Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13

PAUL K. CHARLTON United States Attorney District of Arizona DAVID A. PIMSNER Assistant U.S. Attorney Arizona State Bar No. 007480 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-03-1096-PHX-SMM Plaintiff, v. Rafael Cruz-Ayon, Movant. CV-05-2576-PHX-SMM (BPV)
GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

The United States of America, by and through undersigned counsel, hereby responds to

14 defendant's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §2255. 15 Undersigned counsel requests that this Court deny the defendant's motion on the grounds that 16 the defendant is barred from collaterally attacking his sentence based upon a written waiver in 17 the plea agreement. Additionally, the defendant's claims lack any factual or legal merit. This 18 response is supported by the following Memorandum of Points and Authorities. 19 Respectfully submitted this ___ day of November, 2005. 20 21 22 23 24 25 26 27 28 PAUL K. CHARLTON United States Attorney District of Arizona /s David A. Pimsner DAVID A. PIMSNER Assistant U.S. Attorney

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 1 of 10

1 2 3

MEMORANDUM OF POINTS AND AUTHORITIES I. POST-SENTENCING PROCEDURAL HISTORY On October 8, 2004, the defendant was sentenced to the Bureau of Prisons for a period of

4 135 months. Judgement was entered on October 19, 2004. (CR 34.) 1/ On February 10, 2005, 5 the defendant filed a Motion to Withdraw Plea or Reinforce Plea Agreement. (CR 36.) On 6 February 22, 2005, the defendant filed a reply entitled Motion to Take an Appeal as a Matter of 7 Right. (CR 38.) On, March 24, 2005, the Honorable Stephen M. McNamee, United States 8 District Court Judge, denied without prejudice, the defendant's motions subject to the defendant 9 filing a §2255 Motion. (CR 41.) 10 On August 25, 2005, the defendant-movant filed a pro se Motion to Set Aside, Vacate or

11 Correct Sentence pursuant to 28 U.S.C. § 2255. (CR 47.) He is currently confined at FCI12 Safford in Safford, Arizona. 13 14 II. ISSUES PRESENTED Defendant claims that (1) his Fifth Amendment rights were violated by a breach of the plea

15 agreement regarding his sentencing range; (2) his fifth and Sixth Amendment rights were 16 violated by sentencing him under mandatory instead of advisory guidelines; and (3) his counsel 17 was ineffective by failing to file an appeal to raise these claims. 18 19 III. FACTS On or about October 17, 2003, officers were conducting surveillance of a home in Peoria,

20 Arizona. During surveillance, officers observed a hit and run accident. Two of the accident 21 participants attempted to flee the scene and were pursued by the officers. As they pursued the 22 suspects, officers entered the backyard of the defendant's residence. While in the backyard, the 23 officers detected a strong odor of marijuana emanating from the home. At that time, the officers 24 encountered the defendant. (PSR ¶ 4.) 25 The abbreviation "CR" refers to the Clerk's Record and will be followed by the 26 pertinent document number. The abbreviation "RT" will refer to the Reporter's Transcript and will be followed by a date and relevant page number(s). References to the PSR are followed by 27 the appropriate paragraph numbers. 28
2
1/

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 2 of 10

1

The defendant declined to give consent to search but the defendant's common-law wife

2 consented. (PSR ¶ 5.) A search of the residence found nine taped bundles of methamphetamine 3 in the closet of a bedroom occupied by the defendant and his common law wife. A loaded .45 4 caliber semiautomatic handgun was found in the same closet. Additional quantities of 5 methamphetamine were found on the kitchen table and in the laundry room. The officers also 6 discovered approximately ten pounds of marijuana, a scale and repackaging materials at the 7 residence. (PSR ¶ 6.) 8 The defendant told the police that he was offered money to allow another person to use his

9 residence "to work." The defendant claims that this person left when the police came into the 10 backyard. The defendant also admitted that he had purchased the gun at a swap meet. (PSR ¶ 11 7.) 12 On March 8, 2004, the defendant entered a plea of guilty before the trial court pursuant to

13 a written plea agreement. The defendant pled guilty to Count 1 of the Indictment: Possession 14 with the Intent to Distribute 500 Grams or More of Methamphetamine. The plea agreement 15 stipulated that four kilograms of methamphetamine were readily provable as being in the 16 defendant's possession for distribution. Additionally, the plea stipulated to a three level 17 reduction for acceptance of responsibility and an agreement by the government that no further 18 charges would be filed against the defendant arising from information learned through the 19 investigation which brought about the plea. The defendant also agreed to waive any right to 20 appeal or collaterally attack any matter pertaining to the prosecution and sentence if the sentence 21 imposed was consistent with the terms of the agreement. (CR 23.) 22 On October 8, 2004, the defendant was sentenced to 135 months incarceration followed by

