United States v. Sanchez, CRIMINAL NO. H-08-358-1

• Decision Date: 22 May 2013
• Docket Number: CIVIL ACTION H-11-2199,CRIMINAL NO. H-08-358-1
• Parties: UNITED STATES OF AMERICA, Plaintiff/Respondent. v. NOE HEREDIA SANCHEZ, Defendant/Movant
• Court: U.S. District Court — Southern District of Texas

UNITED STATES OF AMERICA, Plaintiff/Respondent.

v.NOE HEREDIA SANCHEZ, Defendant/Movant

CRIMINAL NO. H-08-358-1

CIVIL ACTION H-11-2199

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: May 22, 2013

OPINION AND ORDER

Pending before the Court in the above referenced causes are (1) Movant Noe Heredia Sanchez's ("Sanchez's") § 2255 motion to vacate, set aside or correct sentence (instrument #1 in H-11-CV-2199; #50 in H-08-CR-358-1), (2) United States Magistrate Judge Frances Stacy's memorandum and recommendation (#56 in H-08-CR-358-1) that Sanchez's § 2255 motion be denied, and (3) Sanchez's objections (#57 H-08-CR-358-1).

A pro se complaint is "held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 521 (1972). Pro se pleadings are liberally construed. Haines, 404 U.S. at 521. Nevertheless pro se litigants must provide sufficient facts in support of their claims; "mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue." UnitedStates v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). "Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in state and federal court), unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1009, 1011 (5th Cir. 1983); see also U.S. v. Onwuasoanya, 180 F.3d 261 (Table), No. 96-20877, 1999 WL 274479, *2 (5th Cir. Apr. 16, 1999). "[A] district court does not commit error when it disposes of a habeas petitioner's claims without holding a full-fledged hearing when those claims are unmeritorious, conclusory, and wholly unsupported by the record." Id. at 1011 n.2; id.

To briefly summarize the history of this case, which is discussed in far more detail in the Magistrate Judge's memorandum and recommendation, on August 15, 2009, after being found unlawfully in this country, without consent of the Attorney General or the Secretary of the Department of Homeland Security, after his removal following a conviction of an aggravated felony, Sanchez pleaded guilty without a written plea agreement to an indictment charging him with illegal reentry by a previously deported alien after an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2).¹ #16, Minute Entry; #44, Transcript ofRearraignment. Before sentencing, a pre-sentence investigation report ("PSR")² was prepared for Sanchez, who filed no writtenobjections to it (#20, 21, 22, and 24). The PSR scored Sanchez at a base offense level of 8. Pursuant to § 2L1.2(b)(1)(A)(i),³ Sanchez was assessed a 16 level adjustment for his 1999 conviction for a "drug trafficking offense," Delivery of a Controlled Substance (Cocaine) in Texas state court.⁴ He was credited foracceptance of responsibility. Thus the Court, adopting the PSR as its own, found that he had a total guideline level of 21, criminal history category IV, for a guideline sentencing range of 57-71 months of incarceration. On January 16, 2009 the Court sentenced Sanchez to a term of 57 months of imprisonment. #25, Minute Entry; #40, Transcript of Sentencing Hearing.

On direct appeal, challenging only the enhancement, Sanchez argued that the Court erred by relying solely on the PSR to determine erroneously that Sanchez's state conviction was a "drug trafficking offense" under U.S.S.G. § 2L1.2(b)(1)(A)(i) for purposes of the 16-level enhancement.⁵ Affirming the district court, the Fifth Circuit rejected this argument and further pointed out that Sanchez did not contest his conviction for the subject crime nor that the facts underlying the conviction would otherwise qualify for the 16-level adjustment. The panel noted, "[Sanchez's] only point is that the district court needed to ground its factual findings about the prior conviction in one of the permissiblesources of information," i.e., "'the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented,'" but "not the particular facts underlying those convictions," as mandated by the Supreme Court in Shepard v. U.S., 544 U.S. 13, 16 (2005). U.S. v. Sanchez, 389 Fed. Appx. 378, 380, No. 09-20063, 2010 WL 3119482, *2 (5th Cir. Aug. 9, 2010). The Fifth Circuit disagreed and concluded,

Sanchez mischaracterizes the basis of the findings. The record shows that he assented to the facts in the PSR, including those facts about his prior conviction. "[R]eliance on a defendant's admission of facts that are contained in the PSR is permissible" to support a guideline enhancement. [ U.S. v. Ramirez, 557 F.3d 200 (5th Cir. 2009).]

