Perez Alvarado v. USA, No. 3:2017cv02307 - Document 2 (S.D. Cal. 2018)
Court Description: ORDER Denying Petition to Vacate under 28 USC 2255. Petitioner's Motion to Vacate his Conviction and Sentence is denied. The Clerk is directed to close this case. Because reasonable jurists would not find Court's assessment of the claims debatable or wrong, Court declines to issue Petitioner a certificate of appealability. Signed by Judge Cynthia Bashant on 6/7/2018. (All non-registered users served via U.S. Mail Service) (jah)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 UNITED STATES OF AMERICA, Case No. 16-cr-2770-BAS-1 Case No. 17-cv-2307-BAS Plaintiff/Respondent, 14 15 ORDER DENYING PETITIONER’S MOTION TO VACATE PURSUANT TO 28 U.S.C. § 2255 v. 16 17 CARLOS PEREZ ALVARADO, 18 [ECF No. 24 (in 16-cr-2870-BAS); ECF No. 1 (in 17-cv-2307-BAS)] Defendant/Petitioner. 19 20 21 Petitioner Carlos Perez Alvarado has filed a motion to vacate his conviction 22 and sentence pursuant to 28 U.S.C. § 2255, claiming he received ineffective 23 assistance of counsel and that his conviction and sentence violated due process. (ECF 24 No. 24.)1 For the reasons stated below, the Court DENIES Petitioner’s Motion. (ECF 25 No. 24 (in 16-cr-2770-BAS); ECF No. 1 (in 17-cv-2307-BAS).) 26 Because Mr. Perez-Alvarado’s “package disposition” included several different cases, the relevant documents are in various case files. Case No. 16-cr-940BAS has the documents, including the Presentence Report and Sentencing documents, pertaining to the conviction pursuant to Title 8, U.S.C. § 1326. This case file also includes the plea colloquy for the global disposition. (ECF No. 42) (“Plea 27 28 1 –1– 16cr2770 17cv2307 1 Petitioner was initially charged in the Southern District of California with 2 being found in the United States after deportation in violation of Title 8, U.S.C. § 3 1326. (Case No. 16-cr-940-BAS.) At the time of the arrest, the parties learned 4 Petitioner had another indictment pending against him in the Central District of 5 California for conspiracy to distribute heroin. (Case No. 14-cr-555 FMO (ultimately 6 transferred to the Southern District of California as case no. 16-cr-2770-BAS).) In 7 addition, Petitioner was on supervised release in the Central District of California 8 from a prior conviction for being illegally in the United States after deportation, and 9 thus faced a revocation of supervised release. (Case Nos. 11-cr-664 GAF, 17-cr- 10 7017-BAS). 11 Petitioner’s counsel, Mark Adams,2 negotiated a global settlement with the 12 Government in which the Government agreed: (1) to recommend (-3) for acceptance 13 of responsibility, (-4) for “fast track” and the low end of the guideline range for the 14 current section 1326 case (Plea Agreement § XA); (2) to recommend ninety-two 15 months custody for the heroin case (Plea Agreement § XF2); and (3) to recommend 16 that Petitioner’s sentence in these two cases, as well as the sentence for the supervised 17 release violation, run concurrently. (Plea Agreement § XA, F3.) The plea agreement 18 specifically noted that if Petitioner was determined to be a career offender pursuant 19 to USSG § 4B1.1(a), his base offense level would be calculated based on that section. 20 (Plea Agreement § XA.) 21 22 23 24 25 26 27 28 Colloquy”). Case No. 16-cr-2770-BAS has the documents, including the Presentence Report and Sentencing documents, pertaining to the heroin case transferred from the Central District of California. Both files include a transcript of the combined sentencing hearing (ECF No. 43 (in 16-cr-940-BAS); ECF No. 27 (in 16-cr-2880BAS)) (“Sentencing Hearing”) and a copy of the global written plea agreement (ECF No. 27 (in 16-cr-940-BAS); ECF No. 7 (in 16-cr-2770-BAS)) (“Plea Agreement”). Case No. 17-cr-7017-BAS has the documents pertaining to Petitioner’s violation of supervised release transferred from the Central District of California. Petitioner’s Motion to Vacate Pursuant to 28 U.S.C. § 2255 was filed in case no. 16-cr-2770-BAS and 17-cv-2307-BAS. Unless otherwise noted, ECF cites reference case no. 16-cr2770-BAS. 2 Mark Adams was Petitioner’s third attorney after two prior Marsden hearings resulted in Gerald McFadden and Casey Donovan being relieved and new counsel appointed. (ECF Nos. 16, 22 (in 16-cr-940-BAS).) –2– 16cr2770 17cv2307 1 At his Plea colloquy, Petitioner was informed that he was facing a maximum 2 of twenty years in custody for the illegal reentry conviction and thirty years in 3 custody for the heroin conspiracy conviction. (Plea Colloquy at 9:1-10.) He agreed 4 that he had discussed the Guidelines with his attorney; he understood the Guidelines 5 were only advisory, not mandatory, and the Court was free to impose a sentence 6 above the guideline range up to the statutory maximum, and that the sentence could 7 not be determined until the Presentence Report was prepared. (Plea Agreement § 8 VII; Plea Colloquy at 10:17-12:6.) Petitioner told the Court that he was satisfied with 9 the representation of his lawyer. (Plea Colloquy at 5:3-5.) 