Opinion
Nos. CIV 05-1302 WJ/LCS, CR 04-1019 WJ.
March 30, 2006
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the court on Movant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, filed December 13, 2006. [Docket #1] Movant attacks the Judgment and Sentence entered on August 10, 2005 in the case styled United States of America v. Arthur Cornelius, et al., CR 04-1019 WJ. Respondent filed its Response to the Motion on January 12, 2006 [Docket #4], and Movant filed a Memorandum in support of her Motion on January 20, 2006. [Docket #5] The Court, having considered Ms. Naranjo's Motion and Response, the Response of the United States, the record herein, and being otherwise fully advised, recommends that the Petition be DENIED.
I. Procedural History
1. On April 30, 2004, a criminal complaint was issued in the United States District Court for the District of New Mexico charging Defendant and two other individuals with Armed Bank Robbery in violation of 18 U.S.C. §§ 2113(a), (d). [Docket #1; 04cr1019] A federal grand jury subsequently returned an indictment charging the three parties, including Ms. Naranjo, with Armed Bank Robbery in violation of 18 U.S.C. §§ 2113(a), (d) and with Use of a Firearm in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c). Ms. Naranjo was additionally charged with Aiding and Abetting on both counts in violation of 18 U.S.C. § 2. [Docket #15; 04cr1019]
2. On February 10, 2005, Ms. Naranjo signed a plea agreement and appeared before the Honorable Lorenzo F. Garcia, United States Magistrate Judge, to enter a plea of guilty. [Docket #86] The plea agreement stated that, pursuant to United States Sentencing Guidelines § 3E1.1, Ms. Naranjo had demonstrated a recognition of and affirmative acceptance of personal responsibility for her criminal conduct. As a result of this acceptance of responsibility, Ms. Naranjo was entitled to a reduction of three levels from the base offense level as to Count I (violation of § 2113). Id. Additionally, the United States agreed to recommend a sentence at the lower end of the appropriate guideline imprisonment range as to each count. Id.
3. Ms. Naranjo appeared before the Honorable William P. Johnson, United States District Judge, for sentencing on August 10, 2005. As mentioned in the plea agreement, the United States filed a motion pursuant to U.S.S.G. § 5K1.1 for downward departure based on substantial assistance. The Court reduced the offense level under the guidelines as to Count I by 14 levels. While recognizing that this was a substantial reduction, the Court took this step due to the mandatory minimum sentence required upon conviction of Count II, violation of 18 U.S.C. § 924(c). As to Count I, the Court sentenced Petitioner to a term of imprisonment of six months and as to Count II, a term of imprisonment of 84 months, or seven years, to run consecutively for a total of ninety (90) months. Additionally, Ms, Naranjo was to be placed on a term of supervised release for four years following completion of her sentence. The Court also imposed numerous special conditions for Petitioner's period of supervised release.
4. On December 13, 2005, Petitioner filed the present motion to set aside her sentence pursuant to 28 U.S.C. § 2255. [Docket #1] The § 2255 motion is timely under the Antiterrorism and Effective Death Penalty Act. See 28 U.S.C. § 2255, FED. R. APP. P. 4(b)(1)(A). The United States filed its Response to Defendant's Motion on January 12, 2006 [Docket #4] and Ms. Naranjo filed a Reply on January 20, 2006. [Docket #5]
II. Analysis
Defendant raises the following issues in her Petition:
I. Government's § 5K1.1 Motion and Court's acceptance of said motion was contrary to law
II. Counsel was Ineffective in advising Petitioner to accept a plea agreement contrary to law; plea was therefore involuntary
III. Counsel was Ineffective in failing to appeal a sentence that was contrary to law
Downward Departure based on Substantial Assistance
5. Prior to Petitioner's sentencing hearing, the United States filed a Motion for Downward Departure pursuant to U.S.S.G. § 5K1.1 based on Ms. Naranjo's substantial assistance to the government. [Docket #108; 04cr1019] In this Motion, the United States moved the Court to depart as to Count I of the Indictment. The government made no motion with respect to Count II. Petitioner claims it was contrary to law for the government to direct the Court that it could only depart from the sentencing guidelines as to Count I and that it was further contrary to law for the Court to "acquiesce" to this request. Additionally, she contends counsel was ineffective for not objecting to this error.
