Lopez-Huerta v. United States

2 [FILED] . : E . 3 oo | | JUN = 4 | soutien SERIES [7] 8 UNITED STATES DISTRICT COURT . □ 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 || ANA LORENA LOPEZ-HUERTA, | Case No.: 18-cv-02773-BEN 12 II. Movant, 17-cr-01072-BEN-2 13 |] v. : ORDER DENYING MOTION TO - uMapsratesorawenca, | YACATE:SETASIDE.OR 15 Respondent.| U.S,C. § 2255 [16] 17 | . 18 On February 12, 2018, following a guilty plea, Movant Ana Lorena Lopez-Huerta 19 || (“Movant”) was sentenced to eighty-months in custody. As part of her plea agreement, 20 || she waived her right to appeal or collaterally attack her sentence. She now moves to 21 ||reduce her sentence pursuant to 28 U.S.C. § 2255 . Because Movant waived her right to challenge her sentence and because the record fails to support her claims, the Court 23 || DENIES her Motion. [24] . 26 || /// 27 : 28 || /// : 18-cv-02773-BEN 1 BACKGROUND. □ 2 On April 26, 2017, Movant was indicted for conspiring to distribute 3 ||methamphetamine and distribution of methamphetamine. (Doc. No. 1.)! On August 15, 4 ||2017, Movant reached a plea agreement with the Government. As part of the plea 5 |jagreement, the Government agreed to allow Movant to plead guilty to count six of the 6 |lindictment, and to dismiss the remaining counts at sentencing. (See Plea Agreement, 7 No. 46.) As part of the plea agreement, Movant waived her right to appeal or 8 ||collaterally attack her sentence with limited exceptions: Defendant waives (gives up) all rights to appeal and to collaterally attack 10 every aspect of the conviction and sentence, including any restitution order. The only exceptions are: (1) Defendant may appeal a custodial sentence 11 above the high end of the guideline range recommended by the Government D at sentencing (if USSG § 5G1.1(b) applies, the high end of the range will be the statutorily required mandatory minimum sentence), and (2) Defendant 13 may collaterally attack the conviction or sentence on the basis that 14 Defendant received ineffective assistance of counsel. 15 § XL 16 At the time Movant pled guilty, she stated under oath that she had not taken any 17 || drugs, alcohol or medication in the last 48 hours that affected her ability to understand 18 || what she was doing. Magistrate Judge Ruben B. Brooks also confirmed that Movant had 19 || given up her right to collateral attack as part of the plea agreement. 20 The Probation Officer prepared a Presentence Report (Doc. No. 64) which 21 calculated Movant’s base offense level to be 34 and her guideline range to be 120—135 22 ||months, with a recommendation of 120-months in custody. /d. §f 11 1-112. 23 In view of the plea agreement, the Government filed a Sentencing Summary Chart 24 ||recommending the Court find the base offense level to be 32 but reduced the total offense [25] 26 || ———__________ . [27] All Doc, No. references are to the criminal case, 17-cr-1072, unless otherwise 28 || noted. 18-cv-02773-BEN 1 to 27 (5-level departure based on the Governments recommendation of safety valve 2 an acceptance of responsibility adjustment) with a resulting guideline range of 70 to. _3 ||87-months. (Doc. No. 99.) The Government ultimately recommended 80-months in 4 || custody. Id. □ 5 Defense counsel filed a Sentencing Summary Chart agreeing with these 6 {calculations but recommending a'sentence of 37-months. (Doc, No. 98.) Defense 7 j| counsel also filed a Sentencing Memorandum arguing that Movant had a drug problem 8 || which led her to commit the offense. Moreover, the fact that she was responsible for || supporting herself, several of her own children, and 3 young grandchildren only further 10 |/complicated her situation. (Doe. No. 100 at 3.) 1] Ultimately, the Court adopted the Government’s calculation of the sentencing 12 guidelines as 70. to 87-months. (Sentencing Transcript 12:1-2.) The Court sentenced 13 || Movant to a mid-range sentence of 80-months in custody. Id. 12:3-5. Counsel confirmed 14 Movant had waived her right to collateral attack. Jd, at 13:7. 