Velazquez-Malave v. United States
| Decision Date | 16 June 2020 |
| Docket Number | Civil No. 17-1493 (ADC) |
| Parties | FELIX M. VELAZQUEZ-MALAVE Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
[Related to Crim. Nos. 13-426, 15-540 (ADC)]
Petitioner Félix M. Velázquez-Malavé ("Velázquez" or "petitioner") filed a pro se petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, an amended 2255 motion and several supplemental filings. ECF Nos. 1, 5, 6, 8, 10, 11. The government filed an opposition. ECF No. 22. For the reasons explained below, the Court DENIES the petition and petitioner's claims are DISMISSED with prejudice.
On September 4, 2013, a Grand Jury returned a two-count Superseding Indictment charging petitioner and ten other defendants with conspiracy to possess with intent to distribute and distribution of a controlled substances (Count One) and possession of firearms in furtherance of a drug trafficking crime (Count Two). Crim. No. 13-426-11, ECF No. 74. Petitioner remained a fugitive until his arrest on January 2, 2014. See id. at ECF Nos. 206, 207. At the time of his arrest, Puerto Rico Police officers seized from him heroin, marihuana and a loaded Glock pistol with fifteen rounds of ammunition. See id. at ECF No. 396.
On August 26, 2015, a one-count Information was filed in Criminal Case 15-540, charging petitioner with possessing with intent to distribute heroin. Crim. No. 15-540 (ADC), ECF No. 2. That same day, the parties filed a Plea Agreement wherein petitioner agreed to plead guilty to Count Two of the Superseding Indictment and Count One of the Information; the parties agreed the government would dismiss Count One of the Superseding Indictment. Crim. No. 15-540 (ADC), ECF No. 4. The parties further stipulated that petitioner possessed with intent to distribute at least 80 grams, but less than 100 grams of heroin.
On November 30, 2015, petitioner was sentenced to 114 months as to Count Two and 37 months as to Count One of the Information, to be served consecutively, as recommended by the parties within the Plea Agreement. Crim. No. 15-540 (ADC), ECF No. 13. On December 11, 2015, petitioner filed a notice of appeal which he later voluntarily dismissed. Appeal No. 16-1031.
The Court liberally construes pro se petitions, though "pro se status does not insulate a party from complying with procedural and substantive law." Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). To succeed on a claim that counsel was constitutionally ineffective, "[p]etitioner must first show that his counsel's 'performance was deficient,' and he must then show that 'the deficient performance prejudiced the defense.'" Williams v. United States, 858 F.3d 708, 715 (1st Cir. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). "The first requirement necessitates a demonstration that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. (citation and internal quotation marks omitted). Nonetheless, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. (citations and internal quotation marks omitted). The prejudice requirement, meanwhile, necessitates a demonstration of "a reasonable probability that, but for counsel's errors, [petitioner] would not have pleaded guilty and would have insisted on going to trial." Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (citation and internal quotation marks omitted). Failure to prove either prong of an ineffective assistance claim is fatal to the claim. United States v. Caparotta, 676 F.3d 213, 219-20 (1st Cir. 2012).
The petitioner bears a heavy burden of proof in this regard. See Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996). However, "a reviewing court need not address both requirements if the evidence as to either is lacking." Sleeper v. Spencer, 510 F.3d 32, 29 (1st Cir. 2007). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697.
Via his first timely motion, petitioner seeks relief under section 2255, asserting that counsel was ineffective during pre-sentencing and sentencing by failing to object to the Pre-Sentence Report ("PSR"), and by not raising arguments based on Amendments 790 (drug quantity) and 794 (role in the offense) to the U.S. Sentencing Guidelines (USSG), which came into effect on November 1, 2015, approximately a month prior to his sentencing. ECF No. 1. According to petitioner, he would have received a more favorable sentence had his counsel duly objected to the PSR which was drafted based upon the 2014 Sentencing Guidelines. Id.
As the government points out, petitioner does not request to have his guilty plea vacated nor contends that but for counsel's alleged errors he would not have pleaded guilty. ECF No. 22. Instead, he proffers that but for counsel's errors, he would have been sentenced to a lower term. Petitioner's allegations, however, are misplaced.
