Regalado v. U.S.

• Decision Date: 07 July 2003
• Docket Number: No. 01-1774.,01-1774.
• Parties: Elda San Juanita REGALADO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

334 F.3d 520

Elda San Juanita REGALADO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-1774.

United States Court of Appeals, Sixth Circuit.

Argued: March 13, 2003.

Decided and Filed: July 7, 2003.

Paul L. Nelson (argued and briefed), Federal Public Defenders Office, Grand Rapids, MI, for Appellant.

Timothy P. VerHey (argued), John C. Bruha (briefed), United States Attorney, Grand Rapids, MI, for Appellee.

Before: MOORE and GIBBONS, Circuit Judges; COHN, Senior District Judge.^*

OPINION

MOORE, Circuit Judge.

Elda San Juanita Regalado ("Regalado") pleaded guilty to a single count of conspiracy to possess with intent to distribute and to distribute an unspecified amount of marijuana. She was sentenced to 151 months in prison based on the offense and enhancements for obstruction of justice and leadership. After her sentencing hearing, Regalado initially expressed interest in appealing her sentence, but her retained attorney instead advised pursuit of relief under Federal Rule of Criminal Procedure 35(b). When Regalado ultimately did not receive a sentence reduction for substantial assistance pursuant to Rule 35(b), she filed a motion for relief under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence on two grounds. First, Regalado claimed that her Sixth Amendment right to effective assistance of counsel was violated when her attorney failed to file an appeal at her request. Second, she asserted that her sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because although her indictment failed to indicate the specific amount of marijuana involved in the conspiracy, she was sentenced in excess of the default statutory sixty-month maximum provided in 21 U.S.C. § 841(b)(1)(D). After the district court denied her § 2255 motion, she appealed and this court granted a certificate of appealability as to both issues. We now AFFIRM the district court's decision denying Regalado § 2255 relief with respect to both issues.

I. BACKGROUND

Regalado was indicted in the Western District of Michigan, along with four others, for conspiring to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. The indictment did not include a drug quantity but instead cited 21 U.S.C. § 841(b)(1)(B), which states the penalty for conspiring to possess with intent to distribute or to distribute at least 100 kilograms of marijuana. Regalado was told at her arraignment that she faced not less than five and not more than forty years in prison for this offense.

On April 26, 1999, Regalado pleaded guilty to the sole count in the indictment. At her guilty plea hearing, Regalado accepted responsibility for her involvement in supplying approximately 500 pounds (approximately 225 kilograms) of marijuana. Specifically, when asked how much marijuana she supplied to her contact in Lansing, Michigan over the life of the conspiracy, she testified:

I'd say a little bit over 500 and some pounds. I don't exactly know the exact amount but more or less it's give or take. There was three — there was four times, four trips, and the first one was 100 and the second one was 132, and then there was another one for 60 and then the 100 and — what I was told there were 120 that when they got stopped and they got arrested it was — I understand that it's — there were 135 pounds, but to my knowledge it was supposed to be 120 pounds.

Joint Appendix ("J.A.") at 169 (Plea Hr'g). Thereafter, in a sentencing memorandum, she again acknowledged her involvement with these large marijuana transactions. Specifically, she took responsibility for organizing "four deliveries to Borrego as follows: June, 1997, 60 lbs.; July, 1997, 132 lbs.; August, 1997, 172 lbs.; and October, 1997, 135 lbs." J.A. at 275 (Def.'s Statement Adopting Findings of Presentence Report).

At her sentencing hearing, Regalado received a sentence consistent with a base offense level of 26 and a finding that she was involved with 100 to 400 kilograms of marijuana (220 to 880 pounds). Over Regalado's objections, she received enhancements pursuant to U.S. Sentencing Guidelines ("U.S.S.G.") §§ 3B1.1 and 3C1.1, for being a leader in the conspiracy and for obstruction of justice. She also objected to the sentencing court's decision not to reduce her guideline range for acceptance of responsibility. In light of the sentence enhancements, Regalado's total offense level was 32, which resulted in a guideline range of 151-188 months in prison; Regalado received a sentence at the lowest end of this range.

