Lujan v. United States

2004 DNH 135

• Court: District Court, D. New Hampshire
• Decided: September 14, 2004
• Docket: CV-04-247-SM
• Status: Published

Opinion

Lujan v . United States CV-04-247-SM 09/14/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Alberto Lujan, Petitioner

v. Civil N o . 04-247-SM Opinion N o . 2004 DNH 135 United States of America, Respondent

O R D E R

After negotiating an agreement with the government,

petitioner, Alberto Lujan, pled guilty to conspiracy to possess

with intent to distribute and to distribute marijuana, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to

imprisonment for 292 months, followed by five years of supervised

release. He was also fined in the amount of $1,000,000.00. That

sentence was affirmed on appeal. See United States v . Lujan, 324

F.3d 27 (1st Cir. 2003). He now seeks habeas corpus relief,

asserting that his trial counsel provided constitutionally

deficient representation at sentencing. See generally 28 U.S.C.

§ 2255. Accordingly, he petitions the court to vacate his

original sentence and resentence him. The government opposes Lujan’s requested relief, but its

memorandum of law is not responsive to the issues petitioner

raises. Indeed, the government’s studied avoidance of the issues

actually raised by Lujan serves only to suggest their merit. As

this has become a recurring circumstance in Section 2255 cases,

no further briefing would likely prove helpful in this case. The

court will proceed directly to resolution of the claims raised.

Background

Lujan alleges that he was denied effective assistance of

counsel at sentencing. He says that had he been afforded

adequate representation he would have obtained a downward

departure consistent with his negotiated plea agreement, and his

sentence would be some six years less than it i s . He also claims

that his trial counsel failed to meaningfully review the

presentence investigation report (“PSR”) with him, resulting in

an improper calculation of drug weight attributable to him under

the Sentencing Guidelines, an undeserved upward adjustment for

obstruction of justice, and an erroneous imposition of a

$1,000,000 fine. Only his first claim has merit.

2 Standard of Review

To prevail on an ineffective assistance of counsel claim, a

petitioner must “show, by a preponderance of the evidence, that

[his or her] trial counsel’s conduct fell below the standard of

reasonably effective assistance and that counsel’s errors

prejudiced the defense.” Gonzalez-Soberal v . United States, 244

F.3d 273, 277 (1st Cir. 2001) (emphasis in original) (citing

Strickland v . Washington, 466 U.S. 6 6 8 , 687 (1984)). See also

Cofske v . United States, 290 F.3d 437 (1st Cir. 2002). In

assessing the quality of trial counsel’s representation, the

court employs a highly deferential standard of review and “must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that i s ,

the [petitioner] must overcome the presumption that, under the

circumstances, the challenged action might be considered sound

trial strategy.” Strickland, 466 U.S. at 689 (citation and

internal quotation marks omitted). In other words, to satisfy

the first prong of the Strickland test, a petitioner must

demonstrate that his or her attorney made errors that were “so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Smullen v .

3 United States, 94 F.3d 2 0 , 23 (1st Cir. 1996) (quoting

Strickland, 466 U.S. at 687)).

To satisfy the second prong of the Strickland test, a

petitioner must show “actual prejudice.” As the court of appeals

has observed, “prejudice exists in a particular case when there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Gonzalez-Soberal, 244 F.3d at 278 (citation and

internal quotation marks omitted). A reasonable probability is

“one sufficient to undermine confidence in the outcome.” Id.

(citation omitted).

Discussion

I. Downward Departure under U.S.S.G. § 5K2.0

Lujan’s plea agreement with the government provided, in

pertinent part:

Pursuant to U.S.S.G. § 5K2.0, defendant, at the time of his sentencing, will request that the Court grant a downward departure (from defendant’s adjusted U.S.S.G. guideline range) based upon a significant medical condition which will result in a reduction of defendant’s life expectancy. Defendant agrees,

4 however, that such request will not seek a departure below a term of eighteen (18) years of imprisonment.

