Opinion
Case No. 99 C 2345
April 22, 2002
ORDER
I. Introduction
Derrick Aquino is in federal custody, serving a 223-month sentence for violation of 21 U.S.C. § 846, conspiracy to possess with intent to distribute cocaine. Aquino makes twelve arguments in his original motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence: (1) his guilty plea was not knowing, intelligent, or voluntary; (2) his conviction was based on evidence obtained pursuant to an unconstitutional search and seizure of his home; (3) his sentence was statutorily enhanced on the basis of a 1993 felony conviction that was constitutionally infirm; (4) his sentence was improperly enhanced on the basis of prior misdemeanor convictions; (5) his conviction was based on illegal wiretap evidence; (6) errors in the presentence report violated his right to due process; (7) the three-point enhancement for his role in the offense was improper; (8) he was not responsible for 150 or more kilograms of cocaine; (9) he was denied the right to testify at sentencing; (10) he was not responsible for his crimes because of youthfulness and outside influences; and he was denied effective assistance of counsel both (11) in the district court proceedings and (12) on appeal. While this motion was pending, the Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Aquino seeks to supplement his original motion with two new arguments based on Apprendi: (13) he would not have pleaded guilty had he known that the government had to prove beyond a reasonable doubt the quantity of drugs; and (14) he was denied due process when the sentencing court determined the quantity of drugs by applying a preponderance of the evidence standard.
II. Analysis
As explained below, none of Aquino's arguments have merit.
A. Voluntariness of Guilty Plea
Aquino argues that he pleaded guilty only because his lawyer assured him that he would get a one-third reduction for cooperation (presumably under U.S.S.G. § 5K1.1) and that he would be responsible for less than 150 kilograms. Because Aquino failed to raise this argument on direct appeal, he is barred from doing so on this 2255 motion absent a showing of cause and actual prejudice. Salberg v. United States, 969 F.2d 379, 381 (7th Cir. 1992). Aquino cites as cause the ineffective assistance of the attorney who represented him both in the district court and on appeal. Under Strickland v. Washington, 466 U.S. 668, 687-91 (1984), Aquino must show both that his trial counsel was incompetent and that, but for the lawyer's deficient performance, he would not have pleaded guilty. Because Aquino founders on both prongs with respect to his representation at the district court level, there is no reason to consider his contention that counsel performed inadequately on appeal.
At the sentencing hearing, the Assistant United States Attorney ("AUSA") stated on the record that there were no agreements as to the government's intention to file a motion for a downward departure based on cooperation. The court asked Aquino if that was his understanding, to which Aquino replied "Yes." (Tr. at 12.) "Has anyone made you any promises that we haven't talked about today?" the court followed up. Aquino responded "No." (Tr. at 13.) The AUSA also made clear that the government would present evidence to show that Aquino was responsible for more than 150 kilograms of cocaine. After Aquino's counsel stated that Aquino would dispute that amount, the court asked Aquino directly if he was pleading guilty to the conspiracy charge with responsibility for no specific amount of cocaine. Aquino said "Yes, ma'am." (Tr. at 17-18.)
Aquino's allegations of additional promises made by his attorney therefore directly contradict his sworn statements at the sentencing hearing, which carry a strong presumption of veracity. See Politte v. United States, 852 F.2d 924, 931 (7th Cir. 1988). "[M]ere allegations of promises made by counsel are insufficient to support a claim of ineffective assistance." United States v. Rodriguez-Luna, 937 F.2d 1208, 1214 (7th Cir. 1991). In this case the unadorned record reveals nothing about Aquino's attorney predicting a substantial assistance departure or assuring Aquino that he would be held responsible for less than 150 kilograms. See id. at 1214-15. In light of Aquino's Rule 11 plea colloquy, his failure to produce more than unsubstantiated allegations of promises made by his lawyer undermines his claim of ineffective assistance. But even assuming that Aquino's lawyer made the alleged assurances, the lawyer's errors would not rise to the requisite level of incompetence. At most, Aquino's lawyer made mistakes "as to the facts or as to what a court's judgment might be on given facts," not as to a proposition of law. Id. at 1215 n. 8 (quoting McMann v. Richardson, 397 U.S. 759, 770 (1970)). This type of error generally does not render an attorney's performance constitutionally inadequate. Id.; see also Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995), overruled on other grounds, O'Dell v. Netherland, 95 F.3d 1214, 1222 (4th Cir. 1996) (en banc).
