UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Franklyn Morillo
v. Case No. 20-cv-164-SM Opinion No. 2020 DNH 207 United States of America
ORDER
Petitioner providently pled guilty to participating in a
drug distribution conspiracy. He and his wife operated a
substantial drug distribution business from their home in
Haverhill, Massachusetts. His plea was offered under a written
agreement with the government in which the parties stipulated
(Fed. R. Cr. P. 11(c)(1)(C)) that the Guidelines calculation in
his case would start with a base offense level of not less than
26 nor more than 30, depending on the drug weight attributable
to Petitioner.
The pre-sentence investigation report conservatively
estimated the attributable drug weight and the court determined
that the correct base offense level was 30, within the range
stipulated. Petitioner was sentenced, inter alia, to 168 months
in prison, a sentence at the low end of the applicable
Guidelines range. Petitioner appealed his sentence, seeking to
1 challenge enhancements under the Guidelines, as well as some
supervised release conditions imposed. The appeal was deemed
barred by the waiver provisions included in his written
agreement with the government. United States v. Morillo, 910
F.3d 1 (1st Cir. 2018).
Petitioner now seeks similar relief, under 28 U.S.C. §
2255, on an ineffective assistance of counsel theory. He argues
that defense counsel 1) should have challenged the drug weight
attributable to him, as well as the leadership enhancement and a
premises or “stash house” enhancement, at sentencing; 2)
incorrectly advised him that he could be responsible for all
drugs involved in the conspiracy rather than just those
reasonably foreseeable to him; 3) failed to advise him of his
right to testify at sentencing, which he claims he would have
exercised; 4) failed to challenge conditions of supervised
release imposed; and, 5) generally failed to advise him that he
could plead guilty with no plea agreement and did not adequately
discuss the advantages and disadvantages of proceeding to trial
rather than pleading guilty.
Petitioner’s Burden - Ineffective Assistance
To prevail on an ineffective assistance of counsel claim, a
petitioner must show two things: First, that counsel’s
2 representation fell below an objective threshold of reasonable
care, and second, that he was prejudiced by that deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The prejudice test is met only if Petitioner shows that
there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel’s
deficient representation. Id.
In this case, Petitioner also seems to challenge the
providence of his guilty plea, saying he would not have pled
guilty if he had been advised by counsel of the advantages and
disadvantages of going to trial, or if he had been properly
advised that he would be held accountable under the Guidelines
only for those drug quantities involved in the conspiracy that
were reasonably foreseeable to him (instead of the full amount).
He further says that he would have negotiated an agreement that
did not include a waiver of his appellate rights had he been
told of that option. To the extent Petitioner challenges his
guilty plea, in order to meet the Strickland prejudice test, he
must demonstrate “a reasonable probability that but for
counsel’s errors, he would not have pled guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1984).
3 Discussion
Failure to Contest the Attributable Drug Quantities
Defense counsel’s acceptance of the drug quantities
estimated by the probation officer - and communicated in the
presentence investigation report, was not only reasonable and
well within the bounds of adequate representation, but, had
counsel “put the government to its proof,” as Petitioner claims
he should have done, that would have likely qualified as
ineffective assistance. It cannot be rationally disputed that
the evidence would easily have supported a much higher estimate
of drug quantities reasonably foreseeable to Petitioner. That
evidence included Petitioner’s own statements to police, and,
those captured on wiretaps, as well as the testimony of co-
conspirators. Petitioner was held accountable for only one year
of drug dealing, when he himself admitted that he had been
dealing for years, and, the attributed quantities during that
year were substantially less than quantities he himself had
acknowledged.
Had defense counsel made an issue of it, the government
would have been given the opportunity to present that evidence
and the resulting offense level would have been higher. Without
question, Petitioner would have lost the benefit of his plea
bargain, and would have been facing greater exposure to a much
4 longer sentence, which he likely would have received. Counsel’s
decision was wise, and, certainly no prejudice can be shown,
given the predictable adverse results for Petitioner had counsel
not accepted the conservative quantity estimates.
The Enhancements for Role in the Offense and Premises Use (“stash house”)
Defense counsel objected to each enhancement based on the
undisputed evidence and made appropriate legal arguments
supporting his objections. That his objections were not
sustained does not alter the fact that his representation fell
well within the bounds of reasonable and competent
representation. Petitioner’s claims that counsel should have
done more (call witnesses, call the Petitioner, etc.) are
unaccompanied by any proffer that would undermine in any way the
rulings on those enhancements. The record is clear and supports
both enhancements, and counsel vigorously and appropriately
challenged their imposition, within the bounds of reasonable
representation. Counsel was not ineffective in that regard, and
Petitioner cannot show prejudice, as he cannot demonstrate a
reasonable probability that but for counsel’s actions the
outcome would have been different.
