United States v. Aguiar

• Decision Date: 12 February 2015
• Docket Number: Criminal No. 04cr355–03 CKK,Civil Action No. 12–1553
• Parties: United States of America, v. Carlos Aguiar, Defendant.
• Court: U.S. District Court — District of Columbia

82 F.Supp.3d 70

United States of America

v.Carlos Aguiar, Defendant.

Criminal No. 04cr355–03 CKK

Civil Action No. 12–1553

United States District Court, District of Columbia.

Signed February 12, 2015

Barbara E. Kittay, Daniel Pearce Butler, U.S. Attorney's Office, Washington, DC, for Plaintiff.

Tony L. Booker, Law Offices of Tony L. Booker, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, UNITED STATES DISTRICT JUDGE

On July 15, 2005, Carlos Aguiar (“Aguiar”) was convicted by a jury in this Court of: conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise, through a pattern of racketeering activity (“Count I”), including the armed robbery of the Bank of America located at 5911 Blair Road, N.W., Washington, D.C., on or about January 22, 2004 (“Racketeering Act 1”), the armed robbery of the Industrial Bank located at 2012 Rhode Island Avenue, N.E., Washington, D.C., on or about June 12, 2004 (“Racketeering Act 3”), the armed robbery of the Chevy Chase Bank located at 3601 St. Barnabas Road, Silver Spring, Maryland, on or about May 10, 2004 (“Racketeering Act 5”), and the armed robbery of the Chevy Chase Bank located at 5823 Eastern Avenue, Chillum, Maryland, on or about May 27, 2004 (“Racketeering Act 6”); conspiracy to commit offenses against the United States, that is, armed robberies of banks the deposits of which were then insured by the Federal Deposit Insurance Corporation (“Count II”); armed robbery of the Bank of America on or about January 22, 2004 (“Count III”); using and carrying a firearm during and in relation to a crime of violence on or about January 22, 2004 (“Count IV”); unlawful possession on or about January 22, 2004, of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year (“Count V”); armed robbery of the Industrial Bank on or about June 12, 2004 (“Count X”); using and carrying a firearm during and in relation to a crime of violence on or about June 12, 2004 (“Count XI”); unlawful possession of a firearm on or about June 12, 2004, by a person convicted of a crime punishable by imprisonment for a term exceeding one year (“Count XIII”); and unlawful possession of a firearm on or about August 4, 2004, by a person convicted of a crime punishable by imprisonment for a term exceeding one year (“Count XX”). Presently before the Court is Aguiar's pro se [779] Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, and [780] Motion for Leave to Exceed Page Limitation in Filing his Petition Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. Upon a searching review of the parties' submissions,¹ the relevant authorities, and the record as a whole, the Court finds no grounds for setting aside Aguiar's conviction and sentence. Accordingly, the Court shall DENY Aguiar's [779] Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Further, the Court shall DENY AS MOOT Aguiar's [780] Motion for Leave to Exceed Page Limitation in Filing his Petition Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence.

I. BACKGROUND

On August 3, 2004, a federal grand jury indicted Aguiar and six codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland.² Indictment (Aug. 3, 2004), ECF No. [10]. The United States Court of Appeals for the District of Columbia Circuit (“D.C.Circuit”) described the factual scenario:

[Aguiar and his codefendants] indulged in a violent crime spree throughout the District of Columbia metro area that lasted for nearly a year and a half. Appellants, who began by cultivating and selling marijuana, evolved into a ring that committed armed bank robberies, using stolen vehicles to travel to the targeted banks and make their escapes. By the summer of 2004, the robbers had developed a signature style. The gang wore bullet-proof vests, masks, and gloves, and relied on superior fire power, preferring to use military weapons like AK–47s instead of handguns because they surmised the metropolitan police “wouldn't respond” when Appellants “robb[ed] banks with assault weapons.” The gang made use of several stolen vehicles, strategically placed along the get-away-route, for each robbery.

The robbers would serially abandon the vehicles, often torching them in an attempt to destroy any forensic evidence that might be left behind.

United States v. Burwell , 642 F.3d 1062, 1064–65 (D.C.Cir.2011). The matter proceeded to trial in this Court, and Aguiar was tried alongside five other codefendants. On July 15, 2005, a jury convicted Aguiar on all nine counts upon which he was charged in the indictment. Verdict Form, ECF No. [473].

On May 4, 2006, this Court sentenced Aguiar to a term of 292 months on Count I, 60 months on Count II, 300 months each on Counts III and X, and 120 months each on Counts V, XIII and XX, to run concurrently to each other. The Court also sentenced Aguiar to 120 months on Count IV and 300 months on Count XI to run consecutively to each other and to Counts I, II, III, V, X, XIII, and XX. Judgment in a Criminal Case, ECF No. [619]. Aguiar filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Aguiar's conviction in a published opinion. United States v. Burwell, 642 F.3d 1062 (D.C.Cir.2011), aff'd in part en banc, 690 F.3d 500 (D.C.Cir.2012). Aguiar filed a petition for writ of certiorari with the Supreme Court of the United States which was denied. Aguiar v. United States, ––– U.S. ––––, 132 S.Ct. 357, 181 L.Ed.2d 225 (2011). Aguiar currently is serving his sentence.

Pending before the Court is Aguiar's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Aguiar's motion is premised on ineffective assistance of counsel claims related to his trial counsel, Tony L. Booker, and appellate counsel, Mary E. Davis. Specifically, Aguiar claims that his counsel rendered him ineffective assistance by: (1) failing to explain the sentencing consequences of rejecting a plea offer and proceeding to trial; (2) failing to investigate and object to Aguiar's family members being excluded from the courtroom during jury selection, and failing to object to certain portions of voir dire taking place in the jury room; (3) failing to challenge an alleged constructive amendment to the indictment; (4) failing to raise a duplicity challenge to Counts IV and XI; and (5) failing to challenge the jury instruction and verdict form related to Counts IV and XI.

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that the sentence was imposed “in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal. “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Nonetheless, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b).

A prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so and “prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). However, “[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show ‘cause and prejudice’ for not having raised such claims on direct appeal, as these claims may properly be raised for the first time in a § 2255 motion.” United States v. Cook, 130 F.Supp.2d 43, 45 (D.D.C.2000), aff'd, 22 Fed.Appx. 3 (D.C.Cir.2001) (citation omitted).

A defendant claiming ineffective assistance of counsel must show (1) “that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms,” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C.Cir.2008) (citation omitted). “Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is the petitioner's burden to show that counsel's errors were “so serious” that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). “The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.... [I]nquiry into counsel's conversations with the defendant may be critical to a proper assessment of ... counsel's other litigation decisions.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. In evaluating ineffective assistance of counsel claims, the Court must give consideration to “counsel's overall performance,” Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), and “indulge a strong presumption that couns...