1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 SERGIO MORA ESPINOZA, Case No.: 18-cv-1462-BEN 16-cr-1476-BEN 7 Movant,
8 v. ORDER 9 UNITED STATES OF AMERICA, 10 Respondent. 11 12 Movant has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 13 28 U.S.C. § 2255. The motion is denied. 14 BACKGROUND 15 Movant pleaded guilty and was convicted of conspiracy to commit international 16 money laundering in violation of 21 U.S.C. § 1956(a)(2)(B)(1) and sentenced to 87 17 months. Although the government argues to the contrary, this Court finds that his motion 18 is timely filed. In his plea agreement, Movant agreed to waive to the full extent of the 19 law, any right to appeal or to collaterally attack the conviction and sentence. Plea Agmt. 20 § XI. Movant now seeks to collaterally attack and vacate his conviction and sentence. 21 He puts forward five grounds for relief. 22 LEGAL STANDARD 23 Under section 2255, a movant is entitled to relief if the sentence: (1) was imposed 24 in violation of the Constitution or the laws of the United States; (2) was given by a court 25 without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by 26 law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. 27 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed to 28 state a claim, or has “no more than conclusory allegations, unsupported by facts and 1 refuted by the record,” a district court may deny a § 2255 motion without an evidentiary 2 hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986). That is the case here. 3 DISCUSSION 4 Movant validly waived his right to collaterally attack his sentence. The record 5 discloses no issues as to the voluntariness of Movant’s waiver. To the contrary, there are 6 many record indications that his collateral attack waiver was voluntary. The last such 7 indication is reflected in the sentencing transcript. After sentenced was pronounced, the 8 Court asked Movant directly whether he waived his right to appeal or collateral attack. 9 Movant answered, “Yes.” He did not answer, “no,” and he did not object or ask any 10 questions. As such, though he protests now that he did not understand the rights he was 11 relinquishing, the record clearly demonstrates that this claim has no merit. Therefore, the 12 Court enforces the collateral attack waiver. Ruiz-Diaz, 668 F. App’x at 290 (citing 13 United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009)). Accordingly, Movants’ 14 claims one and five, claims that do not assert ineffective assistance of counsel, are denied 15 as waived. 16 Movant asserts in claims two, three and four, that his attorney rendered ineffective 17 assistance. As claims of ineffective assistance are not precluded by plea waivers, they are 18 addressed next. In this case, the Court notes that the PSR calculated Movant’s Guideline 19 range as 168 to 210 months. The Government calculated the Guideline range as 108 to 20 135 months. Movant calculated the Guideline range as 87 to 108 months. All agreed that 21 Movant’s criminal history score was 0 and criminal history category was I. 22 This Court announced a tentative sentence of 135 months at the start of the 23 sentencing hearing, which was below the low end as calculated by the Probation 24 Department and within the range as calculated by the government. After considering the 25 arguments of defense counsel, Mr. Michael Berg, Esq., this Court imposed a sentence of 26 87 months, which is a sentence 48 months below its tentative sentence and at the low end 27 of the Guideline range as calculated by the defense. Against this backdrop, Movant 28 asserts three claims of ineffective assistance. 1 To prevail on an ineffective assistance of counsel claim, a defendant must show 2 that his attorney’s performance was unreasonable under the prevailing professional 3 standards and that the deficient performance prejudiced his defense. See Strickland v. 4 Washington, 466 U.S. 668, 694-95 (1984). There is a “strong presumption” that 5 counsel’s conduct is reasonable, Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 6 1995), and “[r]eview of counsel’s performance is highly deferential.” United States v. 7 Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986). To establish “prejudice” under 8 Strickland’s second prong, a petitioner must show a “reasonable probability that, but for 9 counsel’s errors, he would not have pleaded guilty and would have insisted on going to 10 trial.” Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). Movant has not established either 11 prong of the Strickland requirements. 12 Ground two of Movant’s argument is that his counsel advised him to enter the plea 13 agreement without explaining the full range of the consequences of the plea. This 14 general allegation lacks important specifics and lacks evidentiary support. It does appear 15 that Movant was unhappy with the government’s sentencing recommendation. 16 Apparently, Movant thought the government was going to recommend a 70-month 17 sentence based on cooperation. But the government was not substantially assisted by the 18 cooperation and left the recommendation at the low end of the Guideline calculation. 