Neither has Aquino made a sufficient showing of prejudice. Aquino must do more than merely allege that he would not have pleaded guilty but for his lawyer's alleged incompetence. Arango-Alvarez v. United States, 134 F.3d 888, 893 (7th Cir. 1998) ("Merely alleging that he would have insisted on going to trial is insufficient to establish prejudice under the Strickland standard."). Aquino admitted in his December 17, 1997 DEA proffer that he received 188 kilograms of cocaine from a man named Javier Cuevas. In light of this proffer Aquino must have realized that it was quite likely that he would be held responsible for more than 150 kilograms of cocaine, whatever his lawyer may have told him. By similar token, the AUSA told the court during Aquino's change of plea hearing that there were no agreements with respect to a motion for a downward departure based on cooperation. Aquino expressly confirmed that this was also his understanding. For Aquino now to assert that he pleaded guilty only because his lawyer told him that there was an agreement of the exact type he disclaimed under oath in open court strains credulity.
B. Illegally Obtained Evidence of Guilt
In his second and fifth arguments, Aquino raises First and Fourth Amendment challenges to the evidence of his guilt. The court explained that in pleading guilty Aquino was foregoing his opportunity to challenge the evidence of his guilt, and Aquino confirmed that he understood. (Tr. at 9.) The reason is simple: "when a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized." Haring v. Prosise, 462 U.S. 306, 321 (1983). Thus, "the focus of federal habeas inquiry is the nature of the advice and voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity." Tollett v. Henderson, 411 U.S. 258, 266 (1973).
Aquino does not contend that his guilty plea was involuntary as a result of the failure to suppress evidence. However, Aquino does argue that his lawyers were incompetent in failing to raise and win the suppression arguments. Once again, Aquino must show constitutionally deficient performance and actual prejudice. One of Aquino's lawyers moved to suppress the evidence obtained pursuant to a search of 153 Marsch Lane on the ground that there was no probable cause. Judge Anderson denied the motion. Aquino's lawyers thereafter refused his requests to move for reconsideration or to file an interlocutory appeal. The refusal to file an interlocutory appeal was not error. A court's order refusing to suppress evidence is not a final judgment and not immediately appealable. Cf. United States v. Rodriguez, 975 F.2d 404, 408 (7th Cir. 1992) (explaining that 18 U.S.C. § 3731 creates an exception to the final judgment rule by allowing the government to immediately appeal a decision suppressing evidence).
As for the motion to reconsider, there is some authority for the proposition that the "failure to seek reconsideration of a denied motion can never render counsel's performance deficient." Dailey v. White, No. CA 91-0954-AH-C, 1992 U.S. Dist. LEXIS 21547, at *40 (S.D.Ala. Mar. 31, 1992). Although this court would not go so far as to adopt such an absolute rule, ineffective assistance claims based on the failure to move for reconsideration will almost always fail. Unless there is evidence that was not considered by the judge the first time around, the judge's initial ruling will strongly suggest that it was not unreasonable for the lawyer to think that a motion to reconsider would fail. This case is no exception. Aquino's suppression motions are not the "dead-bang-winners" he claims them to be. See United States v. Velazquez, No. 96 CR 291, 1997 U.S. Dist. LEXIS 13936 (N.D.Ill. Sept. 10, 1997); United States v. Velazquez, No. 96 CR 291, 1997 U.S. Dist. LEXIS 13661 (N.D.Ill. Sept. 5, 1997). Whether or not these decisions were perfectly correct, it was not constitutionally deficient performance for Aquino's lawyers to believe that attempts to overturn them either on a motion for reconsideration or on appeal would have been futile.
