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United States v. Archuleta

United States District Court, D. New Mexico

June 28, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
RICHARD A. ARCHULETA, Defendant-Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

         This matter is before me on Defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Doc. 1.[1] The United States has filed a response, Doc. 13, and Defendant has filed a reply. Doc. 16. Having reviewed the briefing and being fully advised, I recommend the Motion be denied because each of its claims falls squarely within the collateral attack waiver in the plea agreement that Defendant knowingly and voluntarily entered into in this case.[2]

         I. Factual and Procedural Background

         A. The Crimes and the Charges

         On June 3, 2013, an Albuquerque Police Department (APD) officer stopped a vehicle driven by Defendant for an expired temporary license tag. PSR ¶ 13.[3] The officer arrested Defendant after learning that he was driving on a revoked license. Id. An inventory search of the vehicle yielded a loaded .38 caliber handgun, additional ammunition, and four small baggies containing a substance that field-tested positive for methamphetamine. Id. At the time, Defendant had already been convicted of the felony crimes of aggravated battery, attempted kidnaping, false imprisonment, and failure to register as a sex offender. See Indictment, Cr. Doc. 2.[4] Consequently, Defendant was charged on September 25, 2013 by a federal grand jury for possessing the firearm and ammunition as a previously-convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Id.

         Despite the pending indictment and arrest warrant, Defendant was not arrested for another ten months. On August 7, 2014, APD detectives encountered Defendant at an Albuquerque motel and arrested him. PSR ¶ 17. During a search incident to arrest, detectives discovered that Defendant was carrying a loaded .40 caliber pistol on his hip. Id. On October 7, 2014, a superseding indictment charged Defendant with possessing the firearms and ammunition seized on both occasions. Cr. Doc. 18. Count 1 involved the firearm and ammunition seized in June 2013, and Count 2 did the same for those recovered in August 2014. Id.

         B. The Form 13 Presentence Report

         After the Court permitted Defendant's first counsel to withdraw based on a breakdown in attorney-client communication, a magistrate judge appointed Marc Grano, Esq., to represent Defendant. Cr. Doc. 31. A Form 13 PSR was disclosed to the parties on December 4, 2014 to assist them in understanding Defendant's sentencing exposure for plea negotiation purposes. The pre-plea PSR recommended that Defendant's adjusted offense level should be 30 before taking into account any credit for acceptance of responsibility. See Form 13 PSR ¶ 25. This computation began with a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2), in view of Defendant having committed the felon-in-possession offenses after sustaining at least two convictions for felony crimes of violence. Id. ¶ 19. The PSR recommended that an additional two levels be added under § 2K2.1(b)(4)(A), by virtue of the firearm in Defendant's possession in August 2014 having been stolen. Id. ¶ 20. The PSR further recommended that an additional four levels be added under § 2K2.1(b)(6)(B) because the Defendant possessed the firearm in June 2013 in connection with the felony methamphetamine evidence found in the same console of the vehicle. Id. ¶ 21. The PSR also calculated Defendant to be in Criminal History Category VI. Id. ¶ 41. Ultimately, the PSR computed Defendant's guideline sentencing exposure (without contemplating any credit for acceptance of responsibility) as 168-210 months. Id. ¶ 51. [5]

         C. The Plea Agreement

         Armed with the guidance of the Form 13 PSR, the parties then entered into a written plea agreement. Cr. Doc. 47. In relevant part, the plea agreement required Defendant to plead guilty to Count 1 in exchange for the dismissal of Count 2. In addition, the parties stipulated that Defendant should receive a reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility. Cr. Doc. 47 ¶ 8a. The United States further agreed “to recommend a sentence no greater than ninety-six months (96) months [sic] or eight years imprisonment.” Id., ¶ 8c. The parties otherwise reserved their rights to litigate any other aspect of the Defendant's sentence including the applicability of any other sentencing guideline provision. Id. ¶ 8d.

