United States v. Rivas–Lopez

• Decision Date: 18 April 2012
• Docket Number: No. 10–20436.,10–20436.
• Citation: 678 F.3d 353
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rafael E. RIVAS–LOPEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

678 F.3d 353

UNITED STATES of America, Plaintiff–Appellee,

v.Rafael E. RIVAS–LOPEZ, Defendant–Appellant.

No. 10–20436.

United States Court of Appeals, Fifth Circuit.

April 18, 2012.

Renata Ann Gowie, Asst. U.S. Atty., Houston, TX, for Plaintiff–Appellee.

Rafael E. Rivas–Lopez, Forrest City, AR, pro se.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH and HIGGINSON, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Rafael E. Rivas–Lopez (“Rivas”), federal prisoner # 16285–179, contends that he received ineffective assistance of counsel when his attorney overestimated his sentencing exposure under a proffered plea deal, leading him to reject the deal and stand trial. The district court rejected this argument. For the reasons that follow,we vacate the district court's order with respect to this issue and remand for an evidentiary hearing.

I.

A jury convicted Rivas of one count of conspiracy to commit hostage taking, four counts of hostage taking, four counts of aiding and abetting the harboring of illegal aliens for the purpose of commercial advantage and private financial gain, and four counts of aiding and abetting the transportation of illegal aliens for the purpose of commercial advantage and private financial gain. A probation officer assessed a base offense level of 32 and added 4 levels under the grouping rules.¹ The officer originally assessed an additional 6–level increase based on a finding that ransom demands were part of the scheme, ² but Rivas objected, pointing to earlier sentencing hearings for his codefendants in which the district court determined that the evidence did “not clearly show that ransom demands were made for the release of each of the smuggled aliens.” The officer ultimately reversed course, recommending against the 6–level ransom enhancement. In total, then, the ultimate presentence report (“PSR”) recommended that Rivas's offense level was 36, which, when combined with his criminal history category of I, resulted in a Guidelines imprisonment range of 188 to 235 months.³ The district court sentenced Rivas to a total of 188 months of imprisonment. This Court affirmed Rivas's conviction and sentence, and the Supreme Court denied certiorari.⁴

Rivas then filed a § 2255 motion raising several claims of ineffective assistance of counsel. The only claim at issue here is that his counsel erroneously advised him that if he pleaded guilty he would face a prison term in the range of 262 to 327 months based on an offense level of 39. According to the district court, counsel derived the offense level of 39 from a base offense level of 32; ⁵ enhancements for making ransom demands (6 levels),⁶ serious bodily injury suffered by a victim (2 levels), ⁷ and use of a dangerous weapon (2 levels); ⁸ as well as a 3–level reduction for acceptance of responsibility.⁹

Rivas asserts in his brief and affidavit that the Government offered a plea bargain that would have required him to plead guilty to only one count but that he rejected the agreement because his attorney advised that he would receive a 21–year sentence if he accepted it. He faults counsel for failing to examine or weigh potential objections to the sentencing enhancements. He also maintains that he would have accepted the Government's offer and pleaded guilty if he had known that his sentencing exposure was potentially lower than what counsel advised and that he did not face what he believed was a “mandatory minimum” prison sentence of 262 months.

The district court denied the § 2255 motion without holding an evidentiary hearing. It concluded that “Rivas does not show that counsel's performance was deficient, or that he was actually prejudiced as a result.” ¹⁰ It determined that the attorney's estimate of the sentence was not unreasonable or erroneous “[b]ased on the evidence of Rivas' involvement and his conduct during the offense.” ¹¹ Even if counsel's calculations were incorrect, according to the district court, counsel did not substantially misstate Rivas's sentencing exposure because the estimate was not grossly inaccurate and did not substantially misstate the Guidelines range,¹² noting that two of Rivas's codefendants received total offense levels of “at least 41” and another received a 40.¹³ Also, because Rivas admitted that he did not wish to provide assistance to the Government, the court reasoned, Rivas could not show that he would have accepted the plea agreement but for counsel's sentencing advice.¹⁴ Moreover, the court explained, Rivas could not establish that he would have received a less severe sentence if he had pleaded guilty because he could not show that the enhancements counsel factored into the offense-level calculation would not have applied to him. ¹⁵

