Snowden v. United States

• Court: District Court, D. Nevada
• Decided: March 2, 2020
• Docket: 2:19-cv-00552
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9

10 UNITED STATES OF AMERICA, Case Nos. 2:18-CR-18-RCJ-GWF 11 Plaintiff, 2:19-CV-552-RCJ 12 vs. ORDER 13 OREN SNOWDEN, 14 Defendant. 15 16 After pleading guilty, Defendant collaterally attacks his conviction and sentence, claiming 17 ineffective assistance of counsel among other arguments. However, Defendant’s contentions 18 cannot overcome the strong presumption of effective assistance, and he waived his other 19 arguments. Thus, the Court denies his motion.

20 FACTUAL BACKGROUND 21 After serving a sentence for a felony conviction under NRS 453.337 for drug trafficking, 22 Defendant sold cocaine to an undercover police officer. (ECF No. 37 at 4.) With this information, 23 police officers obtained a warrant to search Defendant’s residence, which uncovered six firearms, 1 grams of MDMA tablets, and drug paraphernalia. (PSR at 6.) According to the Presentence Report 2 (PSR), the “firearms were located together with drugs at the residence.” (PSR at 8.) 3 The United States initiated a criminal case against Defendant by complaint based on this 4 conduct. (ECF No. 1.) The grand jury returned an indictment for four counts: three counts of 5 possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) 6 and (b)(1)(C) and one count of felon in possession of a firearm in violation of 18 U.S.C. §§ 7 922(g)(1) and 924(a)(2). (ECF No. 20.) 8 Defendant pleaded guilty to one count of possession with intent to distribute a controlled 9 substance and the count of felon in possession of a firearm. (ECF No. 37.) For sentencing,

10 Defendant admitted that his base offense level should be twenty for the count of felon in possession 11 of a firearm because of his prior conviction under NRS 453.337. (Id. at 5.) Defendant further 12 agreed that some sentencing enhancements applied, including an enhancement under U.S.S.G. 13 § 2K2.1(b)(6)(B), since he used a firearm in connection with his possession with intent to distribute 14 a controlled substance. (Id. at 6.) Lastly, Defendant agreed not to challenge his conviction by 15 appeal or collateral attack except for claims of ineffective assistance of counsel. (Id. at 10.) 16 In exchange for his plea, the Government dismissed the other felonies from the indictment 17 and agreed not to bring other potential charges based on Defendant’s conduct. (Id. at 3.) 18 Additionally, the Government recommended a two-level downward adjustment to the Court. (Id. 19 at 6.)

20 Presently, Defendant collaterally attacks his sentence under 28 U.S.C. § 2255 seeking to 21 “vacate set aside and correct his sentence, grant his evidentiary hearing, and provide him assistance 22 of counsel.” (ECF No. 44.) In addition to other arguments, he claims that his counsel, Ms. Gettel, 23 was constitutionally ineffective. Lastly, he requests that the Court issue a certificate of 1 LEGAL STANDARD 2 A prisoner in custody “may move the court which imposed the sentence to vacate, set aside 3 or correct the sentence” where the sentence is unconstitutional or unlawful, the court lacked 4 “jurisdiction to impose such sentence,” “the sentence was in excess of the maximum authorized 5 by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). This remedy is available 6 only where the error is jurisdictional, constitutional, contains “a fundamental defect which 7 inherently results in a complete miscarriage of justice,” or includes “an omission inconsistent with 8 the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962). A 9 petitioner must prove, by a preponderance of the evidence, any grounds for vacating or modifying

10 a sentence. Johnson v. Zerbst, 304 U.S. 458, 468–69 (1938). 11 A court should deny the motion if the case record “conclusively show[s] that the prisoner 12 is entitled to no relief.” § 2255(b). Otherwise, a court should grant a hearing to make the necessary 13 findings of fact and conclusions of law to rule on the motion. Id. 14 On dismissal, a court should determine whether to issue a certificate of appealability. A 15 certificate is appropriate when the applicant has “made a substantial showing of the denial of a 16 constitutional right.” 28 U.S.C. § 2253(c)(2). This requires that the petitioner show that reasonable 17 jurists could find claims “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 18 ANALYSIS 19 Defendant challenges his conviction and sentence under Section 2255 claiming: (1)