Sanchez, 2010 WL 3119482 at *2. See also U.S. v. Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir. 2010)(when a defendant does not object to a PSI's factual summary of a prior qualifying conviction, the district court is entitled to rely on that summary without hunting for supporting documentation; "There is no reason to go digging for a state-court indictment if the parties agree on what it says."); U.S. v. Beckles, 565 F.3d 832, 843-44 (11th Cir. 2009)(where no proper objection is made to the PSR's factual statements, the facts are deemed undisputed and "the sentencing court [may] rely upon them without error even if there is an absence of supporting evidence."); U.S. v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006)("[A] failure to object to allegations of fact in a PSI admits thosefacts for sentencing purposes."). Sanchez did not file a petition for certiorari, and his conviction became final on November 8, 2010.

In his § 2255 motion, Sanchez asserts three claims of ineffective assistance of counsel at sentencing: (1) regarding the 16-level enhancement, he complains that counsel failed to contest it, that his 1999 conviction in Texas for Delivery of Controlled Substance is not a "drug trafficking offense" for purposes of the adjustment, and that Sanchez did not qualify for the adjustment because he actually served less than a year imprisonment on the conviction; (2) counsel failed to object to his criminal history assessment because the "recency" provision⁶ was amended (i.e.,deleted) in November 2010, and now gives him a Criminal History category III, not IV; and (3) Counsel did not argue for departure due to collateral consequences of alienage.

The Sixth Amendment guarantees a defendant the right to have counsel present at all "'critical' stages of the criminal proceedings" against them. Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012). The Sixth Amendment right to counsel extends to the plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012), citing Missouri v. Frye, 132 S. Ct. at 1405, and Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). Moreover, the two-prong test under Strickland v. Washington, 466 U.S. 668 (1984), "'applies to challenges to guilty pleas based on ineffective assistance of counsel.'" Id., quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985).

To establish that counsel was ineffective, the defendant must prove: (1) "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," Strickland, 466 U.S. at 687 (the "performance" prong), and (2) "that the deficient performance prejudiced the defense" (the "prejudice" prong). Id. The reviewing court need not consider both prongs if the court finds that the defendant has failed to prove either. Id. For the deficient performance prong, counsel's performance must be examined "on the facts of the particular case, viewed as of the time of counsel's conduct" andthe defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured according to "prevailing professional norms." Id. at 690, 688. To prove that trial counsel's deficient performance prejudiced the defense, the defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of a criminal trial]." Id. This heavy burden requires a "substantial," not merely a "conceivable," likelihood of a different result. Harrington v. Richter, 131 S. Ct. 770, 787 (2011); see also Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011). In deciding whether the result would have been different, "a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695; Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012), cert, denied, _______ S. Ct. _______, No. 12-7258, 2011 WL 598586 (Feb. 19, 2013). "An error by counsel, even if professionally unreasonable does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691.

Generally if a convicted defendant moving to vacate fails to raise a claim on direct appeal, he may not raise it on collateral review unless he shows cause and prejudice or that he is actuallyinnocent. U.S. v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012). "[I]neffective assistance of counsel claims are ordinarily brought for the first time on collateral review because of the difficulty of compiling an adequate record by the time of direct appeal." U.S. v. Gaudet, 81 F.3d 585, 589 n.5 (5th Cir. 1996). They are not subject to the usual procedural default rule, but must be brought within the one-year limitations period for § 2255 motions. Scruggs, 691 F.3d at 669.

In the context of a guilty plea, the Supreme Court and the Fifth Circuit have held that a defendant must demonstrate that counsel provided ineffective assistance and that but for counsel's errors, the defendant would not have pleaded...