Opinion
CR 99-550-BR, (CV 02-321-BR).
July 3, 2002
MICHAEL W. MOSMAN, United States Attorney, GARY J. MEABE, Special Assistant United States Attorney, Portland, OR, Attorneys for Plaintiff.
MARCO ANTONIO CHAVEZ, Reg. No. 64264-065, Pecos, TX, Defendant, Pro se.
OPINION AND ORDER
This matter comes before the Court on Defendant Marco Antonio Chavez's Motion to Vacate, Set Aside, or Correct Sentence (#37) pursuant to 28 U.S.C. § 2255. For the reasons that follow, the Court DENIES Defendant's Motion.
FACTUAL AND PROCEDURAL BACKGROUND
On December 11, 1999, a federal grand jury returned a two-count Indictment charging Defendant with possession of pseudoephedrine with knowledge it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(2) and being an alien illegally in the United States in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). On February 15, 1999, Defendant pled guilty to Count 1 of the Indictment.
In exchange for Defendant's guilty plea, the government agreed to dismiss Count 2 of the Indictment. On April 27, 2000, this Court sentenced Defendant to 60 months imprisonment.
DISCUSSION
I. Defendant's Counsel Did Not Provide Ineffective Assistance by Failing to Request an Adjustment to Defendant's Base Offense Level Under the United States Sentencing Guidelines (U.S.S.G.).
Defendant challenges the sentence imposed by this Court following his guilty plea. Defendant contends his counsel was ineffective for failing to object to the presentence report on the ground that it did not reflect an adjustment to Defendant's base offense level for Defendant's allegedly minor or minimal role in the offense for which he was convicted. See U.S.S.G. § 3B1.2(a) and (b).
To prevail on a claim of ineffective assistance of counsel, Defendant must show (1) his attorney's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant's failure to make the required showing on either prong defeats an ineffective assistance claim. Id. at 700. Judicial scrutiny must be highly deferential, and the Court must apply a strong presumption that the attorney's conduct was within the wide range of reasonable professional assistance. Id.
Under the terms of the Plea Agreement, the government agreed to dismiss the second count of the Indictment and to stipulate that the gun found in Defendant's apartment should not result in a two-level increase in Defendant's offense level pursuant to U.S.S.G. § 2D1.11. The government also agreed not to charge Defendant with the more serious offense of aiding and abetting in the manufacture of methamphetamine.
Defendant, in turn, agreed not to ask for any departure or other adjustments aside from a three-level reduction for acceptance of responsibility. Defendant's counsel, therefore, was prohibited by the terms of the Plea Agreement from requesting an adjustment on any basis, including Defendant's alleged minor or minimal participation. Accordingly, the Court finds Defendant's counsel did not provide ineffective assistance when she failed to breach the plea agreement.
To the extent Defendant attempts to assert his counsel's assistance was ineffective because counsel did not inform Defendant of the availability of an adjustment for minor or minimal participation, that argument also fails.
U.S.S.G. § 3B1.2 states:
Mitigating Role
Based on the defendant's role in the offense, decrease the offense level as follows:
(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
Defendant's participation exceeded a minor or minimal role, and, therefore, Defendant was not entitled to a reduction for minor or minimal participation. Defendant possessed a very large amount of pseudoephedrine, the precursor chemical used to make methamphetamine. He also had a large amount of cash ($18,900). Defendant also admitted to the arresting officers that it was not the first time he had delivered pseudoephedrine.
In addition, a reduction in the base offense level under § 3B1.2 is ordinarily not available "[i]f a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct . . . ." U.S.S.G. § 3B1.2, application note 4. The application note includes an example almost identical to Defendant's circumstances:
For example, if a defendant whose actual conduct involved a minimal role in the distribution of 25 grams of cocaine . . . is convicted of simple possession of cocaine . . . no reduction for a mitigating role is warranted because the defendant is not substantially less culpable than a defendant whose only conduct involved the simple possession of cocaine.
Even if Defendant's conduct involved a minimal or minor role in the distribution or manufacture of methamphetamine, no reduction would have been warranted because Defendant was convicted of the lesser offense of possession of pseudoephedrine with the knowledge or reason to know it would be used to manufacture methamphetamine (base offense level 28), and, pursuant to the Plea Agreement, he was not charged with the more serious offense of aiding and abetting in the manufacture of methamphetamine (base offense level 38).
Nevertheless, Defendant argues statements made by the government at sentencing indicate the government believed Defendant's role in the offense was minimal. Defendant, however, takes the government's statements out of context. The government's attorney was explaining to the Court, at the Court's request, its reasons for recommending a sentence at the low-end of the guideline range instead of a mid-range sentence. The government stated Defendant's role in the offense "was a minimal role. It was a middleman role," and Defendant's role was a factor considered by the government when it recommended a low-end sentence. The government's statement merely clarified that the government took Defendant's role into account when it entered into the Plea Agreement.
Based on the foregoing, the Court finds Defendant's counsel did not provide ineffective assistance by failing to pursue a reduction under U.S.S.G. § 3B1.2.
