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United States v. Salazar

United States District Court, D. New Mexico

July 17, 2017




         Conrad Salazar filed a pro se amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (CV Doc. 3; CR Doc. 336.)[1] He cites three instances preceding his guilty plea and sentencing where he claims trial counsel's inaction constituted ineffective assistance. The United States filed a response. (Doc. 13.) Because his claims may be resolved on the record alone, I have not conducted an evidentiary hearing. I recommend the Court deny his motion.


         The Second Superseding Indictment charged Salazar with seven counts stemming from the firebombing of a tattoo shop, heroin distribution, and possessing a stolen handgun as a felon. (CR Doc. 67 at 1-4.) He pleaded not guilty. (CR Doc. 18 at 1.) The United States later offered him a plea agreement, which stipulated that he would plead guilty to Count 1-Conspiracy to Maliciously Damage or Destroy by Means of Fire and/or Explosive Device, in violation of 18 U.S.C. §§ 844(i) and 844(n)-and Count 7-Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1)-in exchange for a stipulated sentence of 240 months imprisonment. (CR Doc. 315 at 2, 4.) The cover letter to the plea agreement noted the alternative path forward-should Salazar reject the plea offer, the United States would seek to supersede the indictment and charge him with possessing a destructive device in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(B)(ii), which carried a mandatory minimum sentence of thirty years imprisonment. (Doc. 13-1 at 1.) The cover letter also noted that Salazar's former co-defendant, Clifford Salas, proceeded to trial on this and other charges a few months prior and was found guilty. (Id.) Salazar accepted the plea agreement. (CR Doc. 315 at 8.)

         The Presentence Report (“PSR”) considered all seven counts of the Second Superseding Indictment to calculate a guidelines imprisonment range of 188 to 235 months if Salazar was convicted at trial. (See PSR at 31.) It did not provide advisory guideline ranges for the other two permutations under consideration-i.e., Counts 1 and 7 if he pleaded guilty, or the potential new superseding indictment referenced in the cover letter if he proceeded to trial. (See PSR at 1-36.)

         The plea agreement suggests that Salazar pleaded guilty to being an armed career criminal (see CR Doc. 315 at 2, 4), but the PSR found otherwise. It did not classify him as an armed career criminal, and the imprisonment range did not include an enhancement under the armed career criminal guideline. (See PSR at 5 (“[T]he United States Probation Officer determined that defendant is not an armed career criminal”); see also PSR at 1-36 (nowhere mentioning U.S.S.G. § 4B1.2).)

         On November 24, 2015, the Court accepted the plea agreement and sentenced Salazar to 240 months imprisonment. (CR Docs. 322 at 1; 358 at 23.) The Court noted that, for Counts 1 and 7, Salazar's offense level was 28, his criminal history category was VI, and his guideline imprisonment range was 140 to 175 months as to Count I and 120 months as to Count 7. (CR Doc. 358 at 23; see also PSR at 11-13 (calculating the offense level for Counts 1 and 7 but not the criminal history category or guideline imprisonment range).) Judgment was entered the following day, on November 25, 2015. (CR Doc. 324.)

         About seven months later, on June 13, 2016, Salazar timely filed his amended motion under § 2255 alleging ineffective assistance of counsel. See 28 U.S.C. § 2255(f)(1) (“A 1-year period of limitation shall . . . run from . . . the date on which the judgment of conviction becomes final.”).


         To succeed on an ineffective assistance claim, a defendant must show (1) that his lawyer's performance was deficient, i.e., it fell below the level expected from a reasonably competent attorney in criminal cases, and (2) that he suffered prejudice, i.e., there is a reasonable probability that the result would have been different but for his lawyer's unprofessional errors. United States v. Cruz, 774 F.3d 1278, 1284-85 (10th Cir. 2014) (citing Strickland v. Washington, 466 U.S. 668, 687, 696 (1984)). “To show prejudice (the second prong) in the context of a plea agreement, [the defendant must] convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Bonney v. Wilson, 817 F.3d 703, 712 (10th Cir. 2016) (citing Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (internal quotation omitted)). “In other words, in order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); United States v. Weeks, 653 F.3d 1188, 1201 (10th Cir. 2011) (quoting Hill). “[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697.

         Because Salazar is pro se, [2] I construe his pleadings liberally and hold them to a less stringent standard than is required of a party represented by counsel. See Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 2008) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Liberal construction requires courts to make some allowance for a pro se litigant's “failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at 1110) (alterations omitted). However, “the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Id.

         Salazar's first claim relates to the sentence enhancements in the PSR under U.S.S.G. § 2K2.1 for Count 7-felon in possession of a stolen firearm. (See Doc. 3 at 4.) He argues that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), invalidated the residual clause of U.S.S.G. § 2K2.1(a)(2), which in turn disqualified all of his prior felony convictions as crimes of violence under the guideline. (Id.) He believes defense counsel's ineffective assistance was failing to raise this argument, and the subsequent harm was that the PSR incorrectly calculated an additional five-year mandatory minimum term on his advisory guideline sentence, which inflated the agreed-upon term of imprisonment in his plea agreement. (See id.; see also Doc. 4 at 4-10.) He appears to argue that he would have proceeded to trial if the PSR presented this lower sentencing range. (See Doc. 4 at 6 (“It is this incorrect Guideline Range which trial counsel used to advise his client to not withdraw his plea before sentencing.”).)

         Three recent Supreme Court cases are relevant. In 2015, in Johnson, the Court found unconstitutionally vague the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), which defined “violent felony” to include any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 135 S.Ct. at 2563. In 2016, in Welch v. United States, the Court held that “Johnson announced a substantive rule that has retroactive effect in cases on collateral review.” 136 S.Ct. 1257, 1268 (2016). And this year, in Beckles v. United States, the Court held that the residual clause in the Career Offender Guideline, U.S.S.G. § 4B1.2(a)(2), which is “identically worded” to the residual clause in the ACCA that was invalidated in Johnson, is “not subject to vagueness challenges” because “advisory Guidelines do not fix the permissible range of sentences” but “merely guide the exercise of the court's discretion in choosing an appropriate sentence within the statutory range.” 137 S.Ct. 886, 890 (2017).

         The guideline at issue here is U.S.S.G. § 2K2.1, titled “Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition . . . .” According to the PSR, Salazar's base offense level was 24 under subsection (a)(2)-because he “committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense”-and he incurred a two level enhancement under subsection (b)(4)(A)-because “[i]f any firearm . . . was stolen, increase by 2 levels.” U.S.S.G. §§ 2K2.1(a)(2), (b)(4)(A); see also PSR at 12. The “Definitions” section of the guideline states that “‘[c]rime of violence' has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” A cursory review of Salazar's criminal history in the PSR reveals that he has multiple ...

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