Reyes-Silva v. United States

• Court: District Court, S.D. California
• Decided: July 6, 2022
• Docket: 3:17-cv-00891
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVAN ALEJANDRO REYES-SILVA, Civ. Case No.: 3:17-cv-00891-JAH Crim. Case No.: 3:15-cr-01517-JAH 12 Petitioner, ORDER: 13 v. (1) DENYING MOTION TO 14 VACATE UNDER 28 U.S.C. § 2255 15 UNITED STATES OF AMERICA, (ECF No. 36);

16 Respondent. (2) GRANTING MOTION FOR 17 EXTENSION OF TIME TO FILE RESPONSE (ECF No. 38). 18

19 I. INTRODUCTION 20 On May 1, 2017, Petitioner Ivan Alejandro Reyes-Silva (“Petitioner”) filed a petition 21 to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (“Pet.”, ECF No. 22 36). Respondent United States of America (“Respondent”) filed a Response in Opposition 23 to Petitioner’s motion on June 30, 2017. (“Opp’n”, ECF No. 39). Petitioner failed to file 24 a Reply in support of his petition. For the reasons set forth below, the Court denies 25 Petitioner’s petition to vacate, set aside, or correct his sentence. 26 /// 27 /// 28 1 II. FACTUAL BACKGROUND 2 On January 22, 2016, Petitioner, with the advice and consent of counsel, signed a 3 plea agreement wherein he admitted to “knowingly and voluntarily reentering and 4 remaining in the United States” after having been previously deported, in violation of 8 5 U.S.C. § 1326. (“Plea Agreement”, ECF No. 25 at 3). On February 2, 2016, a change of 6 plea hearing was held before the Honorable Barbara Major, United States Magistrate 7 Judge, wherein Petitioner was found to have entered the plea knowingly and voluntarily, 8 not resulting from threats or force. (ECF Nos. 26, 27 at 4). Pursuant to the United States 9 Sentencing Guidelines (the “Sentencing Guidelines”), the United States calculated 10 Petitioner’s guideline range as 63-78 months, and Petitioner argued under § 5K2.0 11 (Combination of Circumstances) for downward departures based on his specific 12 circumstances. (Sentencing Memorandum at 3-4; Opp’n at 5-6). The Court granted 13 Petitioner’s request for a six-level departure, resulting in a guideline range of 22-41 14 months. Petitioner was sentenced by this Court to forty (40) months in custody, near the 15 high end of the range, followed by three years of supervised release.1 On May 1, 2017, 16 Petitioner, proceeding pro se, filed a motion to vacate, set aside, or correct his sentence 17 pursuant to 28 U.S.C. § 2255. 18 III. LEGAL STANDARD 19 A federal prisoner may request relief pursuant to 28 U.S.C. § 2255 to vacate, correct, 20 or set aside a sentence when the sentence was imposed in violation of the United States 21 Constitution or federal law; the court did not have jurisdiction to impose the sentence; the 22 sentence was in excess of the maximum allowed by law; or the sentence is otherwise 23 subject to collateral attack. 28 U.S.C. § 2255(a).2 A court may dismiss a § 2255 motion 24 25 1 Petitioner was released from Bureau of Prisons (“BOP”) custody on February 21, 2019. 26 See Inmate Locator & Record Availability, Federal Bureau of Prisons, 27 https://www.bop.gov/inmateloc/ (last visited June 8, 2022). 2 At the time of filing, Petitioner was in custody, satisfying the “in custody” requirement 28 1 when it “plainly appears” from the motion, attached exhibits, and the record of prior 2 proceedings that the petitioner is not entitled to relief under Rule 4(b) of the Rules 3 Governing § 2255 Proceedings. 4 IV. DISCUSSION 5 Petitioner raises two grounds for relief: first, that Amendment 8023 of the Sentencing 6 Guidelines should be applied retroactively, and second, he was denied effective assistance 7 of counsel. (Pet. at 6). A motion may be brought under § 2255(a) when the sentence is 8 otherwise subject to collateral attack, however, appeals and collateral attacks can be waived 9 by knowing and voluntary plea agreements. U.S. v. Navarro-Botello, 912 F.2d 318, 321-2 10 (9th Cir. 1990) (finding that waivers included in plea agreements entered knowingly and 11 voluntarily should be enforced as a matter of public policy); U.S. v. Bollinger, 940 F.2d 12 478, 479-480 (9th Cir. 1991) (defendant’s appeal of his sentence based on an incorrect 13 application of the Sentencing Guidelines was waived because his sentence did not exceed 14 the maximum outlined in the plea agreement he entered knowingly and voluntarily and was 15 therefore not an exception to the waiver). Therefore, while Petitioner has not waived his 16 ineffective assistance of counsel claim, his attack based on the application of Amendment 17 802 was waived by his plea agreement. 18 Respondent argues that the collateral attack based on retroactively applying 19 Amendment 802 to Petitioner’s sentence was waived in the plea agreement. (Opp’n at 8). 20