6. As the Court outlined during the sentencing hearing, Ms. Naranjo faced a guideline range of 51 to 63 months as to Count I and a mandatory minimum sentence of 7 years as to Count II. [Trans; 4] At sentencing, the government recommended a total term of imprisonment of 7 years for Petitioner. The Court determined to sentence Ms. Naranjo to a term of 6 months as to Count I of the indictment and to 7 years as to Count II, thereby acknowledging Ms. Naranjo's acceptance of responsibility.
7. Petitioner argues however that it was impermissible for the government to move for departure as to only one count of the indictment, as this motion, to which the Court supposedly acquiesced, gave the government improper authority to determine the actual sentence imposed. See United States v. Pippin, 903 F.2d 1478, 1485 (11th Cir. 1990). Ms. Naranjo relies on Pippin for the proposition that, when submitting a motion pursuant to § 5K1.1, the government may not limit its motion to only a portion of a defendant's sentence. Id.
Pippin is distinguishable from the present case. In Pippin, the government tried to limit its 5K1.1 motion such that the court could depart from the guidelines as to the fine portion of the sentence, but could not depart with respect to the defendant's term of incarceration. Id. at 1485. Pippin does not therefore stand for the proposition that a 5K1.1 motion could not be limited to a specific charge; still less does it indicate that a 5K1.1 motion can overcome a statutory mandatory minimum sentence.
8. Petitioner's argument ignores settled precedent on this issue. In the present matter, the government moved for a downward departure under U.S.S.G. § 5K1.1, pursuant to which the Court may depart from the otherwise applicable sentencing guidelines. The Supreme Court has instructed that the government must file different motions depending on whether it seeks a downward departure for an offense with a mandatory minimum sentence or a downward departure for one with a guideline sentence. See Melendez v. United States, 518 U.S. 120, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996); see also United States v. Belt, 89 F.3d 710, 712 (10th Cir. 1996). The Supreme Court was explicit in requiring that the government move specifically, pursuant to 18 U.S.C. § 3553(e), for a reduced sentence before the Court may impose a sentence lower than the statutory mandatory minimum. Melendez, 518 U.S. at 125-6, 116 S.Ct. at 2061. The Court fixed this requirement even where the government has already moved for a departure from the applicable guidelines range pursuant to § 5K1.1. Id.
9. In the present case, the government made a motion for departure only from the applicable guideline range pursuant to § 5K1.1 and made no motion regarding a departure from the mandatory minimum sentence under § 924(c) pursuant to § 3553(e). The Court therefore had no discretion to depart from the mandatory minimum required for Count II. Even assuming, arguendo, that it was impermissible for the government to reference Count I in its motion, I find that any error was harmless as the error had no effect on Ms. Naranjo's sentence. The government did not proffer a motion pursuant to § 3553(e). Without such a motion, Ms. Naranjo faced a minimum sentence of 7 years on Count II as set forth in Melendez. For these reasons, I do not believe Ms. Naranjo's sentence was contrary to law and recommend that her Petition be denied.
Ineffective Assistance of Counsel
10. A claim of ineffective assistance of counsel is a mixed question of law and fact. Fisher v. Gibson, 282 F.3d 1283, 1290 (10th Cir. 2002). Ms. Naranjo must demonstrate both deficient performance and prejudice. She must show that counsel made errors that were so serious that counsel's performance could not be considered "reasonable under prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The Court need not address both prongs of the inquiry if Ms. Naranjo makes an insufficient showing of either deficient performance or prejudice. Id. at 697.