20 ineffective assistance of counsel; (2) the Court miscalculated his guidelines; and (3) his conviction 21 failed to comply with Rehaif v. United States, 139 S. Ct. 2191 (2019). Defendant has not shown 22 that his counsel was constitutionally deficient, and he waived his other claims under his plea 23 agreement. For these reasons, the Court denies the petition. 1 I. Defendant’s Counsel Performed Reasonably 2 Defendant claims that Ms. Gettel’s assistance was ineffective for five reasons: First, she 3 did not challenge the sentencing enhancement under U.S.S.G. § 2K2.1. Second, she accepted that 4 Defendant’s prior conviction under NRS 453.337 increased the base offense level. Third, she did 5 not move to exclude evidence obtained in violation of the Fourth Amendment. Fourth, she did not 6 inform the Court that he was never in prison for longer than one year. Fifth, she did not request a 7 pre-plea report. The Court will address each claim in turn. 8 To prove a claim of ineffective assistance of counsel, a petitioner must show that his 9 counsel’s assistance was deficient, and this deficiency prejudiced his case. Strickland v.

10 Washington, 466 U.S. 668, 687 (1984). Counsel is deficient when his “acts or omissions were 11 outside the wide range of professionally competent assistance” and there is a strong presumption 12 that a counsel’s performance is adequate. Id. at 690–91. For prejudice, a petitioner must prove a 13 reasonable probability that the outcome would have been different. Id. at 694. The touchstone for 14 prejudice in collateral attacks of plea agreements is whether the defendant would have insisted on 15 going to trial but for his counsel’s ineffective assistance. Hill v. Lockhart, 474 U.S. 52, 58 (1985). 16 a. Failure to Challenge the Sentencing Enhancement Under U.S.S.G. § 2K2.1 17 Defendant argues that the facts do not prove that he used a firearm in connection with a 18 drug-related felony, so the sentencing enhancement under U.S.S.G. § 2K2.1 was inappropriate. He 19 argues that Ms. Gettel did not challenge the application of this enhancement rendering her

20 assistance constitutionally defective. However, the facts show that the enhancement was likely 21 proper and waiving this challenge for the benefits of the plea agreement was reasonable. 22 In order for this enhancement to apply, the Government must establish a nexus between 23 the firearms and drugs to show that a defendant intended to use the firearms in furtherance of a 1 requisite nexus, a court should look to the “proximity, accessibility, and strategic location of the 2 firearms in relation to the locus of drug activities.” United States v. Rios, 449 F.3d 1009, 1012 (9th 3 Cir. 2006) (citing Krouse, 370 F.3d at 968). 4 Here, according to the PSR, police found six firearms, ammunition, 1,811 grams of 5 marijuana, 37 grams of methamphetamine, 15 grams of cocaine, 12 grams of MDMA tablets, and 6 drug paraphernalia in his dwelling. (PSR at 6.) The PSR specifically notes that the “firearms were 7 located together with drugs at the residence.” (PSR at 8.) At his sentencing hearing, Defendant 8 affirmed that he had read the PSR and did not object. (ECF No. 51 at 3.) Presently, he does not 9 claim that these facts are inaccurate, so the Court relies on them. These admissions provide

10 powerful support that the enhancement was appropriate. 11 This case is analogous to United States v. Mosley, 465 F.3d 412, 418 (9th Cir. 2006). There 12 the Ninth Circuit upheld a finding that a defendant used firearms in connection with a drug 13 trafficking crime when police found drugs and drug proceeds stored at the defendant’s apartment 14 with guns strategically located on the premises. Here, Defendant stored his guns together with his 15 drugs and ammunition at his apartment just like in Mosley. Accordingly, even if Defendant had 16 challenged this enhancement, the challenge would not likely prevail. 17 Furthermore, waiving the challenge to the enhancement was reasonable because the 18 Government provided ample consideration in exchange. The Government dismissed two other 19 felonies from the indictment, requested a two-level downward adjustment, and agreed not to bring

20 other charges based on the conduct including a potential felony charge under 18 U.S.C. § 924(c), 21 which carries a mandatory minimum sentence of five years consecutive to any other imprisonment 22 this Court imposed. Since the facts support the enhancement and Defendant received valuable 23 consideration in exchange for waiving his challenge to it, Ms. Gettel’s recommendation to accept 1 b. Failure to Challenge Prior Conviction Under NRS 453.337 2 Next, Defendant claims that Ms. Gettel should have challenged whether his prior felony 3 conviction under NRS 453.337 increased his base offense level under the sentencing guidelines 4 from 14 to 20 under U.S.S.G. § 2K2.1(a). Defendant does not challenge that Nevada convicted 5 him of a felony for violating the statute but argues that this conviction cannot qualify as the generic 6 felony under the guidelines, because the statute is overbroad and indivisible. If true, then his prior 7 conviction might not properly increase his base offense level. 8 The caselaw on this issue is currently in flux. At the time that Defendant pleaded guilty, 9 the Ninth Circuit was considering the issue in an unrelated case and issued its ruling three months

