De La Rosa v. United States

• Decision Date: 17 September 2012
• Docket Number: CASE NO. 09-Cv-22646-COHN
• Parties: VERTELIO DE LA ROSA, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

VERTELIO DE LA ROSA, Movant,

v.UNITED STATES OF AMERICA, Respondent.

CASE NO. 09-Cv-22646-COHN

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Dated: September 17, 2012

(08-Cr-20685-COHN)

MAGISTRATE JUDGE P. A. WHITE

REPORT OF

MAGISTRATE JUDGE

FOLLOWING REMAND

I. Introduction

This matter came to this Court on Vertilio De La Rosa's motion to vacate pursuant to 28 U.S.C. §2255, attacking his conviction and sentence for making a false statement on an application for a United States Passport in violation of 18 U.S.C. §1542, aggravated identity theft in violation of 18 U.S.C. §1028A(a)(1), and illegal re-entry in violation of 8 U.S.C. §1326(a), entered following a guilty plea in case no. 08-Cr-20685-Cohn.

This matter is currently before this Court on remand from the Eleventh Circuit Court of Appeals, which specifically directed that the Court address the following claims:

[C]counsel was ineffective for (a) failing to recognize and to advise De La Rosa that he would be subject to additional imprisonment while awaiting deportation; (b) failing to recognize and to advise De La Rosa that he would be subject to automatic deportation if convicted of a crime for which the possible sentence exceeded one year; and (c) failing to negotiate a more favorable plea agreement.

De La Rosa v. United States, 2012 WL 974981 (11th Cir. 2012).

This Cause has been re-referred to the to the undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2255 Cases in the United States District Courts. (Cv DE# 41).

II. Facts and Procedural History

De La Rosa was charged by indictment with making a false statement on an application for a United States Passport in violation of 18 U.S.C. §1542 (count 1), falsely representing himself to be a United States citizen in violation of 18 U.S.C. §911 (count 2); making a false statement in writing to a government agency in violation of 18 U.S.C. §1001(a)(2) (count 3); aggravated identity theft in violation of 18 U.S.C. §1028A(a)(1)(count 4); and illegal re-entry in violation of 8 U.S.C. §1326(a) (count 5). (Cr-DE# 8).

De La Rosa entered a written plea agreement under which he agreed to enter a guilty plea as to counts 1, 4, and 5 and the government agreed to dismiss counts 2 and 3 after sentencing. (Cr-DE# 18). In connection with the plea agreement, De La Rosa executed a Factual Proffer, signed by De La Rosa, defense counsel, and the AUSA. The Factual Proffer provided:

The United States of America and defendant Vertelio De La Rosa agree that, were this case to go to trial, the government would establish the following facts beyond a reasonable doubt:

On or about June 18, 2008, the defendant, Vertelio De La Rosa, applied for a United States passport at the North Miami Post Office in Miami-Dade County, Florida, in the name of A.S.B. The defendant submitted an application for a United States passport representing that his name was A.S.B., when in truth and in fact, the defendant knew his name was not A.S.B. The defendant presented a Puerto Rico birth certificate in the name ofA.S.B. as proof of citizenship and a Florida driver license in the name of A.S.B. as evidence of identification. The defendant knowingly used the Puerto Rico birth certificate in the name of A.S.B., which is the means of identification of another person, without lawful authority.

On July 9, 2008, defendant was read a Miranda warning in Spanish and waived his Miranda rights in writing. Defendant admitted that he purchased the Puerto Rico birth certificate along with a social security card in the name of A.S.B. for $1500 and admitted that he falsely completed an application for a United States passport in the name of A.S.B.

The defendant was found in Miami-Dade County, Florida, on July 9, 2008, after having previously been removed and deported from the United States on January 5, 1995. The defendant did not have the consent of the Attorney General of the United States or his successor to reapply for readmission. The defendant was convicted of attempted criminal sale of a controlled substance in New York Superior Court in 1994.

(Cr DE# 19).

The court conducted an October 3, 2008 change of plea hearing. (DE# 18, Ex. 1; Change of Plea Hearing Transcript). The court conducted a colloquy with De la Rosa during which he answered questions regarding his decision to plead guilty under oath, with the assistance of a translator. (Id.).

Prior to sentencing, a PSI was prepared which revealed as follows. According to U.S.S.G. §3D1.2, counts 1 and 5 could not be grouped together as they involved separate harms, however, count 4 was excluded from the grouping rules as the court requires a term of imprisonment for aggravated identity theft to run consecutive to any other term under U.S.S.G. §3D1.1(b)(1). (PSI ¶13).