C. Criminal History
Aquino claims that his sentence was statutorily enhanced based on his 1993 felony conviction. This is simply not true. He was sentenced to 223 months of confinement, which is less than the 20-year statutory minimum that would have resulted from taking into account the 1993 felony conviction. Nonetheless, the court relied on the fact that Aquino committed the instant offense while on probation for the 1993 conviction in determining Aquino's criminal history category under the Sentencing Guidelines. Even crediting Aquino's allegation that his challenge to the 1993 conviction is based on newly discovered evidence so that Aquino is not procedurally barred from raising it now, the argument fails. Collateral attack of a predicate offense under the Guidelines is limited to claims that the defendant was deprived of counsel. See United States v. Arrango-Montoya, 61 F.3d 1331, 1336 (7th Cir. 1995). Here Aquino contends that his attorney labored under a per se conflict of interest, not that he was denied counsel altogether. However arbitrary and unfair it may seem to distinguish between a complete denial of counsel and the denial of effective counsel, the Seventh Circuit has adopted this distinction. See id. ("[A] prior conviction may be collaterally attacked at sentencing only where the defendant claims that he was deprived of counsel in violation of Gideon [v. Wainwright], 372 U.S. 335 [(1963)]."); see also United States v. Magana, 118 F.3d 1173, 1210 (7th Cir. 1997) (citing Custis v. United States, 511 U.S. 485, 496 (1994)). Here any arbitrariness and unfairness is mitigated by the potential availability of state relief. Aquino states that a post-conviction petition raising this issue is pending in Illinois state court. If he succeeds in obtaining reversal of the 1993 conviction, he may then have a remedy in federal court, but for now at least this argument goes nowhere. See Ryan v. United States, 214 F.3d 877, 881 (7th Cir. 2000).
Along similar lines, Aquino complains that the sentencing court erred by relying on one or more of three prior misdemeanor convictions. Aquino attacks these convictions on various grounds in support of his contention that he should have been sentenced at the Category I criminal history level (instead of Category II). Again, Aquino failed to raise this issue at sentencing or on direct appeal. The only reason he gives now for this procedural default is his attorney's warning that if he appealed his sentence in any way the government would appeal the reduction of Aquino's criminal history level from III to II. Aquino provides no explanation for his failure to raise the argument at sentencing. Ineffective assistance of counsel could not have been the reason because the undisputed fact that Aquino committed the instant offense while on probation, wholly apart from the misdemeanors, was sufficient to justify Aquino's Category II criminal history level. U.S.S.G. § 4A1.1(d). At sentencing, Aquino himself conceded the appropriateness of these two criminal history points. (Tr. of 7/1/98 at 10.) Moreover, Aquino's premise that the court relied on any of the misdemeanors is false. The court specifically deducted the three criminal history points derived from these offenses. Aquino's trial counsel was not only competent in this respect, he was successful.
D. Presentence Report Errors, Role in the Offense, Drug Quantity
Aquino raises numerous objections to the presentence report. Each of the alleged errors either is irrelevant, is addressed elsewhere in this opinion, or was considered at trial and on direct appeal. First, it is simply not relevant to Aquino's sentence that the conspiracy may have lasted two rather than three years or that someone else may have owned the stash house on Fifth Street in Aurora. The appropriate criminal history level is discussed above. This leaves the third category of errors, which includes errors cited by Aquino to support his contentions that he supervised only two other individuals and that he was responsible for less than 150 kilograms of cocaine. Aquino made both arguments at sentencing and the drug-quantity argument on appeal. See United States v. Aquino, 172 F.3d 54, 1999 U.S. App. LEXIS 1514 (7th Cir. Jan. 28, 1999). These decisions represent the law of the case. Daniels v. United States, 26 F.3d 706, 711-12 (7th Cir. 1994). Accordingly, this court need not reexamine these issues unless there is some good reason to do so.
There is no such reason here. By agreement, Aquino's offense level was increased three levels on the ground that he had a supervisory role in criminal activity involving five or more participants. U.S.S.G. § 3B1.1(b). Aquino now admits to exercising control over two people. He appears to be laboring under the false premise that a three-level adjustment under section 3B1.1(b) requires that he personally control five or more individuals. This simply is not the case. See United States v. McGuire, 957 F.2d 310, 316-17 (7th Cir. 1992) ("[T]here is no requirement in § 3B1.1(b) that a defendant control the activities of all the participants in the criminal activity."); see also U.S.S.G. § 3B1.1 Application Note 2 ("To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants."). In short, Aquino concedes the factual predicate for a three-level adjustment based on his supervisory role. As to the quantity of drugs, Aquino essentially reiterates the arguments he made before, embellished with accusations that his co-conspirators lied. Aquino's detailed explanation of how the government reached an allegedly inflated figure demonstrates that there was a factual basis for reaching a 160 1/2 kilogram total. Of course, Aquino takes issue with specific components of the government's calculation, but he does not produce compelling evidence to show that the government got it wrong. Nothing in the petition convinces this court that adhering to the law of the case would "produce an injustice." United States v. Mazak, 789 F.2d 580, 581 (7th Cir. 1986).