21 (because the §2255 motion was filed while petitioners were in custody, the motion was not 22 moot when they were released from custody); Carafas v. LaVallee, 391 U.S. 234, 239 23 (1968) (petitioner’s habeas corpus application was entitled to review on the merits despite petitioner being released while pending review). 24 3 Amendment 802 went into effect on November 1, 2016, and changed how the offense 25 level in § 2L1.2 of the Sentencing Guidelines is calculated. United States Sentencing Commission, Supplement to Appendix C, Amendment 802 (Nov. 2021). Amendment 802 26 eliminated the sixteen–level enhancement for prior felony crimes of violence and instead 27 provided for enhancements for felony convictions before and after deportation, according to the term of imprisonment imposed for the prior offense. 28 1 Respondent further argues that Amendment 802 is not applied retroactively per the 2 Sentencing Guidelines, and even if retroactive application was appropriate, it would result 3 in a higher sentence per the guideline range. (Opp’n at 13). As to Petitioner’s ineffective 4 assistance of counsel claim, Respondent asserts that defense counsel’s performance was 5 not unreasonable, and Petitioner cannot show that he was prejudiced. (Opp’n at 14). 6 A. Waiver 7 Petitioner’s plea agreement waives “any right to appeal or to collaterally attack the 8 conviction and any lawful restitution order”, with the exception of “a post-conviction 9 collateral attack based on a claim of ineffective assistance of counsel” or an appeal of a 10 sentence imposed by the court that is higher than the high end of the guideline range 11 proposed by the government. (Plea Agreement at 11). In this case, Petitioner’s collateral 12 attack based on ineffective assistance of counsel was not waived, but his collateral attack 13 based on retroactively applying Amendment 802 to his sentence was waived.4 United 14 States v. Johnson, 67 F.3d 200, 202 (9th Cir. 1995) (finding that an appeal based on changes 15 in the law can be waived through a voluntary waiver).5 16 In Johnson, the petitioner appealed his sentence, arguing that the sentencing court 17 erred in finding a newly passed law did not apply to his case and did not qualify him for a 18 lower sentence. Id. at 201. Although he had waived “any sentence imposed by the district 19 judge”, he argued that this appeal was not waived because the law was passed after he 20 signed his plea agreement, and he could not knowingly waive an appeal based on a law 21 that had not yet passed. Id. at 201-202. The Ninth Circuit found that appeals based on 22 23 4 Even if this collateral attack was not waived, Amendment 802 is not one of the 24 enumerated amendments in § 1B1.10(d) of the Federal Sentencing Guidelines that is 25 applied retroactively. 5 Petitioner does not explicitly allege that his waiver was not knowing or voluntary, but this 26 attack is waived by the plea agreement unless the waiver does not apply. These allegations 27 follow the reasoning of the arguments made in United States v. Johnson, where the petitioner argued that the change in law rendered his waiver involuntary. United States v. 28 1 later changes to the laws used by the court at sentencing were within the scope of the 2 waiver, and therefore his appeal had been knowingly and voluntarily waived. Id. at 202. 3 Like Johnson, Petitioner here argues that an amendment passed after his plea 4 agreement was signed should be applied to his sentence. However, unlike Johnson, where 5 the law was passed between the signing of the plea agreement and sentencing and the lower 6 court considered and rejected applying it, Petitioner argues that because Amendment 802 7 passed six months after his sentencing, it should be grounds for collateral attack. 8 Petitioner’s argument is unavailing, as the waiver found in the plea agreement encompasses 9 “any right to appeal or collaterally attack”, (Plea Agreement at 11), and future changes in 10 sentencing law are within the scope of the waiver. 11 Petitioner’s argument that Amendment 802 should have been applied while it was 12 pending is unpersuasive. This argument follows a line of reasoning rejected by the Ninth 13 Circuit in Johnson, where the Court found that the only applicable law was the law at the 14 time of sentencing, and because the change in law was not unforeseeable to the defendant, 15 an appeal based on that law was knowingly and voluntarily waived. Johnson, 67 F.3d at 16 202. Petitioner’s argument that a pending amendment should have been applied further 17 indicates that this change in law was foreseeable to him, mirroring Johnson and further 18 supporting that this attack was waived. 