Regalado insists that she informed her trial attorney, Robert Yzaguirre ("Yzaguirre"), on more than one occasion that she wanted to appeal her sentence. Both Regalado and Yzaguirre admit that she expressed this desire immediately after sentencing, before they even left the courtroom. Yzaguirre explains their interaction in the following testimony:

You see, it wasn't so much her asking me to appeal her case, it was me telling her that I didn't think that that was the route to go.... But I can understand how she as the defendant is thinking that I'm helping her — which I was trying to help her — and she's not a lawyer. She could very well have been thinking that I was doing the appeal when I wasn't. I was doing — I was trying to do the Rule 35. J.A. at 131-32 (Yzaguirre Cross Exam.). Regalado also claims that she placed a phone call to her lawyer the day after sentencing and told him "that no matter what I still wanted him to appeal my case." J.A. at 105 (Regalado Direct Exam.).¹ According to Yzaguirre, however, he thought it best to provide assistance to the government and then pursue relief through Rule 35(b) because he feared an appeal might only result in a longer sentence. Although he admits that Regalado initially discussed an appeal, Yzaguirre insists that Regalado "never instructed" him to file an appeal. J.A. at 133 (Yzaguirre Cross Exam.).²

On August 25, 2000, Regalado filed a pro se motion for relief from her sentence pursuant to 28 U.S.C. § 2255. After appointing a Public Defender to represent Regalado with respect to this motion, the district court referred Regalado's ineffective assistance of counsel and Apprendi claims to a magistrate judge for an evidentiary hearing. After hearing testimony from Yzaguirre and Regalado, the magistrate judge recommended to the district judge that Regalado's petition be dismissed on both grounds. The magistrate judge concluded that Regalado "acquiesced in Mr. Yzaguirre's strategy to seek a reduction of sentence instead of an appeal." J.A. at 81 (Report and Recommendation). In addition, the magistrate judge made the factual finding that Regalado "did not, at any time, specifically direct Mr. Yzaguirre to file an appeal." Id. The magistrate judge also determined that Regalado's Apprendi claim failed because she never established cause and prejudice for not raising this issue on direct appeal. The district court adopted the magistrate judge's report and recommendation and denied Regalado's petition. Regalado filed a timely notice of appeal and requested a certificate of appealability which the district court denied. On January 11, 2002, this court granted a certificate of appealability as to both issues.

II. ANALYSIS

A. Standard of Review

On appeal from the denial of a § 2255 motion, we review legal conclusions de novo and factual findings for clear error. Wright v. United States, 182 F.3d 458, 463 (6th Cir.1999). "A finding of fact will only be clearly erroneous when, although there may be some evidence to support the finding, `the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" United States v. Latouf, 132 F.3d 320, 331 (6th Cir.1997) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). As long as the district court has interpreted the evidence in a manner consistent with the record, "the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson, 470 U.S. at 574, 105 S.Ct. 1504.

B. Ineffective Assistance of Counsel

The Sixth Amendment of the United States Constitution provides that: "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Supreme Court identified the purpose of the Sixth Amendment right to counsel as a means of "assur[ing] that in any criminal prosecution the accused shall not be left to his own devices in facing the prosecutorial forces of organized society." Moran v. Burbine, 475 U.S. 412, 430, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (quotations and citations omitted).

The Court's recent decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), announced that the test for assessing ineffective assistance of counsel for failure to file a notice of appeal is the familiar two-pronged inquiry of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Roe, 528 U.S. at 477, 120 S.Ct. 1029. The inquiry requires that we first ask whether the trial counsel's performance fell below the reasonably accepted professional standard. Put another way, we must assess whether "counsel's performance was constitutionally deficient such that he was not functioning as the `counsel' guaranteed by the Sixth Amendment." Magana v. Hofbauer, 263 F.3d 542, 547 (6th Cir.2001). In assessing the attorney's conduct under Strickland's first prong, the Supreme Court instructed that "courts must `judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct,' and `judicial scrutiny of c...