With respect to count 1, the PSI set the movant's base offenselevel at 8, pursuant to U.S.S.G. §2L2.2, because the offense involved providing a false statement on an application for a United States passport. (PSI ¶14). Pursuant to U.S.S.G. §2L2.2(b)(1),the offense level was increased by 2 because the movant was an unlawful alien who had been deported prior to the instant offense. (PSI ¶15). As a result, the adjusted offense level as to count 1 was 10. (PSI ¶19).

With respect to count five, the PSI set the movant's base offense level at 8, pursuant to U.S.S.G. §2L1.2, because the offense involved illegal reentry after deportation. (PSI ¶20). Pursuant to U.S.S.G. §2L1.2(b)(1)(B),¹ the offense level was increased by 12 because the movant had been previously deported or unlawfully remained in the United States after a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less. (PSI ¶21). As a result, the adjusted offense level as to count 5 was 20. (PSI ¶25).

The combined adjusted offense level for both counts was 20. (PSI ¶31). Two levels were then deducted, pursuant to U.S.S.G. §3E1.1(a), based on the movant's timely acceptance of responsibility. (PSI ¶33). De La Rosa's total offense level was 18. (PSI ¶34).

The probation officer also determined that the movant had a total of zero criminal history points and a criminal history category of I. (PSI ¶40).

The statutory term of imprisonment as to count 1 was 0 to 10 years in prison under 18 U.S.C. §1546(a), as to count 4 was twoyears consecutive to any other term under 18 U.S.C. §1028A(a)(1), and as to count 5 was zero to 10 years under 8 U.S.C. §1326(b)(2). (PSI ¶69). Based on a total offense level of 18 and a criminal history category I, the movant's resulting guideline range was 27 to 33 months in prison, followed by a consecutive sentence of two years as to count four. (PSI ¶70).

On December 19, 2008, the movant appeared for sentencing. (DE# 18, Ex. 2; Sentencing Hearing Transcript). The court sentenced him to a term of 24 months for count 1 and 24 months for count 5, to run concurrently, and 24 months for count 4 to run consecutive to counts 1 and 5. (Cr-DE# 23).

On September 2, 2009,² De La Rosa filed motion to vacate his sentence pursuant to 28 U.S.C. §2255 and memorandum in support thereof. (Cv-DE# 1). The United States filed an answer to the complaint. (Cv-DE# 6). De La Rosa filed a reply (Cv-DE# 7), second reply (Cv-DE# 8), and motion for summary judgment (Cv-DE# 10). The government next filed a response in opposition to the motion for summary judgment (Cv-DE# 12) and De La Rosa filed a reply to the response (Cv DE# 13).

In a September 7, 2010 Report (Cv DE# 21), the Undersigned construed Claims 1 and 2 as a single claim—that De La Rosa's counsel was ineffective for failing to move for a downward departure to offset the additional time he would serve while the government processed his deportation order—and recommended denying it. See De La Rosa, 2012 WL 974981 at *1. Next, the Report construed Claim 3 as asserting both an ineffective assistance ofcounsel claim and an underlying claim that De La Rosa's conviction was invalid because the government failed to prove each element of the offense. Id. The Undersigned recommended denying the ineffective assistance of counsel claim raised in Claim 3 but recommended granting De La Rosa's motion based on his underlying challenge to his aggravated identity theft conviction. Id.

The District Court adopted the report and recommendation in part, it reversed the recommendation on Claim 3. (Cv DE# 24). In doing so, the district court concluded that De La Rosa failed to overcome his procedural default because sufficient evidence existed for a reasonable juror to conclude that De La Rosa knew that the means of identification belonged to another person. See De La Rosa, 2012 WL 974981 at *1.

On appeal, the Eleventh Circuit affirmed the District Court's decision with respect to claim 3. However, the Eleventh Circuit remanded based on the following:

The district court failed to consider the arguments raised in Claim 1 of De La Rosa's section 2255 motion. Construed liberally, De La Rosa asserted in Claim 1 that his counsel was ineffective for (a) failing to recognize and to advise De La Rosa that he would be subject to additional imprisonment while awaiting deportation; (b) failing to recognize and to advise De La Rosa that he would be subject to automatic deportation if convicted of a crime for which the possible sentence exceeded one year; and (c) failing to negotiate a more favorable plea agreement. Because each of these arguments constitutes a separate constitutional claim under Clisby [v. Jones, 960 F.2d 925, 936 (11th Cir.1992)] but was not addressed by the district court, we vacate the denial of the motion and remand the case with instructions for the district court to consider each distinct claim raised in Claim 1.

De La Rosa, 2012 WL 974981 at *2. The District Court re-referred the matter to the Undersigned in light of the Eleventh Circuit'sopinion. (Cv DE# 41).

III. Standard of Review

Pursuant to 28 U.S.C. §2255, a prisoner in federal custody may...