Law v. United States
Decision Date | 28 April 2014 |
Docket Number | CIV 13-3016-RAL |
Court | U.S. District Court — District of South Dakota |
Parties | CHARLES HIS LAW, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
DENYING MOTION UNDER
28 U.S.C. § 2255
Charles His Law is serving a 96-month sentence after having pleaded guilty to a reduced charge of assault resulting in serious bodily injury under a plea agreement. United States v. His Law, 11-CR-30154-RAL, Doc. 1, Doc. 26, Doc. 47.1 His Law now has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. His Law v. United States, 13-CV-3016-RAL, Doc. 1.2 In his § 2255 motion, His Law asserts the following grounds: 1) the Government allegedly breached the plea agreement by not recommending a "within guideline sentence;" 2) His Law's court-appointed counsel allegedly was ineffective at the sentencing hearing and in an appeal;3 and 3) this Court allegedly erred in how it sentenced His Law. His Law filed a lengthy memorandum in connection with his § 2255 motion making clear that he is challenging the Government's urging of the sentence at the topend of the guideline range at the sentencing hearing, his counsel's preparation for and performance at the sentencing hearing and on appeal, and this Court's rulings during the sentencing hearing. CIV Doc. 2. For the reasons explained herein, this Court denies His Law's § 2255 motion.
On December 14, 2011, His Law was indicted on four counts. CR Doc. 1. Count I of the Indictment alleged that His Law on November 3, 2011, unlawfully assaulted Evon Ortiz with a dangerous weapon, that being shod feet, with the intent to do bodily harm to Evon Ortiz, and that federal jurisdiction existed in that His Law is an Indian and the offense occurred in Indian country. CR Doc. 1. Count II of the Indictment alleged that His Law, on November 15, 2011, used the threat of physical force against Evon Ortiz to compel her to call law enforcement and give false information about the assault investigation, thereby tampering with a victim. CR Doc. 1. Count III of the Indictment alleged that, between November 12, 2011 and December 7, 2011, His Law threatened to kill Evon Ortiz for having cooperated in the assault investigation by federal officials, thereby committing the crime of retaliating against a victim. CR Doc. 1. Count IV of the Indictment alleged that between November 12, 2011 and December 7, 2011, His Law had taken Evon Ortiz, his intimate and dating partner, outside of Indian country by force and had assaulted her thereby committing the crime of interstate domestic violence. CR Doc. 1. His Law was arraigned on December 15, 2011, and was appointed David W. Siebrasse as his counsel under the Criminal Justice Act. CR Doc. 6.
His Law and Siebrasse reached a Plea Agreement with the Government, which was filed on April 12, 2012. CR Doc. 26. The terms of the Plea Agreement contained concessions by the Government favorable to His Law. Under the Plea Agreement, His Law agreed to waive Indictment and plead guilty to an Information charging one count of assault resulting in serious bodily injury. CR Doc. 26 at ¶ C In exchange for that guilty plea, the Government would dismiss the charges in the Indictment thereby greatly reducing the maximum penalty His Law was facing if convicted on all counts of the Indictment. CR Doc. 26 at ¶¶ B, C Under the Plea Agreement, Siebrasse secured for His Law's benefit a commitment from the Government to agree, based on the information known to it at the time, that His Law was entitled to a reduction for acceptance of responsibility in his offense level. CR Doc. 26 at ¶¶ E, F. The Government also agreed in the Plea Agreement that "it will recommend that the Court impose a sentence of imprisonment within the applicable Guideline range." CR Doc. 26 at ¶ G. As a part of the Plea Agreement, His Law waived all defenses and any right to appeal any non-jurisdictional issues. CR Doc. 26 at ¶ Q. That waiver excluded His Law's "right to appeal any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or upward variance pursuant to 18 U.S.C § 3553(a)." CR Doc. 26 at ¶ Q.
As a part of the Plea Agreement, His Law signed a Factual Basis Statement. CR Doc. 28; CR Doc. 57. In the Factual Basis Statement, His Law acknowledged the following facts to be true:
His Law appeared before this Court on April 17, 2012, at a change of plea hearing. Doc. 57. His Law was placed under oath and acknowledged his understanding that he had to answer questions truthfully. CR Doc. 57 at 2-3. Toward the beginning of the change of plea hearing, this Court had the following dialogue with His Law:
CR Doc. 57 at 4. The change of plea colloquy demonstrated that His Law was competent and was voluntarily and knowingly changing his plea with an understanding of his rights. CR Doc. 57. Among other things, His Law acknowledged signing the Factual Basis Statement, carefully reading and understanding the Factual Basis Statement, and going over the Factual Basis Statement with his attorney before signing it. CR Doc. 57 at 14. His Law acknowledged the accuracy of that statement as follows:
CR Doc. 57 at 14. Before taking His Law's change of plea, this Court again probed whether His Law had any complaint about his CJA counsel:
CR Doc. 57 at 15. His Law then changed his plea to guilty to the charge in the Information of assault resulting in serious bodily injury. CR Doc. 57 at 16. This Court ordered a Presentence Investigation Report (PSR) to be done and set a sentencing hearing.
The PSR on His Law contained a calculation of both the offense level and the criminal history category into which His Law fit under the United States Sentencing Commission Guideline Manual. With His Law having plead guilty to assault resulting in serious bodily injury, the base offense level was drawn from U.S.S.G. § 2A2.2. Because Evon Ortiz, His Law's victim, had suffered nasal fractures, buckling of the mid-nasal septum related to. the nasal fracture, facial swelling, and multiple bruises to her face and body as a result of His Law's assault, afive-levelincreaseappliedunderU.S.S.G. § 2A2.2(b)(3)(B). There were other offense level enhancements deemed applicable in the initial PSR. The initial PSR also contained a Chapter 4 enhancement...
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