The United States, in turn, agrees that it will not oppose defendant’s request if defendant provides the United States with the written opinion of a physician, supported by competent and sufficient medical records, which unequivocally states that defendant’s medical condition will result in a significant reduction of his life expectancy.

Defendant agrees that if he fails to provide such information, or if such information fails to establish that defendant’s medical condition will result in a significant reduction of his life expectancy, the United States will remain free to oppose the request for a downward departure.

Plea agreement at para. 8(B) (emphasis supplied).

Notwithstanding the availability of two treating physicians

who were ready and willing to issue written medical opinions

unequivocally stating that Lujan’s medical condition would result

in a significant reduction of his life expectancy, trial counsel

failed to obtain and present such statements to the government

prior to sentencing. See Transcript of Sentencing Hearing at 13

(Defense Counsel: “To be perfectly candid with the Court, I

expected that by today I would have had some evidence that was

just a wee bit stronger than that which I do have . . . . ” ) .

Accordingly, absent the requisite medical opinion and record

5 support, the government was free t o , and did, oppose Lujan’s

motion for a downward departure. The government offered the

testimony of D r . Allan Sheinbaum, who credibly testified that

Lujan’s medical condition was not likely to result in a shortened

life expectancy, at least not based upon the limited medical

records that were available to him.

Given the evidence before i t , the court acknowledged its

authority to depart downward on the grounds asserted (medical

condition), but declined to exercise its discretion to do s o .

Accepting the government’s recommendation that Lujan be sentenced

at the low end of the applicable Sentencing Guideline range, the

court imposed a term of imprisonment of 292 months (Criminal

History Category I I , Level 3 9 ) .

In his habeas petition, Lujan demonstrates that, had trial

counsel simply asked, his treating physicians (Dr. Karsch and D r .

Hirsch) would have provided written medical opinions that met the

requirements of Lujan’s plea agreement - that i s , medical

opinions unequivocally declaring that Lujan’s medical condition

will result in a significant reduction in his life expectancy.

6 See Exhibit A to habeas petition, Letter from D r . Daniel Karsch

(“His medical conditions will result in a significant reduction

of his life expectancy.”); Exhibit B , letter from D r . Robert

Hirsch (“Any of these medical condition[s] will result in a

significant reduction of his life expectancy.”). Those opinions

would also likely have been supported by records (presumably

“competent and sufficient medical records”) from the physicians’

files, as required by the plea agreement. Trial counsel failed

to obtain such letters and records. As a direct consequence of

that failure, the government was free to oppose what turned out

to be a rather weak motion for downward departure. The court

denied that motion.

Lujan asserts that he was substantially and demonstrably

prejudiced by his counsel’s failure to obtain the medical opinion

letters and records prior to sentencing (or, at a minimum, by his

failure to seek a continuance of sentencing until he had obtained

those documents). Had he received constitutionally adequate

representation, Lujan says his attorney would have obtained those

letters and documents, his motion for downward departure would

have been stronger and, significantly, it would have been

7 unopposed by the government. Given all that, says Lujan, the

court likely would have granted the motion and sentenced him to

the agreed upon departure minimum of 18 years’ imprisonment. The

court agrees, with one minor reservation.

Trial counsel’s failure to obtain and present the government

with the contemplated medical opinion letters and records prior

to sentencing, which were readily available and which likely

would have met the specific requirements of Lujan’s plea

agreement, constitutes ineffective assistance of counsel.

Counsel’s failure to adequately seek those medical opinion

letters and records fell below the standard reasonably effective

counsel is expected to meet, and that failure substantially

prejudiced petitioner. Had counsel obtained those documents and

presented them to the government, it probably would have been

bound not to oppose Lujan’s motion for a downward departure to 18

years’ imprisonment. Under those circumstances, the court would

have likely acquiesced in the unopposed departure motion and

imposed a term of 18 years in prison.