23 five years of supervised release. The sentence imposed was consistent with the stipulated terms 24 of the written plea agreement. The defendant did not file a Notice of Appeal within ten days 25 from the date of the entry of judgement. 26 // 27 // 28
3

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 3 of 10

1 2 3

III. POINTS AND AUTHORITIES A. Defendant's motion is timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110

4 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive 5 limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. 6 Particularly, in section 105 of AEDPA, Congress established a one-year period of limitations for 7 such motions. Having been filed within one year of the date upon which his conviction became 8 final, defendant's motion is therefore timely. 9 10 B. The Defendant Expressly Waived His Right to Collaterally Attack the Sentence. In the written plea agreement, the defendant waived his appeal rights and the right to

11 collaterally attack any matter pertaining to his prosecution or sentence. An express waiver of 12 the right to appeal in a negotiated plea of guilty is enforceable if knowingly and voluntarily 13 made, and not in violation of due process or public policy. United States v. Bolinger, 940 F.2d. 14 478, 480 (9th Cir. 1991); United States v. Navarro-Botello, 912 F.2d 318, 319 (9th Cir. 1990). 15 A defendant may also specifically waive the statutory right to file a § 2255 motion. United 16 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). A review of the written plea agreement 17 establishes that, with the assistance of counsel, the defendant had read and understood the 18 provisions of the plea agreement; had been advised of the nature of the charges against him, his 19 constitutional rights, and sentencing possibilities; entered his guilty plea without force, threats, 20 assurances or promises not contained within the agreement; and finally, that he was satisfied that 21 his attorney had represented him in a competent manner. Additionally, at the change of plea 22 proceeding and at sentencing, the district court made a finding that the defendant knowingly, 23 voluntarily and intelligently waived his right to appeal or collaterally attack his conviction and 24 sentence. (RT 3/8/04 23-24; Exhibit A.) (RT 10/8/04 29; Exhibit B.) 25 It is appropriate for a court to examine the plain language of a waiver to determine its scope.

26 United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996); See e.g., United States v. 27 Johnson, 67 F.3d 200 (9th Cir. 1995). In determining whether a plea agreement waives the right 28
4

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 4 of 10

1 to appeal or collaterally attack a judgment and sentence, courts apply contract principles, 2 including the parol evidence rule, to examine and enforce the plain language of the contract, or 3 plea agreement, and do not look to extrinsic evidence to interpret the terms of an unambiguous 4 written instrument. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000)(citing Wilson 5 Arlington Co. v. Prudential Ins. Co. of Am., 912 F.2d 366, 370 (9th Cir. 1990)). 6 Defendant's plea agreement contained a broad and unambiguous waiver of his appeal

7 rights. Specifically, defendant agreed to the following: 8 Waiver of Right to Withdraw and Right to Appeal a. Except as expressly provided for elsewhere in this agreement, defendant waives the right 9 to withdraw from the plea agreement and agrees to be sentenced according to its terms. 10 b. Defendant hereby waives any right to appeal or collaterally attack any matter pertaining to this prosecution and sentence if the sentence imposed is consistent with the terms of 11 this agreement. This agreement does not affect in any way the right of the United States 12 under 18 U.S.C. § 3742 to appeal the sentence imposed by the Court. 13 c. Defendant further waives any right to petition any court, including the district court or appellate court, pursuant to Public Law 105-119, Section 617, for an award of attorney's 14 fees or other litigation expenses directly or indirectly related to this criminal case. 15 16 Defendant raises no challenge to the voluntariness or validity of his plea agreement.

17 Defendant's express waiver therefore should be enforced. Accordingly, defendant's challenge 18 to his sentence in this § 2255 motion should be deemed waived. 19 20 C. Defendant's Motion is Meritless. It is the government's position that defendant's motion should be dismissed without reaching

21 the merits as set forth in section B above. However, in the event this Court should consider the 22 merits of defendant's motion, it must still fail. 23 24 1. The Defendant Received the Full Benefit of His Plea Agreement.