         Importantly, the agreement featured a section entitled “WAIVER OF APPEAL RIGHTS[, ]” which because of its centrality to the outcome of this Motion is worth quoting in full:

The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a Defendant the right to appeal a conviction and the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant's conviction and any sentence and fine within or below the applicable advisory guideline range as determined by the Court. The Defendant specifically agrees not to appeal the Court's resolution of any contested sentencing factor in determining the advisory sentencing guideline range. In other words, the Defendant waives the right to appeal both the Defendant's conviction and the right to appeal any sentence imposed in this case except to the extent, if any, that the Court may depart or vary upward from the advisory sentencing guideline range as determined by the Court. In addition, the Defendant agrees to waive any collateral attack to the Defendant's conviction and any sentence, including any fine, pursuant to 28 U.S.C. §§ 2241 or 2255, or any other extraordinary writ, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver.

Id., ¶ 13 (emphasis added).

         As part of the plea agreement, Defendant also acknowledged that he had “carefully discussed every part of it with [his] attorney.” Id. 10. He further attested:

I understand the terms of this agreement, and I voluntarily agree to those terms. My attorney has advised me of my rights, of possible defenses, of the sentencing factors set forth in 18 U.S.C. § 3553(a), of the relevant Sentencing Guideline provisions, and of the consequences of entering into this agreement. No promises or inducements have been given to me other than those contained in this agreement. No one has threatened or forced me in any way to enter into this agreement. Finally, I am satisfied with the representation of my attorney in this matter.

Id.

         D. The Change of Plea Hearing

         Defendant pleaded guilty pursuant to this agreement on May 20, 2015. See Clerk's Mins., Cr. Doc. 48, and Plea Hr'g Tr., Cr. Doc. 66.[6] During the plea colloquy, during which Defendant answered the Court's questions under oath and subject to the penalty of perjury, he admitted that he was 38 years old and had two years of college credits. Plea Hr'g Tr. 3. He denied being under the influence of any drugs or alcohol, or having any condition that interfered with his understanding of the proceedings. Id. 3-4. He affirmed that he understood the maximum penalties, id. 4, and that the sentencing judge would consult the advisory sentencing guidelines in determining sentence. Id. 5. He further acknowledged that “[u]sually, a judge will sentence within that applicable range but there are times a judge will go above or below that range and that will be upheld so long as it is a reasonable sentence.” Id. Defendant admitted that his attorney had shared with him an estimate of the applicable range, but that the estimate could be wrong. Id. Defendant understood the parties' stipulation concerning acceptance of responsibility and the Government's agreement to recommend a prison term of 96 months, although neither provision was binding on the sentencing judge. Id. 6. He acknowledged that, apart from the parties' single stipulation and the Government's 96-month recommendation, the parties reserved their rights to assert any other position or argument with respect to what the sentence should be. Id. 7.

         As to the appeal waiver, Defendant affirmed that he understood he was waiving his right to appeal his conviction and sentence, that he had discussed it with his attorney, and that he knew the waiver would be enforced. Id. 7-8. Government counsel reiterated his recommendation of a 96-month sentence and specifically alluded to the Form 13 PSR's assessment that the adjusted guideline range exceeded the statutory maximum sentence for a single count of violating 18 U.S.C. § 922(g)(1). Id. 9. Ultimately, Defendant acknowledged that he understood every term of his agreement and affirmed that no one had made any different or additional promise besides those contained in the written agreement. Id. 9-10. He professed satisfaction with his counsel's advice and representation. Id. 12.

         After full advisement of his trial rights, id. 11-12, and Defendant's confirmation of a factual basis, id. 13-14, the court accepted his guilty plea, finding that:

[Defendant] is fully competent and capable of entering an informed plea. He's aware of the nature of the charge and the consequences of the plea, and this plea of guilty is knowing, it's voluntary and it is supported by an independent basis in fact that contains all of the elements of the offense.