The district court denied a certificate of appealability (COA). ¹⁶ Rivas filed a timely notice of appeal. This Court granted a COA on the issue “whether trial counsel performed deficiently by overestimating Rivas's Guidelines range and whether it is reasonably probable that Rivas would have pleaded guilty had he known the correct guidelines range and that a guilty plea would have reduced his sentence.” The Court also granted a COA as to whether the district court should have held an evidentiary hearing.

II.

In the 28 U.S.C. § 2255 context, this Court reviews the district court's legal conclusions de novo and its factual findings for clear error.¹⁷ The district court's decision to deny the ineffective assistance of counsel claim poses mixed questions of law and fact, and this Court reviews those issues de novo.¹⁸

III.

“[T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” ¹⁹ Indeed, this Circuit has observed that providing counsel to assist a defendant in deciding whether to plead guilty is “ ‘[o]ne of the most precious applications of the Sixth Amendment.’ ” ²⁰ When considering whether to plead guilty or proceed to trial, a defendant should be aware of the relevant circumstances and the likely consequences of his decision so that he can make an intelligent choice.²¹ Where a defendant persists in a plea of not guilty, counsel's failure to properly inform him about potential sentencing exposure may constitute ineffective assistance. ²²

The Supreme Court recently affirmed this Circuit's case law, holding that the Sixth Amendment protects against, and remedies, the rejection of favorable plea offers for want of effective assistance of counsel.²³

An attorney renders constitutionally ineffective assistance where his performance was deficient and prejudiced the defense. ²⁴ To establish an ineffective assistance claim, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel's poor performance the result of the proceeding would have been different.²⁵ For the deficiency prong, counsel's performance is to be accorded “ ‘a heavy measure of deference.’ ” ²⁶ To meet the prejudice prong, Rivas must show that “but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court ( i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.” ²⁷ Any amount of additional jail time is significant for purposes of showing prejudice.²⁸

Counsel does appear to have overestimated the sentence Rivas would have received if he had pleaded guilty. After a jury convicted Rivas of 13 counts, his 188 to 235 month imprisonment range was calculated using a base offense level of 32 and adding four levels under the Guidelines' grouping rules. If instead Rivas had pleaded guilty to a single count, it stands to reason that his base offense level would likewise have been 32 and that the grouping rules would not have applied.

Under certain conditions, a defendant is entitled to a three-level reduction of his base offense level for acceptance of responsibility.²⁹ Rivas asserted in the districtcourt that as part of the proposed plea offer, the Government promised not to object to a three-level reduction for acceptance of responsibility. Rivas then would have reduced his offense level to 29 by accepting the Government's offer and pleading guilty.

With a criminal history category of I and a total offense level of 29, Rivas's Guidelines range would have been 87 to 108 months of imprisonment.³⁰ According to Rivas, counsel estimated that if he were to plead guilty, he would face a sentencing range of 262 to 327 months, which therefore would have been inaccurate by 154 to 240 months.³¹

But then again, one can argue, as the Government does, that the facts in the PSR could have supported a higher Guidelines range, in line with the range calculated by defense counsel. It is unclear what information counsel knew about Rivas's conduct when he calculated Rivas's sentencing exposure. Counsel did not describe his reasoning in his affidavit, and to the extent that he did, he inexplicably avers to an offense level of 41. According to the PSR, Rivas carried a firearm during the offense, which potentially could have resulted in a two-level increase.³² Causing serious bodily injury also carries a two-level increase, and at least one victim was beaten, though it does not appear that Rivas was directly involved.³³ As for the potential six-level increase for making a ransom demand, at least some of Rivas's codefendants did not receive that enhancement, though there was evidence that the victims' families were asked to provide money for their relatives' release. ³⁴ As the Government argues, these enhancements...