19 Accordingly, Petitioner’s argument for the retroactive application of Amendment 20 802 does not fall within either of the two exceptions to waive in his plea agreement. 21 Therefore, because his waiver was entered knowingly and voluntarily and because a 22 subsequent change in the Sentencing Guidelines was within the scope of the waiver, 23 Petitioner’s collateral attack based on the retroactive application of the amendment is 24 waived. 25 Further, a recalculation of Petitioner’s sentence under the 2016 version of § 2L1.2 26 of the Sentencing Guidelines would result in a higher guideline range. From the base 27 offense level of 8, Petitioner received a 16-level enhancement under § 2L1.2(b)(1)(B) and 28 §2L1.2(b)(1)(D) for his prior drug trafficking conviction and violation of 8 U.S.C. § 1326, 1 Reentry After Deportation. (“PSR” ECF No. 30 at 9). Therefore, under the 2015 version 2 of § 2L1.2, Petitioner’s base offense level was 24, and after applying downwards 3 departures for Acceptance of Responsibility and Fast Track, Petitioner’s offense level was 4 19, resulting in a guideline range of 63-76 months. (Sentencing Summary Chart at 2). 5 However, when applying Amendment 802, Petitioner’s prior convictions would 6 result in a 4-level enhancement under § 2L1.2(b)(1)(A) for a prior conviction in violation 7 of 8 U.S.C. § 1326, an 8-level enhancement under § 2L1.2(b)(2)(B) for a prior conviction 8 of Possession of Cocaine Base for Sale, and a 6-level enhancement under § 2L12(b)(3)(B) 9 for a prior conviction of Possession of a Controlled Substance, resulting in a total offense 10 level of 26. United States Sentencing Commission, Guidelines Manual, §2L1.2 (Nov. 11 2016); (PSR at 9-10). After applying the adjustments for Acceptance of Responsibility 12 and Fast Track, the resulting guideline range would be 77-96 months. (Id.) 13 B. Ineffective Assistance of Counsel 14 Petitioner argues that at the time of his sentencing, his attorney did not raise 15 arguments about undue hardship and cultural assimilation. (Pet. at 6-7). He argues that 16 had these arguments been made, he would have received a shorter sentence and that this 17 therefore constitutes ineffective assistance of counsel that would entitle him to have his 18 sentence vacated, set aside, or corrected. (Pet. at 6-7). To make a claim of ineffective 19 assistance of counsel, Petitioner must show that counsel’s performance did not meet the 20 standard of “reasonably effective performance”, and that this performance prejudiced 21 Petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). Showing an effect on the 22 proceedings is not enough, and Petitioner must show that there is a reasonable probability 23 that the outcome would be different but for counsel’s performance. Id. at 694. 24 i. Reasonably Effective Performance 25 Petitioner argues that because counsel did not raise arguments of undue hardship and 26 cultural assimilation in sentencing, counsel’s performance fell below the reasonably 27 effective standard. However, Petitioner’s counsel did raise the argument of undue hardship 28 in the sentencing memorandum, drawing attention to the family circumstances that 1 motivated Petitioner’s entry into the United States. (“Sentencing Memorandum”, ECF No. 2 33 at 3, 4). Specifically, the Sentencing Memorandum stated: “He had no plans whatsoever 3 to return to the United States…Then he got word that his 15-year-old son had run away 4 from home and had been missing for months.” (Id.) Further, “his motivation was never to 5 stay here, but only to find his son.” (Id.) 6 As Petitioner asserts, counsel did not raise cultural assimilation in arguing for a 7 downward departure. However, in the sentencing memorandum, counsel argued for a six- 8 level downward departure based in upon Section 5K2.0 (Combination of Circumstances) 9 under the Guidelines. In addition to asserting that Petitioner returned to the United States 10 after deportation only to fulfill his duties as a father to locate his run-away and missing 15- 11 year-old son, Counsel argued that his admitted criminal history was associated with his 12 prior drug addiction. (Sentencing Memorandum at 3). He also argued Petitioner had been 13 “clean and sober for a number of years with the help of Narcotics Anonymous and had 14 helped others “overcome their addiction, in and out of custody”. (Id.) Counsel also argued 15 Petitioner “was living a productive life in Mexico, working, and contributing to his 16 community without further plans of coming to the United States. Counsel further argued 17 that “upon his release from custody, Petitioner “plan[ned] on again permanently locating 18 to Tijuana so that his family will be able to visit him, and he can help to provide the 19 guidance his family needs.” (Sentencing Memorandum at 4). Counsel also emphasized the 20 staleness of a number of his prior convictions. (Id.) The Court notes that a stable living 21 environment in Mexico was a significant factor in considering whether a downward 22 departure was warranted, as it was indicative of the fact that Petitioner would not likely re- 23 offend by illegally re-entering the United States. 