10 later. There the circuit held that the statute was overbroad and presented certified questions to the 11 Nevada Supreme Court to determine whether the statute is divisible. United States v. Figueroa- 12 Beltran, 892 F.3d 997, 1004 (9th Cir. 2018). Since that time, this Court has ruled that a subsequent 13 case from the Nevada Supreme Court has shown NRS 453.337 is divisible. Order, United States 14 v. Cesar Angulo-Cruz, 2:18-cr-00316-RCJ-EJY, ECF No. 35. However, the Nevada Supreme 15 Court has not yet ruled on the issue and other cases from this District have disagreed. See, e.g., 16 Order, United States v. Ismael Aquero-Cadenas, 3:17-cr-00088-MMD-WGC, ECF No. 31. 17 Defendant contends that not challenging the application of his prior felony conviction 18 constitutes deficiency. A petitioner might demonstrate deficiency when counsel advises a 19 defendant to plead guilty to a crime in conflict with established law. United States v. Kelly, 62 F.3d

20 1215, 1217 (9th Cir. 1995). However, a petitioner cannot overcome the strong presumption of 21 effective assistance where the law is less clear and where the government dismisses other serious 22 charges. United States v. Baramdyka, 95 F.3d 840, 846 (9th Cir. 1996). 23 Here, the six-point increase to the base offense level does not conflict with clearly 1 Government provided valuable consideration by agreeing to not bring any other charges based on 2 the conduct and seeking the two-level downward adjustment. Consequently, the record shows that 3 Defendant has not overcome the presumption that Ms. Gettel performed effectively. 4 c. Failure to Move to Exclude Evidence 5 Defendant also asserts that Ms. Gettel was deficient for not moving to exclude evidence 6 purportedly obtained in violation of the Fourth Amendment. Specifically, Defendant concludes 7 that Ms. Gettel should have moved to exclude the firearms found in his apartment, because neither 8 the search warrant nor the affidavit in support of its application mentioned firearms. However, 9 when police find illicit material while executing a valid search warrant the Fourth Amendment

10 does not necessarily require its suppression. 11 The evidence of the firearms that the officers uncovered while executing the search warrant 12 of Defendant’s residence is valid under the plain view doctrine. Under the “plain-view” doctrine, 13 evidence of a crime may be seized where “the officer did not violate the Fourth Amendment in 14 arriving at the place from which the evidence could be plainly viewed,” “the item [was] in plain 15 view,” and “its incriminating character [was] ‘immediately apparent.’” Horton v. California, 496 16 U.S. 128, 136–37 (1990) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971)). 17 Here, officers were legally in his residence searching areas and containers that could have 18 drugs because of the search warrant. Next, officers found the firearms together with drugs. Last, 19 with Defendant’s felony status, the illicit nature of the firearms was immediately apparent.

20 Defendant does not dispute any of these facts. Thus, if Ms. Gettel moved to suppress the evidence 21 with these facts, she would have failed. Failure to make a meritless argument is not ineffective. 22 d. Failure to Inform the Court of Prior Prison Sentences 23 Defendant appears to believe that if he did not serve a prison sentence of greater than one 1 to advise the Court of his prior prison sentences was ineffective assistance. However, Defendant 2 misunderstands the definition of felony under the statute. A felony is a crime that is punishable by 3 greater than one year regardless of whether a court actually imposes such a sentence. Id. Whether 4 Defendant served a prison sentence greater than one year has no bearing on his conviction under 5 18 U.S.C. § 922(g)(1), so this claim is meritless. 6 e. Failure to Request a Pre-Plea Report 7 Lastly, Defendant argues that Ms. Gettel was ineffective for failing to request a pre-plea 8 report. Pre-plea reports are rare and provide a criminal history before entering into a plea 9 agreement. See, e.g., United States v. Madrigal-Diaz, No. CR 07-0309 WHA, 2011 WL 13311550,