19 Movant offers no details about how his own attorney misinformed him about the plea. 20 His plea did benefit Movant in that as a result the government agreed to reduce his 21 Guideline calculation by three points for acceptance of responsibility and by an additional 22 two points for expeditious resolution. That resulted in an adjusted offense level of 29 23 with a low end of 87 months as compared to the low end as calculated by the PSR of 168 24 months with an offense level of 35. In other words, Movant gained significant benefits 25 from accepting the plea agreement. Had Movant gone to trial and lost he would likely 26 face a middle range sentence between 168 months and 210 months. Movant does not 27 allege that he had a viable defense to the charged crime. He does not allege that he 28 would have rejected the plea agreement and hazarded a trial had he been more fully 1 advised of the plea consequences. To sum up, there is little to overcome the presumption 2 that his attorney was effective. Hendricks, 70 F.3d at 1036. Even assuming, for the sake 3 of argument, that the performance prong was established, Movant has not viably 4 established the prejudice prong as required by Hill, 474 U.S. at 56-57. Ground two is 5 without merit. 6 Ground three puts forth the claim that Movant’s attorney was ineffective because 7 the amount of loss attributed to his crime was incorrectly calculated as too high and 8 counsel should have argued for a downward departure. The PSR reports that Mora was 9 responsible for laundering at least $3,800,000 but less than $5,000,000 in U.S. currency. 10 It reports that Movant crossed the border and in the United States and filed Cash 11 Transaction Reports totaling roughly $5,000,000. Under USSG 2B1.1(J) this amount 12 increased the offense level by +18.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 SERGIO MORA ESPINOZA, Case No.: 18-cv-1462-BEN 16-cr-1476-BEN 7 Movant,
8 v. ORDER 9 UNITED STATES OF AMERICA, 10 Respondent. 11 12 Movant has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 13 28 U.S.C. § 2255. The motion is denied. 14 BACKGROUND 15 Movant pleaded guilty and was convicted of conspiracy to commit international 16 money laundering in violation of 21 U.S.C. § 1956(a)(2)(B)(1) and sentenced to 87 17 months. Although the government argues to the contrary, this Court finds that his motion 18 is timely filed. In his plea agreement, Movant agreed to waive to the full extent of the 19 law, any right to appeal or to collaterally attack the conviction and sentence. Plea Agmt. 20 § XI. Movant now seeks to collaterally attack and vacate his conviction and sentence. 21 He puts forward five grounds for relief. 22 LEGAL STANDARD 23 Under section 2255, a movant is entitled to relief if the sentence: (1) was imposed 24 in violation of the Constitution or the laws of the United States; (2) was given by a court 25 without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by 26 law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. 27 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed to 28 state a claim, or has “no more than conclusory allegations, unsupported by facts and 1 refuted by the record,” a district court may deny a § 2255 motion without an evidentiary 2 hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986). That is the case here. 3 DISCUSSION 4 Movant validly waived his right to collaterally attack his sentence. The record 5 discloses no issues as to the voluntariness of Movant’s waiver. To the contrary, there are 6 many record indications that his collateral attack waiver was voluntary. The last such 7 indication is reflected in the sentencing transcript. After sentenced was pronounced, the 8 Court asked Movant directly whether he waived his right to appeal or collateral attack. 9 Movant answered, “Yes.” He did not answer, “no,” and he did not object or ask any 10 questions. As such, though he protests now that he did not understand the rights he was 11 relinquishing, the record clearly demonstrates that this claim has no merit. Therefore, the 12 Court enforces the collateral attack waiver. Ruiz-Diaz, 668 F. App’x at 290 (citing 13 United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009)). Accordingly, Movants’ 14 claims one and five, claims that do not assert ineffective assistance of counsel, are denied 15 as waived. 16 Movant asserts in claims two, three and four, that his attorney rendered ineffective 17 assistance. As claims of ineffective assistance are not precluded by plea waivers, they are 18 addressed next. In this case, the Court notes that the PSR calculated Movant’s Guideline 19 range as 168 to 210 months. The Government calculated the Guideline range as 108 to 20 135 months. Movant calculated the Guideline range as 87 to 108 months. All agreed that 21 Movant’s criminal history score was 0 and criminal history category was I. 22 This Court announced a tentative sentence of 135 months at the start of the 23 sentencing hearing, which was below the low end as calculated by the Probation 24 Department and within the range as calculated by the government. After considering the 25 arguments of defense counsel, Mr. Michael Berg, Esq., this Court imposed a sentence of 26 87 months, which is a sentence 48 months below its tentative sentence and at the low end 27 of the Guideline range as calculated by the defense. Against this backdrop, Movant 28 asserts three claims of ineffective assistance. 1 To prevail on an ineffective assistance of counsel claim, a defendant must show 2 that his attorney’s performance was unreasonable under the prevailing professional 3 standards and that the deficient performance prejudiced his defense. See Strickland v. 4 Washington, 466 U.S. 668, 694-95 (1984). There is a “strong presumption” that 5 counsel’s conduct is reasonable, Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 6 1995), and “[r]eview of counsel’s performance is highly deferential.” United States v. 7 Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986). To establish “prejudice” under 8 Strickland’s second prong, a petitioner must show a “reasonable probability that, but for 9 counsel’s errors, he would not have pleaded guilty and would have insisted on going to 10 trial.” Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). Movant has not established either 11 prong of the Strickland requirements. 12 Ground two of Movant’s argument is that his counsel advised him to enter the plea 13 agreement without explaining the full range of the consequences of the plea. This 14 general allegation lacks important specifics and lacks evidentiary support. It does appear 15 that Movant was unhappy with the government’s sentencing recommendation. 16 Apparently, Movant thought the government was going to recommend a 70-month 17 sentence based on cooperation. But the government was not substantially assisted by the 18 cooperation and left the recommendation at the low end of the Guideline calculation. 19 Movant offers no details about how his own attorney misinformed him about the plea. 20 His plea did benefit Movant in that as a result the government agreed to reduce his 21 Guideline calculation by three points for acceptance of responsibility and by an additional 22 two points for expeditious resolution. That resulted in an adjusted offense level of 29 23 with a low end of 87 months as compared to the low end as calculated by the PSR of 168 24 months with an offense level of 35. In other words, Movant gained significant benefits 25 from accepting the plea agreement. Had Movant gone to trial and lost he would likely 26 face a middle range sentence between 168 months and 210 months. Movant does not 27 allege that he had a viable defense to the charged crime. He does not allege that he 28 would have rejected the plea agreement and hazarded a trial had he been more fully 1 advised of the plea consequences. To sum up, there is little to overcome the presumption 2 that his attorney was effective. Hendricks, 70 F.3d at 1036. Even assuming, for the sake 3 of argument, that the performance prong was established, Movant has not viably 4 established the prejudice prong as required by Hill, 474 U.S. at 56-57. Ground two is 5 without merit. 6 Ground three puts forth the claim that Movant’s attorney was ineffective because 7 the amount of loss attributed to his crime was incorrectly calculated as too high and 8 counsel should have argued for a downward departure. The PSR reports that Mora was 9 responsible for laundering at least $3,800,000 but less than $5,000,000 in U.S. currency. 10 It reports that Movant crossed the border and in the United States and filed Cash 11 Transaction Reports totaling roughly $5,000,000. Under USSG 2B1.1(J) this amount 12 increased the offense level by +18. While Movant now argues that the calculation 13 included amounts that were laundered beyond the time of the conspiracy, this is a novel 14 legal argument that he well may have lost. Had his counsel advanced the argument, the 15 government may well have stuck to offense level calculation without offering a two-level 16 reduction for expeditious resolution. That, in turn, would have led to a offense level 31 17 and a Guideline range of 108 to 135, which is where the Court initially had tentatively 18 found 135 months to be sufficient, but not greater than necessary. The record reflects 19 that Movant’s counsel was faced with damaging facts and made the most out of the 20 undesirable legal situation by negotiating a very good plea agreement and making very 21 persuasive arguments benefitting Movant at sentencing. In short, Movant has established 22 neither ineffective performance nor prejudice for ground three. Hendricks, 70 F.3d at 23 1036; Hill, 474 U.S. at 56-57. 24 Ground four puts forth the claim that Movant’s attorney was ineffective because he 25 failed to argue that the Sentencing Guidelines overstated his culpability and role in the 26 offense. The argument is also belied by the record. Counsel for the defense did argue 27 that Movant was paid little for his part. Counsel did argue that Movant was both young 28 and a first-time offender. Counsel did argue that Movant voluntarily left the conspiracy 1 |/early. Counsel made an argument that Movant could be rehabilitated and that a 30-month 2 ||sentence would be sufficiently harsh. It is hard to see how Counsel could have argued for 3 ||a minor role for Movant who was admittedly a co-conspirator who arranged for and 4 || transported and laundered several million dollars in illicit drug money. In any event, the 5 || fact that counsel did not attempt to argue a minor role reduction establishes only 6 ||counsel’s good judgment. It does not suggest ineffective assistance. Moreover, Movant 7 makes no allegation that he was prejudiced. Ground four is also without merit. 8 || Hendricks, 70 F.3d at 1036; Hill, 474 U.S. at 56-57. 9 CONCLUSION 10 Movant’s claims one and five are denied due to his collateral attack waiver. 11 Grounds two through four are denied without hearing because they neither establish a 12 || debatable claim of ineffective performance nor resulting prejudice. Movant also seeks to 13 supplement his motion and includes the proposed supplement. See Doc. 63. The motion 14 supplement is granted. 15 The Motion to Vacate, Set Aside, or Correct Sentence is DENIED. 16 No Certificate of Appealability 17 A court may issue a certificate of appealability where the movant has made a 18 || “substantial showing of the denial of a constitutional right,” and reasonable jurists could 19 || debate whether the motion should have been resolved differently, or that the issues 20 || presented deserve encouragement to proceed further. See Miller-El vy. Cockrell, 537 U.S. 21 335 (2003). This Court finds that Movant has not made the necessary showing. A 22 || certificate of appealability is therefore DENIED. . 23 IS SO ORDERED. ( fyytoce 24 || DATED: May 5, 2020 5 HON. ROGER fr. BENITEZ United States District Court Judge 26 27 28