24 Additionally, a review of Petitioner’s Presentence Report reveals that an argument 25 concerning cultural assimilation would not have been to Petitioner’s benefit. At the time 26 of sentencing. Petitioner had obtained three juvenile adjudications involving burglary and 27 driving a stolen vehicle while under the influence. In an eleven-year period thereafter, 28 Petitioner accumulated eight felony convictions, including five convictions involving 1 possessing or selling controlled substances and one conviction for inflicting corporal injury 2 upon a spouse involving punching his pregnant wife about her head and body and kicking 3 her in the stomach. In addition, he received four misdemeanor convictions. Also, as a result 4 of these convictions, Petitioner was deported five times. This criminal/immigration history 5 does not reflect a positive cultural assimilation, counseling against an additional departure 6 for cultural assimilation. 7 There is a strong presumption that counsel has provided adequate assistance and 8 exercised “reasonable professional judgment” in making strategic decisions. Strickland, 9 466 U.S. at 690. The Court looks to all the circumstances in determining whether the acts 10 or omissions alleged were outside of “the wide range of professionally competent 11 assistance.” Id. Here, based upon counsel’s advocacy, the Court granted Petitioner’s 12 request for a six-level downward departure resulting in a guideline range of 33-41 months 13 in custody. And after factoring into the equation Petitioner’s criminal history, this Court 14 sentenced Petitioner to near the high end of the range – 40 months in custody. 15 Petitioner has not and cannot overcome the presumption of counsel exercising 16 reasonable professional judgment. 17 ii. Prejudice 18 Petitioner argues that the failure to raise the aforementioned arguments at sentencing 19 prejudiced him, as his sentence would have been lower had these arguments been made. 20 (Pet. at 6, 8).6 To show prejudice, Petitioner must show that there is a reasonable 21 probability that the outcome of his case would be different had the cultural assimilation 22 23 24 6 Petitioner also argues that the failure to argue for the application of the pending 25 Amendment 802 to the Sentencing Guidelines was prejudicial. (Pet. at 6, 8). However, because the amendment was not yet law, failure to argue for its application does not 26 constitute ineffective assistance of counsel. United States v. Juliano, 12 F.4th 937, 939-41 27 (9th Cir. 2021) (defense counsel not arguing for the application of the proposed First Step Act in sentencing was neither unreasonable nor prejudicial and therefore not ineffective 28 1 ||argument been made. Strickland, 466 U.S. at 694. Petitioner argues that the amendment 2 ||that provides grounds for a downward departure should have been applied. Note 8 of § 3 ||2L1.2 of the Sentencing Guidelines provides that cultural assimilation can be grounds for 4 || granting a downward departure, but it further provides that two of the factors to be 5 || considered in applying this provision are extent of familial and cultural ties outside of the 6 || United States as well as the severity of the individual’s criminal history. United States 7 Sentencing Commission, Sentencing Guidelines, § 2L1.2 (Nov. 2016). As stated in his 8 ||sentencing memorandum, Petitioner argued that the depth of his ties in Mexico would 9 || disincentivize future returns to the United States. Moreover, his criminal history was 10 |/calculated to be in Criminal History Category VI. (Sentencing Memorandum at 4). To 11 end, it is unlikely that the cultural assimilation provision would be applied based on 12 || the totality of facts presented, and a difference in outcome was not reasonably probable. 13 As such, in light of the foregoing and because Petitioner did receive a downward 14 || departure that placed his sentence 23 months below the low end of the range recommended 15 || by the United States, Petitioner has failed to establish that the outcome of his case would 16 || have been different. 17 V. CONCLUSION 18 For the foregoing reasons, IT IS HEREBY ORDERED 19 (1) Petitioner’s Motion to Vacate under 28 U.S.C. § 2255 is DENIED; and, 20 (2) Respondent’s Motion to Extend Time is GRANTED. 21 IT IS SO ORDERED. 22 3 DATED: — July 6, 2022 24 VU 2° JOAN A. HOUSTON 26 ITED STATES DISTRICT JUDGE 27 28