8 But, that having been said, it is not clear from the record

whether, under the plea agreement, the government would (or must)

be satisfied by the opinions and supporting records that defense

counsel could have obtained. What Lujan has filed is enough to

establish that the requisite opinions were readily available, but

it is not so apparent that “competent and sufficient medical

records” supporting those opinions are available. As Lujan was

entitled to adequate legal representation and the benefit of his

plea bargain, s o , too, is the government entitled to the benefit

of its bargain - presentation of the described opinions and

supporting records before sentencing, and an opportunity either

to agree not to oppose the contemplated downward departure

motion, or to contest the adequacy of what is provided and assert

its contingent right, under the agreement, to oppose the motion.

Due to counsel’s deficient performance, neither Lujan nor the

government obtained the benefits of the bargain struck.

II. Drug Weight Attributable to Petitioner.

Next, petitioner says his counsel provided constitutionally

deficient representation insofar as he failed to meaningfully

review with Lujan the substance of the PSR. As a result, says

9 Lujan, the drug weight attributed to him at sentencing (in excess

of 1,000 kilograms) was inaccurate and materially affected his

sentence in an adverse way.1

This claim requires little discussion. In his plea

agreement, Lujan specifically stipulated to the drug weight

attributable to him.

By entering a guilty plea to the United States’ Superceding Information, defendant agrees and stipulates to waive any and all claims arising under Apprendi v . New Jersey, 530 U.S. 466 (2000). Defendant further agrees and stipulates that the United States would (and could) prove beyond a reasonable doubt, if defendant proceeded to trial, that during the course of the conspiracy, defendant was responsible for the distribution of in excess of 1000 kilograms of a mixture or substance containing a detectable amount of marijuana, thereby subjecting defendant to a maximum statutory term of life imprisonment.

Plea agreement at para. 2 (emphasis supplied). Lujan does not

assert that counsel failed to explain the meaning or consequences

of the words used in the plea agreement, nor does he claim to

1 The PSR notes that the government believes it could prove that Lujan is responsible for more than 100,000 pounds of marijuana. Taking a more conservative approach to that calculation, the PSR concludes that 54,700 pounds (24,811.92 kilograms) are attributable to him - nearly 25 times the amount actually attributed to Lujan at sentencing.

10 have been unaware that his plea agreement contained such a

stipulation. Indeed, his plea colloquy establishes his knowledge

o f , and agreement with, the stipulated drug weight. Accordingly,

as to that portion of his habeas petition, he is entitled to no

relief.

III. Obstruction of Justice Enhancement.

Lujan’s argument with regard to the enhancement for

obstruction of justice is not well-developed; it is simply

mentioned in passing in a footnote and described as a consequence

of counsel’s having (allegedly) failed to adequately review with

him the contents of the PSR. Consequently, Lujan has failed to

demonstrate how counsel’s allegedly deficient representation in

that regard caused him to suffer demonstrable harm.

Merely asserting that counsel failed to adequately explain

the nuances of the PSR does not entitle Lujan to habeas relief.

Instead, Lujan must point to evidence which might establish that:

(1) he was unaware that the government was planning to seek an

obstruction of justice enhancement; (2) had he been aware of that

fact, he would have introduced evidence in opposition; and (3)

11 such evidence likely would have had an impact on the sentence the

court actually imposed (i.e., the court likely would not have

accepted the proposed obstruction enhancement). He has failed to

point to any such evidence. Accordingly, as to his claim with

regard to the obstruction of justice enhancement, Lujan is not

entitled to habeas relief.

IV. Fine.

Finally, Lujan asserts that his trial counsel’s

constitutionally deficient representation (i.e., failing to

thoroughly review the PSR with him) caused him to incur an unjust

fine in the amount of $1,000,000. Again, however, Lujan’s

argument is not well-developed; like his claim regarding the

obstruction of justice enhancement, it is merely referenced in a

footnote and described as a consequence of counsel’s alleged

failure to adequately review with him the contents of the PSR.

