No. 04 C 165.
September 8, 2004
MEMORANDUM OPINION AND ORDER
Torres was charged in a two-count indictment with violations of 21 U.S.C. §§ 841(a)(1) and 846. Following a "blind" plea of guilty to both counts of the indictment, the district court sentenced Torres to 120 months' imprisonment, the mandatory minimum sentence. The district court considered whether Torres was eligible for the safety valve provision and found that he was not because of his criminal history. Torres appealed the sentence. Torres's appellate counsel filed an Anders brief, contending that there were no nonfrivolous issues for appeal. The Seventh Circuit affirmed Torres's sentence, specifically rejecting Torres's claim that the district court judge could have applied the safety valve provision in his case.
Torres has since filed this motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Torres alleges that he received ineffective assistance of counsel for the following three reasons: his trial and/or appellate counsel (1) failed to properly object to and appeal the district court's alleged abuse of discretion in not recognizing its authority to apply the safety valve provision, (2) failed to argue for a diminished capacity downward departure, and (3) failed to argue for the application of an intervening amendment to the sentencing guidelines that, Torres argues, would have led to a reduction in his base offense level.
To establish that he received ineffective assistance of counsel, Torres must show that his attorney's representation fell below an objective standard of reasonableness and that but for his attorney's errors, there was a reasonable probability that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 694-94 (1984). Furthermore, the defendant must overcome a strong presumption that his counsel rendered reasonably effective assistance under the totality of the circumstances. United States v. Moralez, 964 F.2d 677, 683 (7th Cir. 1992).
First, Torres argues that his trial and appellate counsel were ineffective for failing to properly object to and appeal the district court's alleged abuse of discretion in not recognizing its authority to sentence him pursuant to the safety valve provision, 18 U.S.C. § 3553 (f)(1) and USSG § 5C1.2. The Seventh Circuit has held that a district court may not depart downward to make a defendant eligible for the safety valve. United States v. Vega-Montano, 341 F.3d 615 (7th Cir. 2003). Here, the district court did what it was required to do and found that it could not depart downward for the purpose of making Torres eligible for the safety valve provision. Since this was clearly the result required by the law, neither Torres's trial counsel nor his appellate counsel can be faulted for failing to argue that the district court's decision was erroneous.
Second, Torres argues that his appellate counsel was ineffective because he did not appeal the trial counsel's failure to argue for a diminished capacity downward departure. This argument, however, is a non-starter. A defendant can receive a sentence below the mandatory minimum only if the government makes a motion for departure based on the defendant's substantial cooperation, see 18 U.S.C. § 3553(e); USSG § 5K1.1, or if the defendant qualifies for sentencing under the safety valve provision. See 18 U.S.C. 3553(f); USSG § 5C1.2. Since Torres was sentenced under the mandatory minimum and since he was not eligible for the safety valve and did not cooperate with the government, his sentence would not have been affected by a downward departure in the guideline range for diminished capacity. Torres's counsel cannot be faulted for failing to pursue an initial motion or an appeal that would be futile.
Finally, Torres argues that his appellate counsel was ineffective for failing to appeal an intervening amendment to the sentencing guidelines that, according to Torres, requires his base offense level to be lowered pursuant to § 2D1.1(a)(3). This argument fails for two reasons: the amendment could not be applied retroactively and, as was stated above, Torres would not have benefitted from a change in the guideline range. USSG § 2D1.1(a)(3) was amended in 2002 to provide a "cap" of level 30 for narcotics offenders who received adjustments pursuant to USSG § 3B1.2. See Amendment 640, USSG Supp. to App. C. at 264 (2002). According to USSG § 1B1.10, Amendment 640 is not to be applied retroactively. Thus, Torres's counsel was not ineffective in not seeking the retroactive application of the amendment since it was clearly not applicable. Even if the amendment could have been applied retroactively, it would still not have altered Torres's sentence. Torres was sentenced under the ten year mandatory minimum and would have received the ten years regardless of his guideline range.
For the reasons stated herein, Torres's Motion to Vacate, Set Aside, or Correct His Sentence is DENIED.