10 at *7 (N.D. Cal. May 19, 2011). Defendant does not show that if he had a pre-plea report that he 11 would not have pleaded guilty, so this cannot constitute ineffective assistance of counsel. In sum, 12 the Court denies all bases for ineffective assistance of counsel, and a hearing is unnecessary 13 because the record conclusively shows that these contentions do not merit relief. See Shah v. 14 United States, 878 F.2d 1156, 1160 (9th Cir. 1989) (affirming district court’s denial of evidentiary 15 hearing when evidence in the record showed that the petitioner’s case would fail). 16 II. Defendant Waived All Other Challenges 17 Defendant raises additional bases for granting him relief, but he waived these arguments. 18 (ECF No. 37 at 10 (“The defendant also knowingly and expressly waives all collateral challenges, 19 including any claims under 28 U.S.C. § 2255, to his conviction, sentence, and the procedure by

20 which the Court adjudicated guilt and imposed sentence, except non-waivable claims of ineffective 21 assistance of counsel.”).) These waivers are valid so long as a defendant enters them voluntarily 22 and knowingly. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000). A defendant can waive 23 almost all challenges to a conviction including retroactive changes to substantive law in his favor. 1 Defendant argues that his plea was involuntary because his counsel was ineffective, (ECF 2 No. 44 at 15–16), and because he entered the agreement under duress, (Id. at 6). First, the Court 3 has already found counsel to be effective, so the Court denies Defendant’s first argument. Second, 4 he claims duress based on his fear that he would get a harsher sentence if he did not sign the plea 5 agreement. This is not sufficient duress—if it was sufficient, then every plea agreement would be 6 invalid. See Bordenkircher v. Hayes, 434 U.S. 357, 363–64 (1978). Additionally, in the plea 7 agreement Defendant averred that he entered into the plea agreement knowingly and voluntarily. 8 (ECF No. 37 at 2, 10). Furthermore, at the change-of-plea hearing, Defendant affirmed the 9 Government’s summary of the plea agreement. (ECF No. 50 at 20:5–7); see Blackledge v. Allison,

10 431 U.S. 63, 75 (1977) (“Solemn declarations in open court carry a strong presumption of verity.”). 11 The summary included waiving his rights to collaterally attack his conviction except for claims of 12 ineffective assistance of counsel. (Id. at 19:5–9.) 13 In total, the record shows that Defendant knowingly and voluntarily entered into the plea 14 agreement including his waiver of rights to collaterally attack his sentence. Hence, the Court denies 15 the remainder of his challenges to his conviction based on his waiver, and a hearing is also 16 unnecessary for this issue. 17 III. Certificate of Appealability 18 Since the Court denies the petition, it turns to Defendant’s request for a certificate of 19 appealability. A district court should issue a certificate of appealability if the petitioner makes a

20 “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this 21 burden, the petitioner must show that reasonable jurists would find that the claims are “debatable 22 or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 23 In the petition, Defendant made two requests that potentially had merit: ineffective 1 || for failing to challenge the enhancement under U.S.S.G. § 2K2.1. As discussed above, challenges 2 || to these enhancements to Defendant’s sentence could have theoretically succeeded but would have 3 || likely failed. However, in consideration for waiving these challenges, the Government dismissed 4 || two other felony charges from the indictment, agreed not to bring other charges based on 5 || Defendant’s conduct (including a potential charge that carried a mandatory five-year consecutive 6 || sentence), and agreed to request a two-point downward adjustment to Defendant’s sentence. No 7 || reasonable jurist would find these allegations of ineffective assistance of counsel to overcome the 8 || strong presumption of effective assistance. Furthermore, the rest of Defendant’s claims are 9 || meritless. Therefore, the Court declines to issue a certificate of appealability. 10 CONCLUSION 11 IT IS HEREBY ORDERED that Defendant’s Motion to Vacate, Set Aside, or Correct 12 |} Sentence (ECF No. 44) is DENIED. 13 IT IS FURTHER ORDERED that no certificate of appealability shall issue. 14 IT IS FURTHER ORDERED that the Clerk shall ENTER a separate and final judgment 15 || under Federal Rule of Civil Procedure 58(a) as directed by Kingsbury v. United States, 900 F.3d 16 || 1147 (9th Cir. 2018). 17 IT IS SO ORDERED. Dated March 2, 2020. 18 19 20 21 . 22 ROBERT C. JONES United St#tes District Judge 23 24