5 Failure to Properly Advise of Right to Testify at Sentencing; Properly Advise About Drug Quantity Attribution; to Properly Advise of Possible Guilty Plea Without an Agreement Containing a Waiver of Appellate Rights or of the Advantages or Disadvantages of Going to Trial Rather Than Plead Guilty; and, Failure to Call Mitigation Witnesses
Petitioner asserts that defense counsel did not advise him
of his right to testify at sentencing. Had counsel so advised,
he says he would have exercised his right and testified in
opposition to the drug weights ascribed to him, the enhancement
for using his home to deal drugs, and the enhancement for his
supervisory role in the distribution conspiracy.
“A criminal defendant’s right to testify on his own behalf
– or, conversely, not to testify – is a critically important
right. Given the salience of the right, a defendant is entitled
to be fully briefed so that he may make an informed choice.”
Casiano-Jimenez v. United States, 817 F.
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Franklyn Morillo
v. Case No. 20-cv-164-SM Opinion No. 2020 DNH 207 United States of America
ORDER
Petitioner providently pled guilty to participating in a
drug distribution conspiracy. He and his wife operated a
substantial drug distribution business from their home in
Haverhill, Massachusetts. His plea was offered under a written
agreement with the government in which the parties stipulated
(Fed. R. Cr. P. 11(c)(1)(C)) that the Guidelines calculation in
his case would start with a base offense level of not less than
26 nor more than 30, depending on the drug weight attributable
to Petitioner.
The pre-sentence investigation report conservatively
estimated the attributable drug weight and the court determined
that the correct base offense level was 30, within the range
stipulated. Petitioner was sentenced, inter alia, to 168 months
in prison, a sentence at the low end of the applicable
Guidelines range. Petitioner appealed his sentence, seeking to
1 challenge enhancements under the Guidelines, as well as some
supervised release conditions imposed. The appeal was deemed
barred by the waiver provisions included in his written
agreement with the government. United States v. Morillo, 910
F.3d 1 (1st Cir. 2018).
Petitioner now seeks similar relief, under 28 U.S.C. §
2255, on an ineffective assistance of counsel theory. He argues
that defense counsel 1) should have challenged the drug weight
attributable to him, as well as the leadership enhancement and a
premises or “stash house” enhancement, at sentencing; 2)
incorrectly advised him that he could be responsible for all
drugs involved in the conspiracy rather than just those
reasonably foreseeable to him; 3) failed to advise him of his
right to testify at sentencing, which he claims he would have
exercised; 4) failed to challenge conditions of supervised
release imposed; and, 5) generally failed to advise him that he
could plead guilty with no plea agreement and did not adequately
discuss the advantages and disadvantages of proceeding to trial
rather than pleading guilty.
Petitioner’s Burden - Ineffective Assistance
To prevail on an ineffective assistance of counsel claim, a
petitioner must show two things: First, that counsel’s
2 representation fell below an objective threshold of reasonable
care, and second, that he was prejudiced by that deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The prejudice test is met only if Petitioner shows that
there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel’s
deficient representation. Id.
In this case, Petitioner also seems to challenge the
providence of his guilty plea, saying he would not have pled
guilty if he had been advised by counsel of the advantages and
disadvantages of going to trial, or if he had been properly
advised that he would be held accountable under the Guidelines
only for those drug quantities involved in the conspiracy that
were reasonably foreseeable to him (instead of the full amount).
He further says that he would have negotiated an agreement that
did not include a waiver of his appellate rights had he been
told of that option. To the extent Petitioner challenges his
guilty plea, in order to meet the Strickland prejudice test, he
must demonstrate “a reasonable probability that but for
counsel’s errors, he would not have pled guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1984).
3 Discussion
Failure to Contest the Attributable Drug Quantities
Defense counsel’s acceptance of the drug quantities
estimated by the probation officer - and communicated in the
presentence investigation report, was not only reasonable and
well within the bounds of adequate representation, but, had
counsel “put the government to its proof,” as Petitioner claims
he should have done, that would have likely qualified as
ineffective assistance. It cannot be rationally disputed that
the evidence would easily have supported a much higher estimate
of drug quantities reasonably foreseeable to Petitioner. That
evidence included Petitioner’s own statements to police, and,
those captured on wiretaps, as well as the testimony of co-
conspirators. Petitioner was held accountable for only one year
of drug dealing, when he himself admitted that he had been
dealing for years, and, the attributed quantities during that
year were substantially less than quantities he himself had
acknowledged.
Had defense counsel made an issue of it, the government
would have been given the opportunity to present that evidence
and the resulting offense level would have been higher. Without
question, Petitioner would have lost the benefit of his plea
bargain, and would have been facing greater exposure to a much
4 longer sentence, which he likely would have received. Counsel’s
decision was wise, and, certainly no prejudice can be shown,
given the predictable adverse results for Petitioner had counsel
not accepted the conservative quantity estimates.
