Serrano-Menoscal v. United States

• Court: District Court, S.D. California
• Decided: May 8, 2020
• Docket: 3:18-cv-02370
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 CARLOS EDUARDO SERRANO- Case No.: 18-cv-2370-BEN MENOSCAL, 17-cr-1584(3)-BEN 8

Movant, 9 ORDER v. 10 UNITED STATES OF AMERICA, 11 Respondent. 12

13 Movant has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 14 28 U.S.C. § 2255. The motion is filed timely and the motion is denied. 15 BACKGROUND 16 Movant pleaded guilty pursuant to a plea agreement and was convicted of 17 conspiracy to distribute cocaine intended for unlawful importation in violation of 21 18 U.S.C. § 959, 960 and 963. Movant and his two co-defendants were interdicted while 19 transporting 578 kilograms of cocaine on a 32-foot panga-style vessel in the Eastern 20 Pacific Ocean. According to the PSR, Movant was the pilot of the boat at the time of 21 arrest and refused to slow the boat when ordered by U.S. Coast Guard officers. Instead, 22 Movant increased the speed of the boat and attempted to elude the officers while co- 23 conspirators threw bales of cocaine overboard, requiring officers to fire live ordinance to 24 render the engines inoperable. All three co-conspirators were arrested, charged, and 25 pleaded guilty. Movant was sentenced to 108 months. One co-conspirator received a 26 shorter sentence and one received a longer sentence. Only Movant seeks to collaterally 27 attack his sentence. Movant now asserts claims of ineffective assistance of counsel. 28 1 LEGAL STANDARD 2 Under section 2255, a movant is entitled to relief if the sentence: (1) was imposed 3 in violation of the Constitution or the laws of the United States; (2) was given by a court 4 without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by 5 law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. 6 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed to 7 state a claim, or has “no more than conclusory allegations, unsupported by facts and 8 refuted by the record,” a district court may deny a § 2255 motion without an evidentiary 9 hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986). That is the case here. 10 DISCUSSION 11 To prevail on an ineffective assistance of counsel claim, a defendant must show 12 that his attorney’s performance was unreasonable under the prevailing professional 13 standards and that the deficient performance prejudiced his defense. See Strickland v. 14 Washington, 466 U.S. 668, 694-95 (1984). There is a “strong presumption” that 15 counsel’s conduct is reasonable, Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 16 1995), and “[r]eview of counsel’s performance is highly deferential.” United States v. 17 Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986). To establish “prejudice” under 18 Strickland’s second prong, a petitioner must show a “reasonable probability that, but for 19 counsel’s errors, he would not have pleaded guilty and would have insisted on going to 20 trial.” Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). Movant has not established either 21 prong of the Strickland requirements. 22 In this case, the Court notes that without the plea agreement, Movant faced a 23 minimum mandatory 10-year sentence, if convicted. Now, he claims that his attorney 24 promised him a 60-month sentence and that this was bad advice constituting ineffective 25 assistance of counsel. Importantly, Movant does not claim that he would have declined a 26 plea agreement and gone to trial, had he better understood his sentencing exposure. 27 Movant does not claim that he was actually innocent or that he had a viable defense. The 28 facts against him were strong and the government’s case was solid. 1 The Court notes that the PSR calculated Movant’s Guideline range to be 210 to 2 260 months with a minimum mandatory term of 120 months. Because Movant agreed to 3 plead guilty, he benefited from a very low 84-month sentencing recommendation from 4 the government. Movant also enjoyed the possibility of qualifying for safety valve relief 5 – an opportunity Movant welcomed. As a result of entering the plea agreement, the 6 Government calculated the Guideline range with a two-level reduction of safety valve 7 and a three-level reduction for acceptance of responsibility. The government’s resulting 8 Guideline range was 135 to 168 months. Movant likewise calculated his Guideline range 9 as 135 to 168 months. Because of the safety valve, it also became possible for Movant to 10 receive a sentence below the 10-year minimum mandatory sentence. As mentioned 11 above, ultimately, this Court imposed a sentence of 108 months. The sentence was 27 12 months below the low end of the Guideline range of 135 to 168 as agreed to by the 13 Movant and the government and far below the Guideline range of 210 to 262 months set 14 out in the PSR. 15 Moreover, Movant’s assertion that his attorney promised a 60-month sentence is 16 belied by the record. The Plea Agreement is bereft of such language and warned the 17 Movant that the sentence was ultimately up to this Court. During the plea colloquy, the 18 Magistrate Judge explicitly informed Movant that he faced a minimum mandatory 19 sentence of 10 years. Yet, Movant did not indicate surprise. Movant did not ask for 20 clarification. Movant did not object that it was twice as long as his attorney had advised. 21 Likewise, at the sentencing hearing, when Movant was invited to allocate, he said nothing 22 about misunderstanding the plea deal. After sentence was imposed, This Court directly 23 asked Movant whether he agreed to waive appeal and collateral attack. He said nothing 24 about the sentence just imposed being different than what his attorney had promised or 25 that the government had promised. There is no declaration from his attorney that she had 26 promised any length of sentence. There are no attorney file notes or declarations from 27 others that might substantiate Movant’s claim. 28 1 To sum up, Movant received great benefit from entering the plea agreement that 2 ||his attorney had obtained from the government. There is nothing to overcome the 3 || presumption that his attorney’s performance was effective. Hendricks, 70 F.3d at 1036. 4 ||Even assuming, for the sake of argument, that the performance prong was established, 5 ||Movant has not claimed or proven the prejudice prong as required by Hill, 474 □□□□ at 6 ||56-57. Both prongs must be satisfied for relief. Neither prong has been established. 7 CONCLUSION 8 Movant’s claims are denied without hearing because they neither establish a 9 || debatable claim of ineffective performance nor resulting prejudice. 10 The Motion to Vacate, Set Aside, or Correct Sentence is DENIED. 11 No Certificate of Appealability 12 A court may issue a certificate of appealability where the movant has made a 13 || “substantial showing of the denial of a constitutional right,” and reasonable jurists could 14 || debate whether the motion should have been resolved differently, or that the issues 15 || presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 16 335 (2003). This Court finds that Movant has not made the necessary showing. A 17 || certificate of appealability is therefore DENIED. . 18 || IT IS SO ORDERED. lyin, 19 || DATED: May 8, 2020 HON. ROGER fr. BENITEZ United States District Court Judge 21 22 23 24 25 26 27 28