II. Defendant's Trial Counsel Did Not Provide Ineffective Assistance by Failing to Request an Adjustment to Defendant's Base Offense Level pursuant to U.S.S.G. § 5C1.2.
Defendant also contends his counsel provided ineffective assistance by failing to request a downward adjustment pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, the safety valve provision. When read together, the statute and the sentencing guideline provide the Court should not impose a statutory minimum sentence when a defendant is prosecuted under certain statutes and meets specific criteria. This safety valve provision, however, does not provide for a downward adjustment of the base offense level as Defendant argues. Defendant, moreover, did not fall under the safety valve provision because Defendant did not receive a statutory minimum sentence. These provisions, therefore, do not apply and Defendant's counsel did not render ineffective assistance by failing to raise them.
III. Defendant's Reply
In his Reply, Defendant raises for the first time numerous additional bases for his claim that his counsel's assistance was ineffective. The Court need not consider arguments made for the first time in a reply brief. See United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (noting courts ordinarily decline to consider arguments raised for the first time in a reply brief). Defendant's new arguments, moreover, are without merit.
Defendant pled guilty to possession of pseudoephedrine with the knowledge or reason to know it would be used to manufacture methamphetamine. When he entered his guilty plea, Defendant stated under oath he understood the charge against him, he was under no pressure to enter a guilty plea, he was satisfied with his attorney's advice, and he understood he was waiving the presumption of innocence, and his right to proceed to a jury trial. Defendant also stated under oath that he understood by pleading guilty he was giving up his right to see, to hear, and to confront the witnesses and evidence against him in addition to relieving the government from the requirement of proving his guilt beyond a reasonable doubt. Finally, Defendant acknowledged under oath he was giving up his right to use the Court's subpoena power to compel the attendance and production of witnesses potentially favorable to his defense.
Although he expressly acknowledged under oath that he had good cause to believe the pseudoephedrine pills in his possession were to be used to manufacture methamphetamine, Defendant now apparently contends he did not have that knowledge and the government could not have obtained his conviction on either count of the Indictment. Defendant argues his counsel was ineffective because she did not cross-examine the arresting officers, and, if she had, she would have determined Defendant's arrest and the search of his home occurred without probable cause and without a warrant. Defendant also contends his counsel failed to file pretrial motions, to investigate, and to request discovery from the government. Defendant's unconditional guilty plea, however, constitutes a waiver of all pre-plea constitutional defects. See United States v. Reyes-Platero, 224 F.3d 1112, 1114 (9th Cir. 2000).
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. 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 that occurred prior to the entry of the guilty. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [inadequate]. . . .
Id. at 1115 (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)). Accordingly, any alleged defects in the search of Defendant's home or his arrest were waived by virtue of Defendant's guilty plea.
Defendant also argues for the first time in his reply that his guilty plea was coerced by his attorney. He asserts his attorney told him he had to plead guilty in order to secure the release of his wife and dismissal of charges against her. The Court finds this contention to be without merit. Defendant was asked at his plea hearing whether his guilty plea was in any way forced or coerced and, while under oath, he answered "No." Such declarations made in open court carry a strong presumption of truthfulness and are not overcome by the subsequent presentation of conclusory and contradictory allegations. Blackledge v. Allison, 431 U.S. 63, 74 (1977).
To the extent Defendant intends to argue his guilty plea was not voluntary and intelligent due to the alleged ineffective assistance of counsel, that argument also fails. "A claim of ineffective assistance used to attack the validity of a guilty plea may be sustained where the petitioner establishes that the ineffective performance `affected the outcome of the plea process . . . [such] that absent the erroneous advice, he would have insisted on going to trial.'" United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996) (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). Defendant does not identify any advice given by his counsel that would have changed his decision to plead guilty but merely argues he believes he would have prevailed if he had gone to trial. In any event, as noted, Defendant acknowledged in the plea proceedings he was satisfied with trial counsel's advice and services. Defendant's belated assertions to the contrary do not overcome the "strong presumption" that his statements of satisfaction with counsel were true at the time of his plea.
Based on the foregoing, the Court finds Defendant's guilty plea was voluntary, knowing, and intelligent and was not the result of ineffective assistance of counsel.
IV. Defendant Is Not Entitled to an Evidentiary Hearing.
Section 2255 requires a district court to "grant a hearing to determine the validity of a petition brought under that section `[u]nless the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (emphasis in original). The court may deny a hearing if the movant's allegations, when compared to the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998) (internal quotations and citation omitted). To earn the right to a hearing, therefore, the movant must make specific factual allegations that, if true, would entitle him to relief. Id. Mere conclusory statements are insufficient to require a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981). The decision to hold a hearing is at the court's discretion. Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988).
Defendant makes only conclusory allegations. As discussed herein, the record refutes his arguments by conclusively demonstrating Defendant was not entitled to a reduction in his base offense level for minor or minimal participation, was not entitled to the benefits of the safety valve provision, and did not receive ineffective assistance of counsel. The Court finds, therefore, Defendant is not entitled to an evidentiary hearing.
CONCLUSION
For the above reasons, Defendant's Motion to Vacate, Set Aside, or Correct Sentence (#37) is DENIED.
IT IS SO ORDERED.