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United States v. Roybal

United States District Court, D. New Mexico

March 24, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
CHRISTOPHER ROYBAL, Defendant/Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION [1]

          LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE.

THIS MATTER is before the Court on Defendant/Movant's (hereinafter “Defendant”) § 2255 motion [Doc. 1], [2] filed on August 15, 2016. In his motion, Defendant claims that his trial counsel was ineffective for failing to file motions to suppress evidence and motion to compel discovery (Doc. 1 at 4-5), and for failing to object to a monetary judgment and sentencing enhancements (id. at 7-8). Plaintiff/Respondent (hereinafter “the Government”) filed a response to the Section 2255 motion on September 26, 2016 [Doc. 6], and, on October 17, 2016, Defendant filed a supplemental memorandum of law in support of his § 2255 motion [Doc. 7]. On November 2, 2016, this case was reassigned to the undersigned as the pretrial judge (Doc. 8), and, on March 10, 2017, United States District Judge James O. Browning referred the claims raised in this case to the undersigned for proposed findings and a recommended disposition, and a hearing, if necessary (Doc. 9). Having considered the motion, response, supplemental memorandum, relevant law, and the record in this case and in Defendant's underlying criminal case contained in Case No. CR-12-3182, the undersigned recommends, for the reasons set forth below, that the claims raised in Defendant's § 2255 motion [Doc. 1] be DENIED, and that Case No. CIV-16-932 be DISMISSED with prejudice.

         The Court finds that an evidentiary hearing is unnecessary because Defendant's motion and the record of this case conclusively show that Defendant is entitled to no relief. The Court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Therefore, no evidentiary hearing will be held.

         Factual and Procedural Background

         On February 25, 2015, Defendant entered into a plea agreement with the Government (Cr.Doc. 799), under which Defendant pled guilty to counts 1, 37, 38, 39, and 40 of a 63-count Second Superseding Indictment (Cr.Doc. 626). In the plea agreement, the Government and Defendant agreed to a specific sentence of 168 months pursuant to Federal Rule of Civil Procedure 11(c)(1)(C). [Doc. 799 at 8]. In exchange for this specific sentence, Defendant agreed, inter alia, to plead to the above-listed counts and to waive his right to appeal his conviction and sentence, including any fine and order of restitution, as well as collateral attack pursuant to 28 U.S.C. § 2255, except on the issue of defense counsel's ineffective assistance. See Id. at 11-12. The counts to which Defendant pled guilty are: (1) conspiracy to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. § 846; (37), (38), and (39) conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h); and (40) laundering of monetary instruments in violation of 18 U.S.C. § 1956(a)(3)(B). [Cr.Doc. 799 at 2]. On July 28, 2015, the Court sentenced Defendant to a total of 168 months in prison, with a total of five years of supervised release. [Cr.Doc. 1025 at 3-4]. Defendant timely filed his § 2255 motion on August 15, 2016.[3] [Doc. 1].

         Discussion

         In his motion, Defendant claims that his counsel was ineffective for: (1) failing to file a motion to suppress and failing to move to compel discovery related to “the Government's possible unauthorized use of a ‘StingRay' cell-site simulator that was used to gather evidence against the Defendant” (Doc. 1 at 4); (2) “failing to file a motion that ensured Defendant's Fourth Amendment rights were not violated when investigators used a warrantless [Global Positioning System] GPS device on [Defendant's] vehicle in 2010” (id. at 5); (3) failing to object to the monetary judgment of $186, 000 (id. at 7); and (4) failing to object to a “leadership role enhancement and relevant conduct drug quantities that were incorrectly attributed to the Defendant, ” which “result[ed] in an i[m]properly calculated base offense level and guideline range” (id. at 8).

         In response, the Government states that “the Federal Bureau of Investigation conducted a long-term wiretap investigation of a drug trafficking and money laundering organization run by [Defendant] in central and northern New Mexico.” [Doc. 6 at 1]. The Government contends that Defendant “fails to allege which phone was [the] subject of the [cell-site simulator] interception and how the cell-site simulator led to such interception.” Id. at 5. The Government also contends that “[D]efendant fails to provide any nexus between the use of the cell-site simulator and the evidence to which he would have sought suppression, ” and fails to show that a motion to suppress would have been successful. Id. Similarly, with regard to Defendant's claim that his counsel was ineffective for failing to move to suppress the results of a tracking device, the Government contends that Defendant “alleges no facts as to which evidence such a motion to suppress pertained, ” and “fails to state the effect of such motion” or “how the hoped-for result would have benefited him.” Id. The Government, therefore, contends that Defendant has failed to show that his counsel was ineffective for failing to file these motions to suppress, and states that “filing such motions may have prevented [Defendant's counsel] from securing the beneficial plea offer received by [D]efendant.” Id. at 6.

         Next, the Government contends that Defendant's counsel was not ineffective for failing to object to the money judgment in the amount of $186, 000 because Defendant agreed to a money judgment in this amount in the plea agreement. Id. The Government notes that Defendant's counsel “effectively reduced [D]efendant's exposure with respect to the money judgment by just shy of $4 million.” Id. Finally, the Government disputes Defendant's claim that his counsel was ineffective for failing to object to Defendant receiving a leader/organizer enhancement and the inclusion of relevant conduct regarding marijuana distribution. Id. at 7. The Government contends that Defendant agreed to the leader/organizer enhancement in the plea agreement (see id., citing Cr.Doc. 799 at 9), and that Defendant's counsel “did, in fact, succeed in getting her objection sustained with respect to relevant conduct on several of the money laundering counts” (id., citing Cr.Doc. 1016). The Government contends that “[t]he remaining marijuana counts did nothing to affect [D]efendant's Guidelines range, ” and notes that “even with the assessment for leader/organizer and the inclusion of the marijuana distribution as relevant conduct, [D]efendant received a sentence which was 42 to 94 months less than the advisory Guidelines sentence.” Id.

