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United States v. Villegas-Cortez

United States District Court, District of Kansas

May 19, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
EMIGDIO VILLEGAS-CORTEZ, Defendant. Criminal No. 10-20100-07-CM

MEMORANDUM AND ORDER

CARLOS MURGUIA United States District Judge

This matter is before the court on defendant Emigdio Villegas-Cortez’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 355) and Motions for Discovery (Docs. 356, 364). For the reasons stated below, the court denies the motions.

I. FACTUAL BACKGROUND

On September 8, 2010, defendant was charged with conspiracy to distribute marijuana (Count 1), conspiracy to distribute methamphetamine (Count 2), conspiracy to distribute cocaine (Count 3), possession with intent to distribute cocaine (Count 5), and illegal re-entry by a removed alien (Count 6). (Doc. 51.) On September 20, 2011, defendant entered into a plea agreement with the government and pled guilty to Count 2. (Docs. 220, 231, 232.)

A Presentence Report (PSR) was prepared and filed, which attributed to the defendant more than 1, 000 kilograms of marijuana, more than ten kilograms of methamphetamine, and more than ten kilograms of cocaine. (Doc. 282 ¶ 41.) Pursuant to United States Sentencing Guideline § 2D1.1, these drug quantities were converted for a total equivalency of 23, 000 kilograms of marijuana, translating to a base offense level of thirty-six. (Id. ¶ 47.) Enhancements for possession of a dangerous weapon and being a manager or supervisor were included, resulting in an adjusted offense level of forty-one. (Id. ¶¶ 48–52.) With a reduction for acceptance of responsibility, the total offense level became thirty-eight. (Id. ¶¶ 53–57.) Defendant had two criminal history points, placing him in criminal history Category II. (Id. ¶ 62.) The guideline range was 262–327 months’ imprisonment. (Id. ¶ 84.) Defendant made no objections to the PSR. (Id. ¶ 105.)

On March 28, 2012, the court conducted a sentencing hearing. While defendant did not object to the PSR, he previously had filed a motion to set aside his plea agreement, claiming that the government breached the agreement by not seeking a downward departure for substantial assistance. (Doc. 286.) The court denied defendant’s motion, finding that defendant had failed to show bad faith on the part of the government or otherwise offer a valid reason to set aside the plea agreement. (Doc. 340 at 71.) The court sentenced defendant to 262 months of imprisonment.

Defendant appealed, arguing that the government breached the plea agreement by not moving for a downward departure and that the court erred by refusing to continue the sentencing hearing to allow a witness to testify live, rather than accepting that witness’s testimony by proffer. The Tenth Circuit upheld defendant’s sentence. (Doc. 352.) Defendant then filed this pro se motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255.[1]

II. ANALYSIS

Defendant asserts the following three grounds for relief: “counsel’s failure to insure that the prosecutor abide by the agreed 10 year maximum sentence for the acceptance of the plea establishes that the Petitioner did not have competent representation” (Ground I) (Doc. 355–1 at 2), “[c]ounsel’s failure to completely challenge the 262 month sentence shows that counsel was not competent in the law” (Ground II) (id. at 4), and that counsel never argued at sentencing or on appeal[2] that “the maximum sentence for a Schedule III controlled substance is ten years” (Ground III) (id. at 6).

A. Ground I

1. Legal Standards

Defendant claims he was denied effective assistance of counsel during the negotiation of his plea agreement. The court applies the standard identified in Strickland v. Washington, 466 U.S. 668 (1984), when determining whether a habeas petitioner’s counsel provided ineffective assistance. See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland). Under Strickland, a petitioner bears the burden of satisfying a two-pronged test in order to prevail. First, he must show that his attorney’s “performance was deficient” and “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. The court affords considerable deference to an attorney’s strategic decisions and “recognize[s] that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.

Second, a habeas petitioner must demonstrate prejudice, which requires a showing that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. But, despite the existence of two prongs, “there is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the [petitioner] makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id. at 697.

2. Plea Negotiations

Defendant contends that his counsel “promise[d]” to negotiate a maximum sentence of ten years and “convinced” defendant to accept the plea offer. (Doc. 355–1 at 2.) Foremost, it is established that a “miscalculation or erroneous sentence estimation by [a] defense counsel is not a constitutionally deficient performance rising to the level of ineffective assistance of counsel.” United States v. Gordon, 4 F.3d 1567, 1570–71 (10th Cir. 1993). As such, to the extent ...


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