United States v. Salas

• Decision Date: 28 April 2023
• Docket Number: Civil Action 5:23-041-DCR,CRIMINAL ACTION 5:17-101-DCR-1
• Parties: UNITED STATES OF AMERICA, Plaintiff/Respondent, v. FERNANDO RAFAEL LARA SALAS, Defendant/Movant.
• Court: U.S. District Court — Eastern District of Kentucky

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UNITED STATES OF AMERICA, Plaintiff/Respondent, v. FERNANDO RAFAEL LARA SALAS, Defendant/Movant.

Civil Action No. 5:23-041-DCR

CRIMINAL ACTION No. 5:17-101-DCR-1

United States District Court, E.D. Kentucky, Central Division, Lexington

April 28, 2023

MEMORANDUM OPINION AND ORDER

Danny C. Reeves Chief Judge

Defendant/Movant Fernando Rafael Lara Salas filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on December 19, 2020. [Record No. 192] He contends that his trial and appellate attorneys provided constitutionally ineffective assistance. [Id. at pp. 4-5] This Court granted Lara Salas' § 2255 motion regarding his claim of ineffective assistance of appellate counsel but denied the defendant's remaining claims as moot. [Record No. 212, p. 3]

Lara Salas has now filed a second § 2255 motion in which he reasserts the claims against his trial attorney that were previously denied as moot. [Record No. 242] Specifically, he argues that his trial counsel was ineffective for failing to communicate a plea offer, to call witnesses to testify, and to challenge his sentence enhancement under 21 U.S.C §§ 841 and 851. [Id. at pp. 4-8] The defendant further claims that the Court erred by failing to to properly instruct the jury on the elements of his felon in possession charge under Rehaif v. United States. [Id. at p. 6] The motion has been fully briefed and is ripe for review.

I. Background

A federal grand jury indicted Lara Salas for one count of conspiring to distribute cocaine in violation of 21 U.S.C § 846 (Count 1), one count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3), two counts of unlawfully possessing a firearm in violation of 18 U.S.C § 922(g)(1) and (5)(A) (Counts 4, 5), and one count of unlawful reentry in violation of 8 U.S.C. § 1326(a) and (b)(1) (Count 6). [Record No. 92] Additionally, the defendant was indicted on five counts of possessing controlled substances with the intent to distribute them in violation of 21 U.S.C. § 841(a)(1): one count involving cocaine (Count 2), one involving tramadol (Count 8), one involving fentanyl (Count 9), one involving methamphetamine (Count 10), and one involving methylenedioxyamphetamine (Count 11). [Id.] Attorney Jeffrey Darling was appointed to represent the defendant under the Criminal Justice Act. [Record No. 4]

The United States filed a notice pursuant to 21 U.S.C. § 851 after Lara Salas' indictment, indicating that he would be subject to an enhanced statutory punishment if convicted under Counts 1 or 2. [Record No. 11] It noted that the defendant's prior federal conviction for possessing cocaine would render him eligible for an enhancement under 21 U.S.C. § 841(b)(1). [Id. at p. 1]

Following a three-day trial in January 2018, a jury convicted Lara Salas of all counts. [Record No. 107] The defendant wrote to the Court shortly after his trial to express dissatisfaction with his attorney. [Record No. 141] He complained that Darling was “not effective in [his] defense” because counsel rarely visited with him, “never discussed any plea deal with [him],” and did not present exculpatory evidence at trial. [Id.]

Darling presented billing records regarding his meetings with Lara Salas at a hearing on the defendant's letter. Counsel noted that the government's proposed plea agreement required the defendant to plead guilty to enhanced cocaine trafficking, which carried a mandatory minimum sentence of 20 years. [Id. at pp. 3-4] Darling stated that, while he communicated the proposed agreement to Lara Salas, plea negotiations “never really got off the ground” because the government's offer to dismiss charges did not benefit the defendant in light of the applicable mandatory minimums. [Id. at pp. 8-9] Darling further explained that he met with Lara Salas six times prior to trial and that “every time [counsel and the defendant] talked, we were going to trial.” [Record No. 166, pp. 9-10, 12]

The Court questioned Lara Salas regarding the allegations in his letter. [Id. at pp. 1117] In response, Lara Salas stated that he did not remember whether Darling informed him about the United States' plea offer, but that he recalled counsel telling him that “[the government] could give [him] 20 years.” [Id. at p. 11] He further asserted that his attorney failed to review discovery with him or to procure evidence of fingerprints, videos, and phone calls in preparation for trial. [Id. at pp. 12-15]

As the Court explained, the evidence the defendant sought, such as fingerprint evidence, “may be helpful evidence to the government, but [it is] not required.” [Id. at p. 15] The Court also found that the defendant's claims that Darling failed to meet with him lacked credibility, stating in relevant part:

I find specifically that your attorney, Mr. Darling, provided very effective assistance of counsel. Specifically, he did cross-examine witnesses, he did review discovery, and he did review that discovery with you. Perhaps not as much as you would have liked, but he reviewed discovery with you. And he also met with you on numerous occasions, more than you have indicated to the Court. I also find that he discussed with you the plea offer that was made by the United States, despite the fact that you continue to deny that.