11. Defendant has the burden of showing that counsel's performance "fell below an objective standard of reasonablenss." Miles v. Dorsey, 61 F.3d 1459, 1474 (10th Cir. 1995) (quoting Strickland, 466 U.S. at 688). Ms. Naranjo must show that counsel's "identified acts or omissions were outside the range of professionally competent assistance." Strickland, 466 U.S. at 690. There is a strong presumption that counsel has rendered adequate assistance and used reasonable professional judgment in making all significant decisions. Dorsey, 61 F.3d at 1474.
12. Under the second prong of Strickland, Defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome" of the prior proceeding. Id. Ms. Naranjo, in alleging ineffective assistance, bears the burden of alleging facts which, if proved, would entitle her to relief. Mere conclusory allegations without factual support are insufficient to meet this burden. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
a. Failure to Object to Illegal Sentence
13. Ms. Naranjo's second claim of error is that defense counsel unreasonably induced her to accept a plea agreement that was contrary to law, rendering her plea involuntary. I have already recommended finding that Ms. Naranjo's sentence was not contrary to law. Nevertheless, I will examine her allegation of an involuntary plea.
14. To make a showing of both deficient performance and prejudice under Strickland, Petitioner must demonstrate a reasonable probability that, "but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985); Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001). Prejudice in the context of a guilty plea requires Petitioner to show that there is a reasonable probability that, "but for counsel's errors, the result of the proceeding would have been different." Sherrill v. Hargett, 184 F.3d 1172, 1175 (10th Cir. 1999). Ms. Naranjo does not argue that she would have proceeded to trial absent counsel's advice, nor that the outcome would have been different had she done so. Rather, she apparently claims the plea was involuntary because she expected the agreement to result in a lesser sentence.
15. It appears to this Court however that Ms. Naranjo's plea agreement resulted in a substantially reduced sentence. Ms. Naranjo's offense level prior to the plea agreement was 24. Based on the government's motion, the Court agreed at the sentencing hearing to reduce Petitioner's offense level to 10. Ms. Naranjo therefore received a benefit by the plea, such that she has failed to show she was prejudiced by counsel's allegedly deficient performance. See United States v. Mezzanato, 513 U.S. 196, 210 (1995) ("[W]e have repeatedly held that the government `may encourage a guilty plea by offering substantial benefits in return for the plea.'"). While a sentence of 90 months may be greater than Ms. Naranjo had hoped, when one considers the possible sentence of 147 months, it is clear the agreement conferred a substantial benefit.
b. Failure to Appeal Illegal Sentence
16. As previously discussed, I recommend finding that there was no illegality in Ms. Naranjo's sentence. Additionally, I note that Petitioner's plea agreement contained an explicit waiver of her right to appeal under 18 U.S.C. § 3742 and stated that the waiver of such right was made knowingly and voluntarily. [Docket #86; 04cr1019] Ms. Naranjo only retained the right to file an appeal in the event the Court departed upward from the applicable guideline sentencing range. A Defendant's knowing and voluntary waiver of the statutory right to appeal her sentence is generally enforceable. United States v. Black, 201 F.3d 1296, 1300 (10th Cir. 2000). I have already determined that Ms. Naranjo was not illegally sentenced. As such, I do not believe she has shown she was prejudiced by defense counsel's failure to file a frivolous appeal which was contrary to her plea agreement and I recommend her claim of ineffective assistance be denied.
RECOMMENDATION
I recommend that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed December 13, 2006 [Docket #1] be DENIED. Timely objections to the foregoing may be made pursuant to 28 U.S.C. § 636(b)(1)(C). Within ten days after a party is served with a copy of these proposed findings and recommendations, that party may, pursuant to § 636(b)(1)(C), file written objections to such proposed findings and recommendations with the Clerk of the United States District Court, 333 Lomas Blvd. NW, Albuquerque, NM 87102. A party must file any objections within the ten day period if that party wants to have appellate review of the proposed findings and recommendations. If no objections are filed, no appellate review will be allowed.