That claim, too, fails.

Lujan has not demonstrated any actual prejudice stemming

from counsel’s allegedly deficient representation. The financial

statement Lujan filed prior to sentencing was devoid of

12 supporting documents and neither his petition nor his supporting

memorandum explains how, at sentencing, he would have proved an

inability to pay the fine. See, e.g., United States v . Shea, 211

F.3d 6 5 8 , 675 (1st Cir. 2000) (noting that the defendant bears

the burden of proving an inability to p a y ) .

The evidence before the court at sentencing (which Lujan did

not, nor does he now rebut), overwhelmingly suggested that he had

the ability to pay the fine imposed. As the court of appeals

noted in Lujan’s direct appeal:

[T]he marijuana Lujan distributed in 1991, 42,000 pounds, alone yielded approximately $62,400,000 in revenue, which the probation officer stated was a conservative estimate. Given Lujan’s failure to present evidence that he was subject to extensive seizures or that he had no access to possible hidden drug proceeds, the district court could reasonably conclude that this money went somewhere and that Lujan would have access to it upon his release. Moreover, the PSR noted that a confidential informant told police that Lujan owned houses in Arizona, California, and Mexico.

United States v . Lujan, 324 F.3d at 3 5 . Given the fact that a

conservative estimate suggests that Lujan’s drug distribution

enterprise yielded more than $60 million in 1991 alone, and at

least the suggestion that he has extensive real estate holdings,

13 he bore a substantial burden to demonstrate his claimed inability

to pay the fine actually imposed. C f . United States v . Shea, 211

F.3d at 675 (“Here, the fact that defendants had stolen more than

the amount of their fines and failed to account for a substantial

portion of the money is enough for us to sustain the district

court. That the defendants denied that they had any money

created at best a credibility contest and the court was free to

disbelieve the self-interested and general denials offered by the

defendants.”).

Having failed to point to any evidence that might even

suggest an inability to pay, Lujan has failed to demonstrate that

he suffered any harm from trial counsel’s alleged failure to

adequately discuss with him the contents of the PSR.

Consequently, he cannot satisfy the second prong of the

Strickland analysis - actual prejudice - and, therefore, is not

entitled to habeas relief with regard to his claim that he was

sentenced to pay an unjust fine.

14 Conclusion

Lujan’s claims with regard to the drug weight attributed to

him, the obstruction of justice enhancement, and the fine are all

without merit. As to those claims, then, his habeas petition is

denied.

He has, however, demonstrated that he is entitled to habeas

relief with regard to his assertion that he was deprived of his

bargained-for opportunity to present a downward departure motion,

unopposed by the government, as described in his plea agreement.

Even applying a highly deferential standard of review to defense

counsel’s performance, the court cannot avoid the conclusion

that, had counsel made a reasonable effort to obtain the readily

available medical opinion letters and supporting records

contemplated by the plea agreement, Lujan likely would have been

entitled to file an unopposed (and well-supported) departure

motion and, as a consequence, likely would have obtained the

degree of departure contemplated: 18 years in prison, rather than

the nearly 25 years he actually received. Counsel’s performance

was not constitutionally adequate; it fell below the standard of

15 reasonably effective assistance at sentencing and, as a

consequence, Lujan was substantially prejudiced.

Lujan’s motion for an enlargement of time within which to

file a response to the government’s objection (document n o . 10)

is denied as moot. The petition for habeas corpus relief

(document n o . 1 ) is granted as follows. Petitioner shall, if he

can, present the government with the medical opinions and

supporting medical records contemplated by the plea agreement

within sixty (60) days of the date of this order. Within thirty

(30) days thereafter, the government will notify petitioner and

the court of its position with respect to its obligation not to

oppose the contemplated departure motion. Further proceedings

will be had, as necessary, after the government responds.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 1 4 , 2004

16 cc: Ronald L . Abramson, Esq. Randy Olen, Esq. Peter E . Papps, Esq.