The Enhancements for Role in the Offense and Premises Use (“stash house”)
Defense counsel objected to each enhancement based on the
undisputed evidence and made appropriate legal arguments
supporting his objections. That his objections were not
sustained does not alter the fact that his representation fell
well within the bounds of reasonable and competent
representation. Petitioner’s claims that counsel should have
done more (call witnesses, call the Petitioner, etc.) are
unaccompanied by any proffer that would undermine in any way the
rulings on those enhancements. The record is clear and supports
both enhancements, and counsel vigorously and appropriately
challenged their imposition, within the bounds of reasonable
representation. Counsel was not ineffective in that regard, and
Petitioner cannot show prejudice, as he cannot demonstrate a
reasonable probability that but for counsel’s actions the
outcome would have been different.
5 Failure to Properly Advise of Right to Testify at Sentencing; Properly Advise About Drug Quantity Attribution; to Properly Advise of Possible Guilty Plea Without an Agreement Containing a Waiver of Appellate Rights or of the Advantages or Disadvantages of Going to Trial Rather Than Plead Guilty; and, Failure to Call Mitigation Witnesses
Petitioner asserts that defense counsel did not advise him
of his right to testify at sentencing. Had counsel so advised,
he says he would have exercised his right and testified in
opposition to the drug weights ascribed to him, the enhancement
for using his home to deal drugs, and the enhancement for his
supervisory role in the distribution conspiracy.
“A criminal defendant’s right to testify on his own behalf
– or, conversely, not to testify – is a critically important
right. Given the salience of the right, a defendant is entitled
to be fully briefed so that he may make an informed choice.”
Casiano-Jimenez v. United States, 817 F. 3d 816, 818 (1st Cir.
2016). Crediting Petitioner’s assertions as true for the
purposes of resolving this issue, counsel’s failure to advise
Petitioner of both his right to testify and his right to make
the choice between testifying or not, would constitute
ineffective assistance.1
1 Obviously, no finding of fact is made in that regard as no hearing, at which defense counsel would have the opportunity to challenge the assertion of fact has been held.
6 Turning to the second part of the Strickland test,
prejudice, the record reveals none, and Petitioner demonstrates
none. Petitioner proffers nothing that he would have said or
offered had he been called as a witness that might show a
reasonable probability that, but for counsel’s failure, the
result of the sentencing proceeding would have been different –
“different” meaning a result more favorable to him.
As discussed earlier, the attributed drug weight was a
decidedly low estimate, but an estimate based almost wholly on
Petitioner’s own prior statements and admissions, as well as
wiretap evidence and co-conspirator testimony. Petitioner
proffers nothing but general denials that he would have
contributed had he been called to testify. But such self-
serving denials would hardly have proven effective in lowering
the quantity estimate or undermining either enhancement, given
the record. The evidence definitely militated against his
testifying; the government’s case was not “thin,” but
overwhelming with respect to drug quantities, Petitioner’s role
in the offense, and the use of Petitioner’s premises to
distribute drugs; Petitioner’s general denials would not have
“tipped the scales in his favor” or “turned the tide” with
respect to those sentencing issues. The record in this case
does offer a basis for believing that if Petitioner had been
7 properly advised he would not have testified. See generally,
Casiano-Jimenez, supra. Similarly, counsel’s failure to call
mitigation witnesses resulted in no determinable prejudice.
Petitioner proffers no testimony from potential mitigation
witnesses that might show a reasonable probability that the
Petitioner bargained for and received a sentence resting on
a base offense level between 26 and 30. Indeed, he was
sentenced at the bottom of the applicable Guideline Sentencing
Range. He has not and cannot show prejudice, because his
argument offers nothing that would have supported either a
different ruling on the enhancements or the drug quantity, or
with respect to a departure or variance below the bottom-of-the-
range sentence imposed. Speculative potential mitigation
witness testimony not directed to the factors underlying
imposition of the challenged adjustments, or warranting a
departure or variance, does not support a conclusion that the
outcome would have been different had counsel called the
potential witnesses.
Petitioner says, on different grounds, that he would not
have pled guilty had defense counsel not erroneously told him
that he could be held accountable for all drugs involved in the
8 conspiracy, rather than just those drugs that were reasonably
foreseeable to him. Petitioner concedes, however, that counsel
did correct any misadvice on that score before Petitioner pled
guilty. Yet he went forward without comment and offered a fully
vetted and provident guilty plea under the agreement he had
signed, fully aware of the correct calculation method under the
Guidelines. And, he was sentenced according to the correct drug
quantity attribution. He was not prejudiced because the
attribution was very conservative – well below what the
government likely would have established if put to its proof.
