed by three years of supervised release. He has filed a pro se Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel because of trial counsel's alleged failure to refute the 16-level increase to his sentencing guideline range and because of appellate counsel's alleged failure to contest the validity of his waiver of the right to appeal.
Having considered Rodriguez's Motion and the Government's response, the Court DENIES the Motion.
I.
At his plea hearing, Rodriguez agreed that the Government would have proven that he had been previously been convicted of an aggravated felony and subsequently deported for convictions of robbery and drug distribution. He also stipulated in the Plea Agreement that the appropriate United States Sentencing Guidelines calculation should result in an offense level of 21: a base offense level of eight, plus a 16-level increase due to a prior robbery conviction, minus a three-level reduction for acceptance of personal responsibility and timely notification of intent to plead guilty. Rodriguez also explicitly waived his right to appeal any sentence within or below the advisory Guideline range resulting from an offense level of 21 and acknowledged that no promise had been made to him with respect to the sentence the Court might impose.
Following a Rule 11 colloquy with Rodriguez, during which the Court confirmed his understanding of and agreement with all the terms of the Plea Agreement, the Court formally accepted his guilty plea. At sentencing, the Court found that Rodriguez's offense level was 21 and that his criminal history was a Category VI, resulting in a custody range of 77-96 months, a supervised release range of two to three years and a fine between $7,500-$75,000. As indicated, the Court sentenced Rodriguez to 77 months of imprisonment, three years of supervised release and no fine.
Thereafter, Rodriguez filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 and a Motion for Leave to File Affidavits in Support of motion to Vacate. On May 23, 2007, the Court denied without prejudice his Motion to Vacate and granted in part his Motion for Leave to File Affidavits. Rodriguez then filed a Notice of Appeal with the Fourth Circuit. The Fourth Circuit, however, dismissed the appeal, agreeing with the Government that Rodriguez had validly waived his right to appeal under the terms of the Plea Agreement. Rodriguez then filed the present § 2255 Motion.
This Order effectively vacated the prior Judgment and Conviction entered on November 22, 2005, and reentered it effective May 23, 2007. The Order allowed Rodriguez to file a timely appeal and appointed Mary Elizabeth Davis to represent Rodriguez on his direct appeal.
II.
Rodriguez contends that trial counsel was ineffective in failing to investigate his prior convictions or to object to the 16-level enhancement under the Sentencing Guidelines. He submits that trial counsel should have argued that his deportation as an aggravated felon was based upon his drug distribution offense, not upon his robbery offense. He reasons that under the Guidelines, while a defendant deported after a felony crime of violence receives a 16-level increase, a defendant deported after a felony drug trafficking offense for which the sentence imposed was 13 months or less receives only a 12-level increase. See U.S.S.G. § 2L1.2(b). Rodriguez asserts that the rule of lenity should have been invoked because he was convicted of different offenses, one with a sentence less severe than the other and that the Court should resolve discrepancies in the Guidelines in his favor.
Rodriguez further contends that appellate counsel was ineffective in failing to argue the validity of the waiver of appeal provision or that the sentence imposed incorrectly applied the Sentencing Guidelines. He also maintains that his counsel failed to include many material facts in the appellate briefs submitted to the Fourth Circuit.
In its response, the Government maintains that the District Court properly applied the Sentencing Guidelines and that the Fourth Circuit correctly upheld Rodriguez's waiver of his right to appeal.
III.
Claims of ineffective assistance of counsel are governed by the two-part test outlined in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires that an individual claiming ineffective assistance demonstrate (1) "that counsel's performance was deficient," and; (2) "that the deficient performance prejudiced the defense." Id. at 687. Representation is deficient if it "falls below an objective standard of reasonableness." Id. at 690. A showing of prejudice requires "that counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable," and that there was a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 690-94. Put differently, "[t]he benchmark of an ineffective assistance claim must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id. at 686. For counsel's performance to be deficient, it must be shown that his performance was not "within the range of competence normally demanded of attorneys in criminal cases." Id. at 687. The standard of review for assessing such competence "must be highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of ineffective assistance of counsel claims." Id. at 669.
IV. A.
With respect to Rodriguez's claim that this Court improperly applied the Sentencing Guidelines, he misunderstands how the Guidelines apply. U.S.S.G. § 2L1.2 provides, in pertinent part, "(1) Apply the Greatest: If the defendant previously was deported, or unlawfully remained in the United States after — (A) a conviction for a felony that is . . . (ii) a crime of violence; . . . increase by 16 levels; (B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels; . . ." United States Sentencing Commission, Guidelines Manual, § 2L1.2(b) (Nov. 2007) (emphasis added). Notably, "[a] defendant shall be considered to be deported after a conviction if the deportation was subsequent to the conviction, regardless of whether the deportation was in response to the conviction." U.S.S.G. § 2L1.2, cmt. n. 1(a).
Accordingly, this Court correctly applied the Guidelines when it applied the 16-level adjustment based upon Rodriguez's reentry after conviction for a "crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). Robbery, one of Rodriguez's prior convictions, is explicitly delineated as a "crime of violence" in the Notes to the Guidelines, U.S.S.G. § 2L1.2, cmt. n. 1(b)(iii), as well as under Maryland state law, see Pye v. States, 919 A.2d 632 (Md. 2007). Although Rodriguez had been convicted of possession with intent to distribute drugs, that was a lesser, not a greater, predicate offense than robbery. U.S.S.G. § 2L1.2(b)(1).
Rodriguez's reliance on the rule of lenity is misplaced. The Supreme Court has repeatedly "emphasized that the `touchstone' of the rule of lenity `is statutory ambiguity'." Bifulco v. United States, 447 U.S. 381, 387 (1980). Since the Sentencing Guidelines clearly delineate the procedure by which offense levels are calculated, no confusion exists for the rule of lenity to operate. Moskal v. United States, 498 U.S. 103, 108 (1990) (citing Bifulco, at 387).
Rodriguez's claim of ineffective assistance of counsel with respect to the Sentencing Guidelines calculations is meritless.
B.
Rodriguez's second claim of ineffective assistance fails as a matter of fact. While he argues that appellate counsel failed to dispute the validity of the waiver of his right to appeal, in fact, in her Opposition to Motion by the United States to Dismiss Appeal, counsel specifically argued that the waiver of appeal was invalid because it was not knowingly and voluntarily made. The Fourth Circuit rejected the argument summarily. Accordingly, there could be no deficient conduct on the part of counsel in this regard.
In any event, Rodriguez's argument also fails on its merits because his waiver of appeal was knowingly and voluntarily made. The language of the Plea Agreement was "clear and unmistakable." United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005). It sets forth the offense Rodriguez was charged with, the potential sentence, the application of the Sentencing Guidelines, and a waiver of rights, including waiver of the right of appeal. Rodriguez acknowledged in writing and again orally before the Court that he had reviewed and understood the Plea Agreement and was voluntarily agreeing to its terms. See Blick, 408 F.3d at 169 (deeming the waiver of appeal to be knowingly and intelligently waived when the terms of the agreement were clear and defendant and trial counsel represented that they agreed to the plea and understood those terms). See also United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994) (holding the defendant's waiver of appeal to be knowing and intelligent due to several factors including an "extensive" Rule 11 colloquy).
In no sense was any conduct on the part of Rodriguez's trial or appellate counsel deficient.
V.
For the foregoing reasons, the Court DENIES Rodriguez's Motion to Vacate, Set Aside or Correct Sentence.
A separate order will ISSUE.