         In Defendant's supplemental memorandum, he states that, “[i]n 2010, the FBI conducted an investigation into the activities of Luis Villa and Hugo Chavez in which wiretaps were used.” [Doc. 7 at 3]. Defendant states that it was discovered that the affiant in that case, Agent Jeremy Clegg, had cut and pasted facts of an earlier, unrelated investigation into an affidavit in support of a search warrant for Villa and Chavez, and that, as a result of the flawed wiretap investigation, the Government moved to dismiss their case against Chavez and his co-conspirators. See Id. at 3 and 5. Defendant contends that it was during the Chavez wiretap investigation that the FBI learned that Defendant was working with Chavez, and began tracking Defendant's car. See Id. at 4-5. Defendant contends that “[t]he [G]overnment should not be able to benefit from the unconstitutional acts from the [Chavez] investigation by using information gather [sic] from that investigation in this case.” Id. at 15. In addition, Defendant states that “[t]he [G]overnment makes no reference to authorization ever being granted for the use of the stingray device” (id. at 12), and contends that “the [G]overnment's unauthorized use of a stingray device clearly violates the principles of the Fourth Amendment of the United States Constitution, ” and that “Defense counsel should have moved to suppress what is a clear constitutional violation” (id. at 16).

         In evaluating an ineffective assistance of counsel claim, an attorney's performance is measured by the two-prong standard established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To prevail on an ineffective assistance claim under the Strickland standard, Defendant must show that (a) his attorney's performance fell below an objective standard of reasonableness, and (b) he was prejudiced by the attorney's deficient performance. Id. at 687. Both showings must be made to satisfy the Strickland standard. Id. To demonstrate unreasonable performance, Defendant must show that his attorney made errors so serious that his performance could not be considered “reasonable[] under prevailing professional norms.” Id. at 688. To demonstrate prejudice, Defendant must show a reasonable probability, “sufficient to undermine confidence in the outcome, ” that the result of the proceeding would have been different but for his attorney's alleged unprofessional errors. Id. at 694. The Court does not have to address both prongs of the Strickland standard if Defendant makes an insufficient showing on either one of the prongs. Id. at 697. The Strickland analysis applies to plea proceedings. See Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that the Strickland test applied to challenges to guilty pleas based on ineffective assistance of counsel). In the context of guilty pleas, to show prejudice under Strickland, the defendant must show “a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012) (citation and internal quotation marks omitted); see also United States v. Hamilton, 510 F.3d 1209, 1216 (10th Cir. 2007).

         1. Stingray Device

         Defendant's fist claim is that his counsel was ineffective for failing to file a motion to suppress or a motion for discovery related to the use of a “stingray” device. [Doc. 1 at 4]. Defendant contends that the Government used this device “to determine that the Defendant was in control of an additional cell phone that was not the target phone, and to gather phone numbers and information against the Defendant and his co-defendants, which ultimately leg [sic] to the interception of 716 phone calls and 186 text messages.” Id.; see also [Doc. 7 at 12] (stating that the device led to the interception of 716 phone calls and 187 text messages). In determining whether counsel's performance falls below an objective standard of reasonableness, “counsel should be strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” United States v. Rushin, 642 F.3d 1299, 1307 (10th Cir. 2011) (citation and internal quotation marks omitted). “Strategic or tactical decisions on the part of counsel are presumed correct, unless they were completely unreasonable, not merely wrong, so that they bear no relationship to a possible defense strategy.” United States v. Jordan, 516 F. App'x 681, 682 (10th Cir. 2013) (unpublished) (citation and internal quotation marks omitted). Here, Defendant fails to state what evidence was allegedly gathered by the stingray device, and fails to set forth any grounds upon which his counsel could have filed a motion to suppress evidence gathered from the use of this device. Instead, Defendant merely states that “the possible warrantless use of such a device violates the Fourth Amendment” (Doc. 1 at 4, emphasis added), that “[t]he use of this ‘stingray' device has caused quite a controversy across the country due to the potential Fourth Amendment violations and privacy issues that result from its use” (Doc. 7 at 11), and that “it is unclear if the agents attained a warrant for the use of the stingray” (id. at 15). Accordingly, since Defendant's contention that the Government used the stingray device in violation of his Fourth Amendment rights is based on speculation that the device was used without a warrant, the Court finds that Defendant has failed to show that his counsel's failure to file a motion to suppress evidence from the stingray device was deficient. The Court also finds that Defendant's contention that his counsel was ineffective for failing to move to compel discovery related to the stingray device (see Doc. 1 at 4) is without merit because Defendant's counsel did file a motion to compel discovery, specifically wiretap and other electronic surveillance evidence (see Cr.Doc. 334 at 26-33). In addition, the Court finds that Defendant fails to show any prejudice from his counsel's alleged deficient performance.

         Defendant neither states nor provides any support for a finding that, absent his counsel's allegedly deficient performance, he would not have pleaded guilty and would have insisted on going to trial. See Missouri, 132 S.Ct. at 1409 (explaining that, to show prejudice under Strickland, the defendant will have to show “a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have ...


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