Finally, Petitioner says he would not have pled guilty if
counsel had properly explained that he could plead guilty
without a plea agreement; and he would not have pled guilty
under the agreement negotiated with the government had he been
advised properly about the drug quantities attributable to him
(those that were reasonably foreseeable); and, perhaps, that he
would not have pled guilty had counsel fully described the
advantages and disadvantages of going to trial. Even accepting
Petitioner’s allegations of ineffective assistance in those
regards, he again fails to meet the Strickland prejudice test.
Of course, “[c]ourts should not upset a plea solely because
of post hoc assertions from a defendant about how he would have
9 pleaded but for his attorney’s deficiencies. Judges should
instead look to contemporaneous evidence to substantiate a
defendant’s expressed preferences.” Lee v. United States, 137
S. Ct. 1958, 1967 (2017).
Petitioner was facing overwhelming evidence of his guilt of
participating, in a supervisory role, in a major years-long drug
distribution conspiracy. He pled guilty under an agreement that
“offered sufficient advantages in limiting his exposure in the
face of strong evidence of guilt:”
The evidence included multiple witnesses against Morillo as well as co-conspirators he supervised. He also had a substantial criminal history and committed the present offense while on probation. In exchange for Morillo’s guilty plea, the government agreed to sentencing stipulations. First, Morillo’s base offense level would be no lower than twenty-six but no higher than thirty. Second, the government would not oppose a reduction in Morillo’s adjusted offense level based upon his acceptance of personal responsibility for the offense. But for the plea bargain, a much longer sentence could easily have been imposed and almost certainly would have been.
United States v. Morillo, 910 F.3d 1, 3 (1st Cir. 2018).
Under these circumstances it is inconceivable that
Petitioner would have seriously considered pleading guilty with
no agreement limiting his exposure to a substantially more
severe sentence, or that he would have elected to go to trial
10 after discussing the advantages and disadvantages of such a
course. Petitioner offers no rationale that is even remotely
plausible – there were no realistic advantages to going to
trial, and there were undeniable and substantially beneficial
reasons to plead guilty under the sentence-limiting agreement.
The contemporaneous circumstances do not substantiate
Petitioner’s post hoc assertions that he would not have pled
guilty.
It is equally inconceivable that Petitioner would have
refused the offered plea agreement had he known at the outset
that he would be held accountable under the Guidelines only for
those drugs and quantities involved in the conspiracy that were
reasonably foreseeable to him. He of course knew that before
the plea colloquy in court, where he testified under oath that
he fully understood the terms of the agreement and the
consequences of his plea, and he stated that he wished to waive
his rights to a trial and other important rights and plead
guilty. His motivation was clear – the agreement benefitted him
considerably by limiting what otherwise would have been a
substantially more severe sentence. And, he received a sentence
that was consistent with his bargain (base offense level 30),
and one at the low end of the applicable Guidelines range as
well.
11 Petitioner’s suggestion that, had he been better informed
by defense counsel, he would not have pled guilty unless the
plea agreement did not include a waiver of appellate rights, is
also implausible. While Petitioner suggests that would have
been the case, nothing in the record supports that post hoc
assertion. The waiver is standard practice for the government.
Defendant, had he asked, would have been so advised. There is
nothing peculiar or different about this case, and Petitioner
suggests nothing, that might have led the government to excise
that provision. And, those waiver provisions were fully
explored with the Petitioner during the plea hearing – he fully
understood them and their effect, and he chose to go forward
with his guilty plea. This argument, too, has all the earmarks
of one arising from a post-sentencing disappointment rather than
from a contemporaneous preference thwarted by ineffective
counsel.
Conditions of Supervised Release
Finally, defendant seeks to challenge the imposed terms of
supervised release, also on grounds that counsel provided
ineffective assistance. The conditions imposed are standard and
are consistent with those recommended by the Sentencing
Guidelines. See e.g. Morillo, supra, at 4. Counsel did not
12 fall below an objective threshold of reasonable care in not
objecting to the terms of supervised release, and, even if he
had, Petitioner suffered no prejudice as he is not yet on
supervised release. When released to the term of supervision,
he will have an opportunity to request changes to or relief from
the conditions imposed, in the context of the circumstances then
prevailing.
Conclusion
Petitioner, having failed to show that the sentence imposed
was not authorized by law or otherwise open to collateral
attack, or that there has been such a denial or infringement of
his constitutional rights so as to render the judgment unlawful,
the petition is hereby dismissed.
Rule 11 Certification
As Petitioner has not made a substantial showing of the
denial of a constitutional right, the court declines to issue a
certificate of appealability. However, Petitioner is free to
seek such a certificate from the United States Court of Appeals
for the First Circuit, located in Boston, Massachusetts.
13 SO ORDERED.
____________________________ Steven J. McAuliffe United States District November 30, 2020
cc: Franklyn Morillo, pro se Seth R. Aframe, Esq.