United States v. Leonard Walter

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2021
• Docket: 19-16056
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 18 2021

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 19-16056 Plaintiff-Appellee, D.C. Nos. 2:19-cv-00446-JAM-CKD 2:14-cr-00210-JAM-CKD-2 v. LEONARD WALTER, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding Argued and Submitted May 10, 2021 San Francisco, California

Before: WALLACE and COLLINS, Circuit Judges, and RAKOFF,** District Judge.

Defendant-Appellant Leonard Walter appeals from the district court’s denial

of his motion for relief under 28 U.S.C. § 2255. We have jurisdiction under 28

U.S.C. § 1291 and § 2253(a), (c)(1)(B), and we affirm.

In February 2019, Walter was sentenced to the 10-year mandatory minimum

sentence based on his earlier plea of guilty to a single count of conspiring to

possess, with intent to distribute, at least 50 grams of methamphetamine in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. violation of 21 U.S.C. §§ 841(a)(1), 846. See id. § 841(b)(1)(A)(viii) (providing

for 10-year mandatory minimum sentence). He alleges ineffective assistance of

counsel at sentencing due to his attorney’s failure to request so-called “safety-

valve” relief under 18 U.S.C. § 3553(f), which allows a district court to impose a

sentence below the statutory mandatory minimum if certain conditions are met.

Although Walter’s criminal history points had rendered him categorically

ineligible for safety-valve relief at the time of his guilty plea, the First Step Act—

enacted in December 2018, shortly before Walter’s sentencing—amended

§ 3553(f) in a way that eliminated that particular obstacle in Walter’s case.

Walter’s attorney, however, failed to recognize this change prior to his sentencing

and did not seek relief from the mandatory minimum at sentencing under the

amended version of § 3553(f).

In March 2019, Walter filed this § 2255 motion alleging that his attorney

had been ineffective in failing to seek safety-valve relief under the amended

version of § 3553(f). The district court referred the motion to a magistrate judge,

who recommended denying the motion. The district court denied Walter’s request

for an evidentiary hearing and adopted the magistrate judge’s findings and

recommendation. Walter timely appealed, and we issued a certificate of

appealability. We review a district court’s denial of § 2255 relief de novo, see

United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016), and its decision not to

2 hold an evidentiary hearing for abuse of discretion, see United States v. Leonti, 326

F.3d 1111, 1116 (9th Cir. 2003).

Even assuming arguendo that Walter’s counsel performed deficiently in

failing to recognize the significance of the First Step Act’s amendment of

§ 3553(f), we conclude that Walter failed to make a sufficient showing that he was

prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The

First Step Act left intact § 3553(f)’s requirement that, to qualify for safety-valve

relief, “not later than the time of the sentencing hearing, the defendant [must]

truthfully provide[] to the Government all information and evidence the defendant

has concerning the offense or offenses that were part of the same course of conduct

or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5). The district court

correctly concluded that Walter failed to make a sufficient showing that, but for his

counsel’s error, he would have satisfied this requirement.

As an initial matter, the § 2255 motion and accompanying materials address

this crucial point in wholly conclusory terms that are devoid of supporting factual

detail. See Rule 2(b)(2), § 2255 Rules (motion must “state the facts supporting

each ground”); cf. Rule 4, § 2254 Rules, advis. comm. note (1976) (stating that, for

collateral attacks, “‘notice’ pleading is not sufficient, for the petition is expected to

state facts that point to a ‘real possibility of constitutional error’”). Although

Walter verified the motion under penalty of perjury, the motion simply stated that

3 “he was and remains willing to satisfy” this safety-valve requirement. Neither his

motion nor its supporting materials set forth any sufficient facts bolstering this

conclusory assertion. As the magistrate judge noted, Walter provided no

supporting declaration of his own. Walter’s attorney provided a declaration stating

that when she discussed the safety valve with Walter prior to sentencing, Walter

expressed a willingness “to participate in a safety valve debriefing.” Willingness

to sit for a debriefing, however, does not establish, without more, that Walter

would have “truthfully provided to the Government all information and evidence

the defendant has concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5)

(emphasis added).

This omission was especially significant because, as the magistrate judge

observed, the record in this case indicated that Walter “was in fact not willing to

‘tell all he knew’ prior to sentencing.” Specifically, at Walter’s sentencing, the

Government noted that Walter had declined to cooperate with the Government,

which would have allowed him to receive a below-mandatory-minimum sentence

under an entirely separate provision of law. See 18 U.S.C. § 3553(e). As the

Government explained, “given some of the atmospherics and his affiliation with a

certain [criminal] group that’s identified” throughout the presentence report,

Walter “chose to maintain his cred, and that’s his choice.” Defense counsel

4 described Walter as having “chose[n] the path that he chose more out of safety

concerns for himself and his family.”

Walter contends that, unlike cooperation, which would have entailed

potentially testifying in court against others involved in the organization, a safety-

valve debriefing only requires disclosing to prosecutors all of the information that

he knows about the relevant criminal conduct. See United States v. Shrestha, 86

F.3d 935, 939 (9th Cir. 1996) (describing § 3553(f)(5) as a “tell all you can tell”

requirement that requires disclosing “all information at [the defendant’s] disposal

which is relevant to the offense, whether or not it is relevant or useful to the

government’s investigation”). Walter’s previous hesitation, however, underscores

the need for him to support his § 2555 motion with sufficient facts to show that he

would have made the thorough disclosures required by § 3553(f) prior to his

sentencing. He failed to do so.1

Because the record confirms that Walter failed to demonstrate that his

counsel’s error prejudiced him at sentencing, the district court properly denied his

§ 2255 motion without an evidentiary hearing.

AFFIRMED.

1 Walter notes that he provided a written statement to the Government shortly before the hearing on his § 2255 motion, but he never provided it to the district court, and it is therefore not part of the record. Although Walter claims that the Government “did not dispute” that the statement “was truthful and complete,” the Government asserted at the hearing on the § 2255 motion that the statement provided no grounds for granting the motion.