Elsewhere, McGuire held that a four-level increase under section 3B1.1(a) for "an organizer or leader" was appropriate only if the defendant controlled all of the other participants. 957 F.2d at 317 n. 4. The Sentencing Commission apparently rejected this interpretation when it amended the application note as quoted above. United States v. Okoli, 20 F.3d 615, 616 (5th Cir. 1994). Either way, the three-level adjustment was undeniably appropriate.
On this score, it is worth noting that Aquino admitted to receiving 188 kilograms of cocaine in a DEA proffer.
E. Right to Testify at Sentencing
Aquino argues that he was denied the right to testify at sentencing. As a preliminary matter, the court notes that Aquino is disingenuous when he asserts that the court never suggested that he could do more than bear silent witness to the sentencing proceedings. In fact, the court directly queried Aquino several times and Aquino answered. (Tr. of 7/1/98, at 2, 3, 5-6, 10, 12; Tr. of 7/29/98 at 6, 10-11.) Most significantly, the court confirmed that Aquino had read of copy of the presentence report and asked Aquino if there was any else he wanted to say before sentence was imposed. (Tr. of 7/29/98 at 10.) Aquino responded with an apology, mentioning his young age at the time of the offense and asking for compassion. (Id. at 10-11.) Nonetheless, Aquino had a right to give formal testimony and did not take advantage of that right, for which he now blames his lawyer. To show ineffective assistance of counsel, Aquino must establish both deficient performance and prejudice. He can do neither. In fact, it is quite likely that Aquino's testimony would have done more harm than good. Aquino had made inconsistent statements to the government and admitted on one occasion to receiving 188 kilograms of cocaine. It was not unreasonable for Aquino's attorney to believe that the better strategy was for Aquino to stay off the witness stand. See Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997) (explaining that attorney's decision not to present a particular witness "can be strategically sound if it is based on the attorney's determination that the testimony the witnesses would give might on balance harm rather than help the defendant").
F. Youthfulness and Outside Influences
Aquino contends that his attorney dropped the ball by failing to argue for a downward departure based on Aquino's youthfulness, his exposure to violent films, the influence the older members of the conspiracy had over him, and his participation in rehabilitative classes while in custody. None of these facts would have affected Aquino's sentence.
What the court has already said concerning Aquino's various ineffective assistance of counsel claims suffices to dispose of grounds eleven and twelve, in which these arguments are simply repackaged.
G. Apprendi
Aquino's reliance on Apprendi is misplaced. There, the United States Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490. The statutory penalty for possession with intent to distribute 5 kilograms or more of cocaine is imprisonment for no less than ten years and not more than life. 21 U.S.C. § 841(b)(1)(A)(ii). Attempt or conspiracy to commit this offense, which is the charge Aquino pleaded guilty to, carries the same penalty. Id. § 846. Aquino was sentenced to a term of imprisonment of 223 months (18 years and 7 months). Because Aquino's sentence did not exceed the applicable statutory maximum Apprendi does not apply. Hernandez v. United States, 226 F.3d 839, 841-42 (7th Cir. 2000). Aquino's argument that he would not have pleaded guilty had he known the government was required to prove the drug quantity beyond a reasonable doubt is not plausible. In reaching a sentence of 223 months under the Guidelines, this court relied in part on a finding that Aquino was responsible for 150 or more kilograms of cocaine. Aquino now contends that the true amount is 125 1/2 kilograms. Five kilograms was all that was needed to subject Aquino to a statutory maximum of life in prison. Indeed, possession with intent to distribute any amount of cocaine, even without a prior felony drug conviction, carries a maximum penalty of 20 years, which is more than Aquino received. 21 U.S.C. § 841(b)(1)(C). Unless Aquino thought the government would be unable to show beyond a reasonable doubt his responsibility for any cocaine, Apprendi was simply not relevant.III. Conclusion
For the foregoing reasons, Aquino's motion to vacate, set aside, or correct his sentence and his request for an evidentiary hearing are denied.