10 Finally, in the written plea agreement, “[i]n exchange for the Government’s 11 concessions in th[e] plea agreement, [Petitioner] waive[d] to the full extent of the 12 law, any right to appeal or to collaterally attack the convictions . . . except a post- 13 conviction collateral attack based on a claim of ineffective assistance of counsel. 14 [Petitioner] also waive[d] to the full extent of the law, any right to appeal or 15 collaterally attack the sentence imposed.” (Plea Agreement § XI.) During the plea 16 colloquy, the Court specifically asked Petitioner about this provision: “it also looks 17 like if I do follow the plea agreement, you’ve agreed to waive your appeal and not 18 appeal any conviction or sentence or collaterally attack any conviction or sentence in 19 either this case of the Los Angeles case, is that your understanding?” to which 20 Petitioner replied, “Yes.” (Plea Colloquy at 6:10-15.) 21 In the Presentence Report for the heroin case, Probation noted that Petitioner 22 was a “career offender” pursuant to section 4B1.1(a) of the Sentencing Guidelines. 23 This calculation was based on the fact that Petitioner was over the age of eighteen 24 years, his heroin distribution offense was a felony controlled substance offense, and 25 Petitioner had prior convictions for possession of a controlled substance for sale in 26 2007 and assault with a deadly weapon in 2000. (PSR, ECF No. 10, ¶ 31.) The 2007 27 conviction was not Petitioner’s only felony drug trafficking conviction. He also had 28 a 2012 conviction for conspiracy to transport cocaine for which he received four –3– 16cr2770 17cv2307 1 years in prison and conviction from 1993 for conspiracy to commit narcotics 2 trafficking (case no. BA087679). (Id. ¶ 42.) This latter conviction was noted in the 3 PSR, but no points were added to Petitioner’s criminal history category because it 4 was too old to score. (Id.) Petitioner also had another immigration conviction for 5 Title 8, U.S.C., § 1326 for which he received thirty-seven months in prison in 2011. 6 (Id. ¶ 45.) Thus, Petitioner’s criminal history category was a VI. (Id. ¶ 49.) The 7 Probation Department calculated Petitioner’s guideline range for the heroin 8 conspiracy as 188-235 months and recommended the Court impose a sentence of 188 9 months. (Id. ¶¶ 121, 122.) 10 At the Sentencing Hearing, the Government agreed with the Probation 11 Department’s calculations that the guidelines were 188-235 months, but, in keeping 12 with the plea agreement, recommended a downward variance to 92 months. 13 (Sentencing Hearing at 5:13- 6:2.) Although the Government referenced Petitioner’s 14 involvement in wiretap intercepts that “indicate the serious high level involvement 15 in an international drug trafficking conspiracy,” ultimately the Government 16 recommended the downward variance “given the defendant’s age [sixty-five years], 17 medical condition and his involvement in this conspiracy dating back about five or 18 six years.” (Id. at 5:17-18, 22-23.) The Government noted that the Court could 19 impose each sentence consecutively resulting in a seventeen-year sentence, but urged 20 the Court to impose the three sentences concurrently. (Id. at 11:24-12:5.) 21 During allocution, Petitioner claimed he had “never found effective help in 22 [his] defense” from his multiple attorneys. (Sentencing Hearing at 10:1-9.) Thus, in 23 an abundance of caution, the Court cleared the courtroom and held another Marsden 24 hearing. Ultimately, the Court denied any request for a new attorney and resumed 25 the sentencing hearing. 