The defendant claims that his plea agreement was breached when the court imposed a two

25 level upward adjustment based on the possession of a firearm during the offense pursuant to 26 U.S.S.G. § 2D1.1(b)(1). The defendant asserts that United States v. Munoz, 408 F.3d 222 (5th 27 Cir. 2005), supports his claim that his plea agreement was breached. However, the facts of 28
5

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 5 of 10

1 Munoz are distinguishable from the present case. In Munoz, the government entered into a plea 2 agreement wherein the government stipulated to the base offense level, the application of four 3 upward departures, the application of one downward departure, and a stipulated total offense 4 level with a sentencing range of 57 and 71 months. Id. at 224-225. Then at sentencing, the 5 government argued for an additional upward departure which resulted in a higher total offense 6 level than was stipulated to in the plea agreement. As a result, the Court found a breach of the 7 agreement. 8 However, in the case at hand, the parties did not stipulate to a total offense level. The only

9 stipulations related to drug quantity, which established the base offense level, and a three level 10 departure for acceptance of responsibility. The defendant clearly received the benefit of both 11 of these stipulations. Therefore, Munoz does not apply. 12 In fact, the defendant was aware that the District Court could impose an upward departure

13 for the gun at sentencing. During the change of plea hearing, defense counsel placed on the 14 record that the issue of whether the weapon was possessed during the offense would be decided 15 by the Court at the time of sentencing. (RT 3/8/04 22-23; Exhibit A.) 16 In addition to the express language of the plea agreement, further evidence that the parties

17 did not stipulate to a total offense level came from the defendant's own motion he filed at 18 sentencing requesting departures for minor role and "safety valve." (CR 31.) Those issues were 19 litigated at sentencing and denied by the Court on the merits. (RT 10/8/04 2-3 and 10-19; Exhibit 20 B.) If the plea agreement had contained a stipulated offense level, then the defendant would not 21 have been entitled to consideration of any additional departures. Accordingly, the defendant's 22 claim that the plea agreement didn't allow for consideration of a possible upward departure is 23 disingenuous. 24 The defendant admitted under oath that he possessed the handgun and the evidence

25 established that the loaded handgun was located in the defendant's bedroom closet in close 26 proximity to nine bundles of methamphetamine containing over four kilograms of 27 methamphetamine (PSR at ¶ 6.) Accordingly, the District Court correctly concluded that an 28
6

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 6 of 10

1 upward departure applied because the defendant failed to demonstrate that it was clearly 2 improbable that the weapon was not connected to the offense, U.S.S.G. § 2D1.1(b)(1),comment. 3 (n.3), and United States v. Ellis, 241 F.3d 1096, 1099 (9th Cir. 2001). 4 Additionally, the defendant acknowledged to the Court at sentencing that the sentence he

5 received was consistent with the terms of the plea agreement. (RT 10/8/04 27-28; Exhibit B.) 6 Therefore, his claim that the terms of the plea agreement were breached are not supported by the 7 record. 8 9 2. United States v. Booker Does Not Apply Retroactively.

The defendant next claims that the court would have sentenced him differently if the Court

10 knew the guidelines were advisory and not mandatory pursuant to United States v. Booker, 125 11 S. Ct. 738 (2005). However, the Ninth Circuit Court of Appeals recently decided that Booker 12 does not apply retroactively to convictions that became final prior to its publication on January 13 14, 2005. See, United States v. Cruz, 423 F.3d 1119 (9th Cir. 2005). In the case at hand, the 14 defendant's conviction became final on October 29, 2004, ten days after the entry of the 15 judgement because the defendant did not file a notice of appeal. Since the defendant's 16 conviction is final, Booker does not apply and his claim must fail. 17 Additionally, at sentencing, the District Court Judge was asked what sentence he would have

18 imposed if the guidelines were found unconstitutional. The District Court Judge indicated that 19 he would have probably imposed a slightly higher sentence of 140 months. (RT 10/8/04 31; 20 Exhibit B.) Accordingly, the defendant's claim that he would have received a more lenient 21 sentence if the guidelines were advisory is also not supported by the record. 22 23 3. Defendant's Counsel Was Not Ineffective.

The defendant claims he directed his lawyer to file an appeal and that his lawyer was

24 ineffective for failing to file an appeal within the ten days. However, the defendant's attorney, 25 Joseph R. Lopez, advised undersigned counsel telephonically that the defendant did not direct 26 him to file a Notice of Appeal within ten days of the entry of judgement. Undersigned counsel 27 28
7

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 7 of 10

1 provided an affidavit to Mr. Lopez but the affidavit has not been returned prior to the date due 2 for filing this response. 2/ 3 Additionally, the defendant's first pleading challenging his sentence came four months after

4 his original sentencing date and was entitled Motion to Withdraw Plea or Reinforce Plea 5 Agreement. It was not until February 22, 2005, did the defendant file a motion entitled Motion 6 to Take Appeal as a Matter of Right. Based on the anticipated affidavit of his counsel and the 7 defendant's failure to raise the issue of appeal until over four months after his original sentencing 8 date, the defendant's claim that he timely requested an appeal is not supported by any credible 9 evidence. 10 To prevail on a claim of ineffective assistance, a defendant must show both that his Strickland v.