A review of the record shows that petitioner stipulated to possessing with intent to distribute at least 80 grams, but less than 100 grams of heroin. Crim. No. 15-540, ECF No. 4. Furthermore, during petitioner's sentencing hearing, the Court expressly applied the November 1, 2015 edition of the USSG, not the 2014 USSG as petitioner proffers. See Crim. No. 13-426, ECF No. 486 at 12. This clearly defeats any prejudice argument. Nonetheless, as the government correctly notes, neither Amendment 790 nor 794 were relevant to petitioner's sentencing.
Amendment 790 to Section 1B1.3(a)(1)(B) of the USSG made certain revisions to the sentencing guidelines applicable "to clarify the use of relevant conduct in offenses involving multiple participants," and establishing a three-step analysis for the court to determine whether a defendant is accountable for the conduct of others in a jointly undertaken criminal activity.1 Petitioner hints at the possibility that an application of the three step analysis would haverendered a lower sentencing range. He does not however provide any developed argument showing how Amendment 790 would have yielded a more favorable guideline range. As the government correctly notes, at sentencing for his conviction under Count One of the Information (§841(a)(1) & (b)(1)(C)) petitioner was sentenced pursuant to the 2015 USSG and only held responsible for the drugs that he admittedly possessed when arrested as a fugitive for the overall conspiracy; he was not held accountable for the total amount of drugs distributed during the span of the drug conspiracy. See Crim. No. 13-426, ECF No. 486 at 12. Therefore, any objections by counsel under Amendment 790 would have been futile.
Amendment 794 amended the commentary to U.S.S.G. § 3B1.2, which provides for a downward adjustment to the offense level provided defendant's minor or minimal role in the criminal activity by providing "additional guidance to sentencing courts in determining whether a mitigating role adjustment applies." U.S.S.G. app. C, amend. 794 (2015). Essentially, it added a list of factors that a court should consider in determining whether to decrease an individual's offense level under § 3B1.2. In this regard, the record shows petitioner, nevertheless, was the sole defendant charged in the Information, precluding the applicability of a minor role reduction. The guideline is not applicable "unless more than one participant was involved in the offense." USSG § 3B1.2, cmt. n.1 (2016). Therefore, Amendment 794 was not applicable to petitioner's case and trial counsel cannot be deemed ineffective for not raising such argument.
As it pertains to petitioner's 924(c)(1)(a) conviction, the USSG expressly provides that Amendment 794 is inapplicable to offenses under 924(c). See USSG §2K2.4(b). Specifically, Section 2K2.4(b) of the USSG provides that for a defendant convicted of violating section 924(c), Indeed, this Court has noted that "convictions under § 924(c) are not typical guidelines cases." United States v. González-Román, 115 F. Supp. 3d 271, 280 (D.P.R. 2015). There is no question that the guideline sentence in this case was the statutory minimum sentence of 60 months. Consequently, petitioner could not have been sentenced to a lesser term for his conviction on Count Two of the Superseding Indictment. The Plea Agreement recommended such statutory minimum and petitioner was sentenced to 60 months as recommended. Consequently, petitioner's claims that application of Amendments 790 and 794 would have somehow led to a lower sentence lacks merit. Since trial counsel cannot be deemed ineffective for failing to pursue meritless arguments, petitioner's claims fail. Strickland, 466 U.S. at 689-90.
Likewise, the Court agrees with the government's contention that to the extent that petitioner's claims are premised on the unreasonableness of his sentence or misapplication of the Sentencing Guidelines, such challenges are not cognizable on a 2255 motion. It is well settled that "a motion under § 2255 is not a substitute for direct appeal and presents a higher standard that a petitioner must clear to bring a claim." Alicea-Torres v. United States, 455 F. Supp. 2d 32, 42 (citing United States v. Frady, 456 U.S. 152, 164 (1982)). Under 28 U.S.C. § 2255, a district court may grant relief to a prisoner in custody under a sentence imposed by a federal district court only "upon the ground 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...
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