Id. 14. The court and counsel then agreed that a traditional PSR would need to be prepared. Id. 14-15.

         E. The Two Post-Plea Presentence Reports

         On July 10, 2015, the Probation Office disclosed the PSR. Although it would soon be revised for reasons explained infra, this PSR also recommended the same offense level calculations as had the Form 13 PSR, except this time awarding Defendant a three-level reduction for acceptance of responsibility. See Original PSR ¶¶ 25-35. Importantly, this PSR also recommended that the offense level be increased a total of six levels for possessing a stolen firearm and possessing a firearm in connection with another felony as had the Form 13 PSR. Id. ¶¶ 26-27. An adjusted offense level of 27 and a criminal history category of VI yielded an advisory guideline range of 130-162 months. Id. ¶ 83.

         In light of the United States Supreme Court's very recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015), the Probation Office disclosed a revised PSR on August 17, 2015.[7] Recognizing that Defendant's false imprisonment conviction no longer qualified as a crime of violence under U.S.S.G. § 4B1.2(a), this PSR reduced Defendant's base offense level to 20 pursuant to § 2K2.1(a)(4)(A). PSR ¶ 25. That was the only change in the offense level computation, however, as this version of the PSR continued to recommend the same upward adjustments for possessing a stolen firearm and possessing a firearm in connection with another felony as had the two earlier PSRs. Id. ¶¶ 26-27. Giving Defendant credit for acceptance of responsibility, this PSR recommended an adjusted offense level of 23, a criminal history category of VI, and an advisory guideline range of 92-115 months. Id. ¶ 83.

         The Court originally scheduled the sentencing hearing for August 25, 2015. Cr. Doc. 49. The Court reset the hearing to September 17, 2015, after granting defense counsel's motion for additional time to review the late-disclosed PSR and otherwise prepare for sentencing. See Cr. Docs. 50 (motion to continue sentencing) and 51 (order granting same).

         F. The Sentencing Filings and Hearing

         Neither party filed objections to the PSR, but both parties filed sentencing memoranda prior to the hearing. The Government informed the Court that, although it had pledged in the plea agreement to recommend a sentence of 96 months, it had no objection to a sentence of 92 months, given that 92 months was the bottom end of the recalculated guideline range. See Cr. Doc. 52. For his part, defense counsel filed a 10-page sentencing memorandum in which he requested a downward variance from the advisory guideline range. See Cr. Doc. 53. He contended that the combination of Defendant's extraordinary family circumstances, highlighted by his wife's physical and mental conditions, Defendant's own medical condition, and Defendant's employment history should persuade the Court to arrive at a sentence lower than the 92-115 months that the PSR otherwise recommended. See id., passim.

         At the sentencing hearing, defense counsel confirmed that he had no objections to the PSR. Sntc'g Tr., Cr. Doc. 68, 4.[8] In his oral argument, defense counsel essentially repeated the themes of his sentencing memorandum, offered a mitigating explanation of his client's criminal history, and asked for a sentence beneath the recommended range. See Id. 5-11, 12-13, 16-18, 21. Again, he made no mention of either of the upward adjustments at issue in the instant § 2255 motion. When it was his turn to speak, Defendant told the Court that he was “well aware of the consequences of the federal court systems and its sentencing guidelines.” Id. 11 (emphasis added). He went on to say: “And now that I'm aware - clearly aware - of the sentencing guidelines, I can say that in the future I will not possess a firearm or ammunition.” Id. (emphasis added). He concluded by asking the Court to sentence him to “the lowest term of imprisonment possible.” Id. 12.

         The Court sentenced Defendant to 92 months in prison, the lowest end of the adjusted advisory range. Id. 23. The Court also reminded Defendant that he had waived his right to appeal. Id. 27. The Court filed its judgment on September 24, 2015. See Cr. Doc. 55.

         Having waived his right to do so, Defendant did not file a direct appeal. On August 26, 2016, however, he did file the instant § 2255 motion.

         II. ...


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