11 counsel's performance was deficient and that this prejudiced his case.

12 Washington, 466 U.S. 668, 688 (1984). In reviewing defense counsel's performance, a court 13 must "strongly presume that counsel's conduct was within the wide-range of reasonable 14 assistance, and that he exercised acceptable professional judgment in all significant decisions 15 made." Strickland, 466 U.S. at 689. Defendant's claim of ineffective assistance relates only to 16 counsel's failure to file a timely appeal a claim which is not supported by any credible evidence. 17 The charge against the defendant involved the possession with the intent to distribute

18 approximately four kilograms of methamphetamine Defense counsel nevertheless was able to 19 negotiate a plea agreement which allowed the defendant to plead guilty and receive the 20 maximum 3-level reduction for acceptance of responsibility. Additionally, counsel was able to 21 negotiate a plea which called for no further charges to be filed which arose from the fact as of 22 the investigation. The defendant benefitted significantly from this term because the evidence 23 supported a charge of possession of a firearm in furtherance of drug trafficking which would 24 have carried a mandatory five year consecutive sentence. Additionally, the defendant could have 25 26 Once received, undersigned counsel will file the affidavit under separate cover. If undersigned counsel does not receive the affidavit, the government will be prepared to subpoena 27 Joseph R. Lopez to provide testimony regarding the defendant's claim. 28
8
2/

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 8 of 10

1 been charged for being an illegal alien in possession of a firearm which also carried independent 2 penalties in addition to the drug conviction penalties. 3 Defense counsel prepared sentencing objections to the presentence report which requested

4 "Safety Valve" and minor role in the offense which were litigated and denied on the merits. The 5 defendant was sentenced only on facts which he admitted to in the written plea agreement and 6 under oath during the change of plea proceeding. The defendant admitted to a specific drug 7 quantity in his factual basis which established the applicable base offense level. The only 8 sentencing enhancement related to his loaded semiautomatic handgun found in close proximity 9 to four kilograms of methamphetamine. Defendant received the full benefit of the plea 10 agreement and was sentenced to the low end of the applicable sentencing range. 11 Accordingly, there is no evidence of ineffective assistance of counsel to support his claims

12 and the defendant's valid waiver of his right to appeal or collaterally attack this matter must be 13 enforced. 14 15 4. The Defendant was Not Entitled to the Application of the "Safety Valve."

In the Conclusion Section of the defendant's §2255 Motion he states that he should have

16 received the "Safety Valve" and been sentenced to 87 months. However, the defendant did not 17 meet the required elements for the "Safety Valve." The "Safety Valve" provision allows a 18 defendant to receive a two-level downward adjustment if the defendant satisfies the following 19 criteria: (1) "[t]he defendant does not have more than 1 criminal history point;" (2) "[t]he 20 defendant did not use violence or credible threats of violence or possess a firearm or other 21 dangerous weapon . . . in connection with the offense;" (3) "[t]he offense did not result in death 22 or serious bodily injury to any person;" (4) "[t]he defendant was not an organizer, leader, 23 manager, or supervisor of others in the offense;"(5) and, "the defendant has truthfully provided 24 to the Government all information and evidence the defendant has concerning the offense or 25 offenses that were part of the same course of conduct or of a common scheme or plan." 26 U.S.S.G., § 5C1.2(a). 27 28
9

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 9 of 10

1

Because the defendant possessed a firearm in connection with the charged offense, he is not

2 entitled to the "Safety Valve" pursuant to statute. Additionally, the defendant failed to truthfully 3 provide to the Government all information and evidence the defendant has concerning the 4 offense or offenses that were part of the same course of conduct or of a common scheme or plan. 5 Accordingly, the "Safety Valve" was not applicable and in any event, the defendant could not 6 have received a sentence below the ten-year mandatory, statutory minimum. 7 8 IV. CONCLUSION For all of the foregoing reasons, the Motion of Cruz-Ayon to Vacate, Set Aside, or

9 Correct Sentence pursuant to 28 U.S.C. § 2255 should be dismissed. 10 11 12 13 14 /s David A. Pimsner 15 16 17 18 19 20 21 22 23 24 25 26 27 28
10
I hereby certify that on November 30, 2005, I served the attached document by U.S. Postal mail on the following, who is not a registered participant of the CM/ECF system: Rafael Cruz-Ayon #81272-008 FCI Safford P.O. Box 9000 Safford, Arizona 85548

Respectfully submitted this ___ day of November, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona

DAVID A. PIMSNER Assistant U.S. Attorney

Case 2:03-cr-01096-SMM

Document 53

Filed 11/30/2005

Page 10 of 10