15 ‘Movant now moves for a reduction in her sentence pursuant to 28 U.S.C, § 2255, 16 || arguing: (1) misrepresentation by counsel; (2) first time offender; and (3) she suffers 17 || from high blood pressure, high cholesterol, and severe depression. (Doc. No. 122.) The 18 Government has not filed an opposition to the Motion. ‘19 LEGAL STANDARD 20 Under § 2255, a movant is entitled to relief if the sentence: (1} was imposed in 21 || violation of the Constitution or the laws of the United States; (2) was given by a court 22 || without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by 23 law: or (4) is otherwise subject to collateral attack. Title 28 U.S.C. § 2255 ; United States 24 v. Speelman, 431 F.3d 1226 , 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed 25 ||to state a claim, or has “no more than conclusory allegations, unsupported by facts and 26 ||refuted by the record,” a district court may deny a § 2255 motion without an evidentiary 27 \|hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986). That is the case here. || 3 □ 18-cv-02773-BEN DISCUSSION? 2 Reduction of Sentence . 3 As an initial matter, except for her claim of ineffective assistance of counsel, 4 || Movant knowingly and voluntarily gave up her right to appeal or collaterally attack her 5 sentence as part of the plea agreement. (Plea Agreement § XI.) Such a waiver 1s 6 jlenforceable. United States y. Navarro-Botello, 912 F.2d 318, 319 (9th Cir. 1996). □ 7 ||(holding a waiver of appeal is enforceable as part ofa negotiated plea agreement if it is 8 || made voluntarily and knowingly); United States v. Abarca, 985 F.2d 1012, 1013 (9th Cir. 9 || 1993) (same with respect to collateral attack). On that ground alone, her Motion to 10 reduce the sentence fails as to grounds two and three. 1] Moreover, all three grounds Movant asserts in support of her Motion lack merit. 12 || The Court notes that all three grounds were addressed at sentencing either in the 13 || Presentence Report, by her attorney (in his Sentencing Memorandum), or both. Asto □ 14 || ground one, Movant initially faced a mandatory minimum sentence ranging from 1015 || years to life in prison if convicted. Had counsel not successfully negotiated a plea offer 16 || with the Government, 120-months would have been the minimum mandatory sentence. 17 {/Instead, Movant received great benefit from entering into the plea agreement that her 18 || attorney obtained from the government. As to ground two, the Court was also informed | 19 ||that Movant was a first-time offender by defense counsel This fact was also reiterated 20 || in the Presentence Report. (Presentence Report {ff 50-54.) Defense counsel also argued 21 ||that Movant was a single mother caring not just for her children, but also multiple 22 || grandchildren. As to ground three, Defense Counsel noted that this stress likely 23 || contributed to her health issues (including depression), drug (methamphetamine) abuse, _ 24 || past criminal activities, and knowledge of the unfortunate consequences she now faces. [25] 26 . 7 2 The Court determines there is no need for an evidentiary hearing. 3 “MR. CARRIEDO: ‘She had no record. None whatsoever.” (Sentencing 28 || Transcript, 3:4.) 18-0v-02773-BEN 1 || because of pleading guilty for those activities. Thus, all of the factors now raised in this 2 Motion were raised and considered by the Court at sentencing. To the extent that Movant 3 || argues that her attorney failed to mention any of these concerns at sentencing, the record 4 otherwise. — 5 || II. Ineffective Assistance of Counsel 6 To the extent Movant is arguing that her attorney’s representation was ineffective, 7 argument must also fail. Even in a claim of ineffective assistance of counsel □□□□ | 8 || guilty plea, the defendant must meet the Strickland test; that is, she must show first, “that 9 || counsel’s assistance was not within the range of competence demanded of counsel in 10 || criminal cases,” and second, that she suffered actual prejudice because of this |jincompetence. Lambert v. Blodgett, 393 F.3d 943, 979-80 (9th Cir. 2004); see also Hill 12 Lockhart, 474 U.S. 52, 57-58 (1985). □ 13 “A deficient performance is one in which counsel made errors so serious that [ Jhe 14 || was not functioning as the counsel guaranteed by the Sixth Amendment.” Jaea v. Sunn, 15 F.2d 861, 864 (9th Cir. 1986): (citing Strickland v. Washington, 466 U.S. 668 , 687 16 ||(1984)). “Review of counsel’s performance is highly deferential and there is a strong 17 || presumption that counsel’s conduct fell within the wide range of reasonable 18 ||representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 19 |} 1987). The court should not view counsel’s actions through “the distorting lens of 20 hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) (quoting 21 || Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir, 1989), vacated on other grounds in 22 || Angelone v. Deutscher, 500 U.S. 901 (1991)). To satisfy the second “prejudice” prong in 23 guilty plea case, “defendant must show that there is a reasonable probability that, but 24 || for counsel’s errors, [s]he would not have pled guilty and would have insisted on going to 25 |jtrial.” Hill, 474 U.S. at 59 . Movant fails to establish either prong of the ineffective 26 assistance of counsel test in this case. [28] I8v-02773-BEN l To begin, Movant claims “[ml]isrepresentation by counsel,” alleging “he [Mr. 2 || Carriedo] didn’t do much to represent me like he should have.”* (Doc. No. 122 at 3.) 3 || Movant even claims Judge Benitez “stated that the day I [she] got sentenced.” /d. 4 || However, Movant identifies no specific evidence to support this claim. This general 5 |} allegation lacks important specifics and evidentiary support. Moreover, review of the □ 6 |i sentencing transcript indicates just the opposite. Specifically, the Court found Mr. 7 || Carriedo’s colloquy helpful.> These comments, combined with the fact that Movant 8 || faced considerably greater time in custody had it not been for the negotiated plea 9 agreement Mr. Carriedo zealously advocated, refutes the claim. Second, the Court 10 accepted Mr. Carriedo’s claim Movant was a first-time offender when it acknowledged 11 ||Movant had a Criminal History Score of “I”. (See Doc. Nos. 98-99.) Finally, the Court 12 || was aware of Movant’s health problems as Mr. Carriedo mentioned them at the 13 Sentencing Hearing. The sentencing transcript reflects Mr. Carriedo advocated for a 14 downward departure to 37-months, based in part on Movant’s health conditions and the 15 services she would be ineligible to receive due to her status as an illegal alien with a 16 || criminal conviction. Movant received a greatly reduced sentence as part of her plea 17 || agreement. 18 It bears noting that Movant was initially facing at least a ten-year mandatory 19 |}minimum sentence, with the possibility of life in prison. Mr. Carriedo negotiated a deal 20 which that sentence was reduced by at least three years. As discussed supra, one of 21 the reasons considered by the Court in imposing the sentence was Movant’s health issues 22 || which had been documented in the Presentence Report and addressed by Mr. Carriedo at 23 . [24] 45 4 “Movant claims Judge Benitez stated that ‘{m]y attorney asked for a lesser sentence, but the judge refused because he felt that my public defender [sic] [Roberto 26 || Corrido] didn’t do much on my case’”. (Doc. No. 122 at 3.) © 7 5 “THE COURT: ‘I got it. All right. Thank you. Thank you, Mr. Carriedo. Yeah, I appreciate your comments, Mr. Carriedo. They’re — as usual, they’re concise, and 28 || they’re — they’re cogent.’” (Sentencing Transcript 10:9-13.) 18-cv-02773-BEN 1 || the sentencing hearing. Thus, Movant fails to show how further focus on her health 2 issues by Mr. Carriedo would have likely changed the outcome in this case. 3 To sum up, there is little to overcome the presumption that her attorney’s 4 || performance was effective. Hendricks, 70 F.3d at 1036 . Even assuming, for the sake of 5 argument, that the performance prong was established; Movant has not viably established 6 prejudice prong as required by Hill, 474 U.S. at 56-57 . Moreover, Movant fails to 7 ||make any showing that she would not have pled guilty and would have insisted on going 8 || to trial had she known she would receive a higher sentence or any other reason. Both 9 prongs must be satisfied for relief. Neither prong has been established. 10 CONCLUSION 1] For the reasons stated above, the Court DENIES Movant’s Motion. Second 12 thoughts are not grounds for a motion to vacate or modify a sentence. _ Additionally, a court may only issue a certificate of appealability where the movant 14 ||has made a “substantial showing of the denial of a constitutional right,” and reasonable 15 |{jurists could debate whether the motion should have been resolved differently, or that the 16 || issues presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 17 ||U.S. 322, 335 (2003). This Court finds that Movant has not made the necessary showing. 18 |/A certificate of appealability is therefore DENIED. ITISSOORDERED. 20. Ads 21 ||Dated: June lg MML i tA 22 / Ka Z f. Beez United States District Judge 23 . [26] 27 □ |8-ev-02773-BEN-