26 The Court ultimately agreed to follow the Government’s recommendation and 27 imposed a ninety-two-month sentence in the heroin case. (ECF No. 16.) The Court 28 noted that if the Government had not made the recommendation, it would not have –4– 16cr2770 17cv2307 1 departed downward and would have just imposed the low-end of the guideline range 2 or 188 months. (Sentencing Hearing at 12:15-16.) The Court based its decision 3 largely on Mr. Perez-Alvarado’s multiple drug convictions. The Court then imposed 4 the low end of the guideline range, or 41 months in custody for the 1326 conviction 5 giving Petitioner credit both for acceptance of responsibility and for early disposition 6 or “fast track” (ECF No. 36 (in 16-cr-940-BAS)), and twelve months on the 7 supervised release violation (ECF No. 11 (in 17-cr-7017-BAS)). The Court imposed 8 both of these sentences concurrent to the ninety-two -months on the heroin case. 9 (Sentencing Hearing at 14:13-14, 21-22.) 10 11 II. ANALYSIS 12 A. Ineffective Assistance of Counsel 13 “[A] defendant who pleads guilty upon the advice of counsel may only attack 14 the voluntary and intelligent character of the guilty plea by showing that the advice 15 he received from counsel was ineffective.” Lambert v. Blodgett, 393 F.3d 943, 979 16 (9th Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 56–57 (1985)). Even in a 17 claim of ineffective assistance of counsel in a guilty plea, Petitioner must meet the 18 Strickland test, that is, he must show, first “that counsel’s assistance was not within 19 the range of competence demanded of counsel in criminal cases” and, second, that 20 he suffered actual prejudice as a result of this incompetence. See Lambert, 474 U.S. 21 at 979-80; Hill, 474 U.S. at 57-58. 22 “A deficient performance is one in which counsel made errors so serious that 23 []he was not functioning as the counsel guaranteed by the Sixth Amendment.” Iaea 24 v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland v. Washington, 466 U.S. 25 668, 687 (1984)). “Review of counsel’s performance is highly deferential and there 26 is a strong presumption that counsel’s conduct fell within the wide range of 27 reasonable representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 28 (9th Cir. 1987). The Court should not view counsel’s actions through “the distorting –5– 16cr2770 17cv2307 1 lens of hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) 2 (quoting Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989), vacated on other 3 grounds by Angelone v. Deutscher, 500 U.S. 901 (1991)). 4 In order to satisfy the second “prejudice” prong in a guilty plea case, 5 “defendant must show that there is a reasonable probability that, but for counsel’s 6 errors, he would not have pled guilty and would have insisted on going to trial.” Hill, 7 474 U.S. at 59. 8 Petitioner argues that his convictions and sentence should be set aside because 9 his counsel was ineffective in representing him. Specifically, Petitioner argues that: 10 11 12 13 14 15 I was tricked into signing a deal during the plea negotiations; my counsel said that the fast track was going to be taken away; and that the prior-22 year old-conviction of possession for sale (BA 087679) was not going to be used. However, the fast track was used and I was given 3 points for the 22 year old conviction for possession for sale—after the deal was made and after I signed the plea agreement. (ECF No. 24, Ground One.) 16 The Court is uncertain what errors Petitioner is claiming his attorney made. 17 First, he argues that “fast track was used,” apparently under the impression that “fast 18 track” was detrimental to him at sentencing. First of all, “fast track” refers to a 19 downward adjustment in a base offense level for a defendant who enters into an early 20 disposition with the government. It is a favorable, not a detrimental, adjustment for 21 a defendant. In this case, in his original section 1326 case, Petitioner and his attorney 22 did bargain for and get a “fast track” adjustment. Thus, Petitioner got the benefit of 23 this recommendation. In the heroin case, there was no recommendation for a “fast 24 track” departure in either the plea agreement or at sentencing, but any such departure 25 was ultimately moot because the government recommended and the Court agreed to 26 a large downward variance below the recommended guideline range. Thus, “fast 27 track” played no role in Petitioner’s ultimate sentence in the heroin case. 28 –6– 16cr2770 17cv2307 1 Second, Petitioner argues that he was given three points for a twenty-two-year 2 old conviction in case no. BA 087679. He was not. Although the Probation 3 Department mentions this old conviction, the Probation Department notes that it is 4 too old to be scored, and thus, no points were added to Petitioner’s criminal history 5 for this conviction. 