I take not only his statements [into] consideration, but also information the Court has received from interpreters that have asked for reimbursement for traveling to Grayson County to meet with you and Mr. Darling. You continue to assert your innocence in this case, and that's really what this comes down to, is you disagree with the jury's verdict. And at this point you're looking for someone to blame. But what you've done inadvertently is you have allowed me to consider an ineffective assistance of counsel claim prior to sentencing, and hold an evidentiary hearing in doing that, and I found that you have made false statements to the Court in that effect.

So your claim of ineffective assistance of counsel is bogus. And this is where we stand at this point.

[Id. at pp. 17-18] Despite determining that Darling effectively represented Lara Salas, the Court granted the defendant's request for new counsel and appointed Thomas Lyons to represent the defendant during the sentencing phase of the case. [Id. at p. 18]

Lara Salas' Presentence Investigation Report (PSR) contained a recommendation to apply an enhancement to the defendant's base offense level under § 3B1.1(a) of the United States Sentencing Guidelines because the defendant held a leadership role in the drug trafficking conspiracy. [Record No. 179, ¶ 35] The PSR further contained a recommendation to apply an enhancement under U.S.S.G. § 3C1.1 because Lara Salas obstructed the administration of justice when he made false statements regarding Darling's representation. [Id. at ¶ 36] The probation officer recommended a Total Offense Level of 38 and a Criminal History Category of III, resulting in a suggested sentencing range of 352 to 425 months' imprisonment. [Id. at ¶ 77] The PSR further noted that the defendant was subject to a mandatory minimum sentence of 20 years' imprisonment for Counts 1 and 2 pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851. [Id. at ¶ 76]

Lyons objected to both guidelines' enhancements and to the amount of drugs attributed to the defendant. [Record No. 183, pp. 2-4] The Court sustained the defendant's objection to the § 3C1.1 enhancement but overruled the other objections to the PSR. [Id. at p. 43] As a consequence, the Court determined that the defendant's correct combined guidelines range was 295 to 353 months' imprisonment, and the applicable mandatory minimum term was 300 months' imprisonment. [Id. at p. 48] A a sentence of 353 months' imprisonment was ultimately imposed. This consisted of 293 months for Counts 1, 2, 9, 10, and 11, to run concurrently with a sentence of 120 months on Counts 4, 5, 6, and 8; and 60 months' imprisonment to run consecutively to the sentences for all other counts. [Record No. 175]

Lara Salas appealed the judgment to the United States Court of Appeals for the Sixth Circuit. [Record No. 176] The circuit court granted Lyons' motion to withdraw as counsel for the defendant after Lara Salas retained attorney John Tennyson to represent him during the appeal. [Record No. 180] The circuit court granted the defendant's motion to voluntarily dismiss his appeal several months later. [Record No. 184]

Lara Salas filed his first § 2255 motion in December 2019. [Record No. 192] Thereafter, the Court granted the motion, in part, after finding that the defendant received ineffective assistance of appellate counsel because Tennyson improperly advised Lara Salas to dismiss his appeal. [Record No. 212] The Court then directed the Clerk to file a timely Notice of Appeal on Lara Salas' behalf. [Id. at p. 3]

During the second appeal, the defendant claimed that insufficient evidence supported seven of his convictions, that the sentencing Court erred in applying a sentencing enhancement under section 3B1.1(a) of the guidelines, and that one of his two firearm convictions should be vacated because both convictions “arose from the same act involving the same firearm.” [Record No. 236] The Sixth Circuit, however concluded that the defendant's convictions were supported by sufficient evidence and that this Court properly applied section 3B1.1(a) in calculating the guidelines range for incarceration. [Id. at pp. 4-6] The court also determined that one of the defendant's firearm convictions should be vacated, but found that resentencing the defendant was not required because he received concurrent 120-month sentences for each conviction. [Id. at p. 6] This Court then filed an amended judgment...