6 It defies credulity to believe that Petitioner was tricked into signing the plea 7 deal by any misrepresentations in the agreement. The agreement he signed and 8 adopted in Court specifically called for the Government to recommend a ninety-two- 9 month sentence. The Government did so, and the Court followed the 10 recommendation. Hence, Petitioner knew exactly how much time would be 11 recommended at the time he pled guilty. 12 Petitioner fails to meet the first prong under Strickland in that he fails to 13 explain how his attorney’s assistance was below the range of competence demanded 14 by an attorney in a criminal case. 15 16 B. 17 Petitioner also argues that his convictions and sentences should be vacated 18 because they violated due process. Specifically, Petitioner argues that he did not 19 receive leniency for: (1) taking responsibility, (2) not being in a leadership role, and 20 (3) signing a plea. Petitioner claims that “if I’d known I would have gotten that much 21 time I’d have taken it to trial and fought the fast track and the 22 year old prior 22 conviction.” (ECF No. 24, Ground Two.) 23 24 Due Process First, as noted above, neither fast track nor the twenty-two-year old prior conviction played any role in Petitioner’s sentence in the heroin case. 25 Second, as part of his plea agreement, Petitioner waived his right to appeal or 26 collaterally attack his sentence. (Plea Agreement § XI, Plea Colloquy at 6:10-15); 27 see United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990) (waiver of a 28 right to appeal does not violate due process); United States v. Schuman, 127 F.3d –7– 16cr2770 17cv2307 1 815, 817 (9th Cir. 1997) (“[P]lea agreements are contractual in nature and are 2 measured by contract law standards.”) (quotation omitted). 3 Specifically, in the written plea agreement Petitioner waived “to the full extent 4 of the law, any right to appeal or to collaterally attack the convictions . . . except a 5 post-conviction collateral attack based on a claim of ineffective assistance of 6 counsel.” (Plea Agreement § XI.) And Petitioner agreed to waive “to the full extent 7 of the law, any right to appeal or collaterally attack the sentence imposed.” (Id.) 8 Furthermore, Petitioner confirmed this agreement with the Court during the plea 9 colloquy. (Plea Colloquy at 6:10-15.) Therefore, to the extent Petitioner is now 10 arguing that he was improperly sentenced or did not get sufficient credit for pleading 11 guilty, the claim is waived. 12 Finally, Petitioner’s claim is flatly contradicted by the record. He entered into 13 a written plea agreement where the Government agreed to recommend a sentence of 14 ninety-two months. The Government agreed to recommend that sentences in two 15 other cases run concurrently with this ninety-two month sentence. The Government 16 followed this agreement and made this recommendation at the sentencing. The Court 17 followed the Government’s recommendation, although the Court made it clear that it 18 would have sentenced Petitioner to a much higher sentence if it had not been for 19 Petitioner’s plea agreement with the Government. Therefore, it is clear that: (1) 20 Petitioner did get leniency for his plea of guilty; and (2) Petitioner knew exactly how 21 much time was going to be recommended by the Government, and cannot have been 22 surprised by the Court’s imposition of sentence following this recommendation. Hence, Petitioner’s due process arguments must also fail. 23 24 25 III. CONCLUSION 26 For the reasons stated above, Petitioner’s Motion to Vacate his 27 Conviction and Sentence is DENIED. (ECF No. 24 (in 16-cr-2870-BAS); ECF No. 28 1 (in 17-cv-2307-BAS).) The Clerk of the Court is directed to close case no. 17-cv–8– 16cr2770 17cv2307 1 2307-BAS. Because reasonable jurists would not find the Court’s assessment of the 2 claims debatable or wrong, the Court DECLINES to issue Defendant a certificate of 3 appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 4 IT IS SO ORDERED. 5 6 DATED: June 7, 2018 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –9– 16cr2770 17cv2307
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