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Terrones-Lopez v. United States

United States District Court, D. New Mexico

March 6, 2018



         On December 12, 2016, Plaintiff Reyes Terrones-Lopez (Plaintiff) pro se filed a MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (No. 16 CV 1353, Doc. No. 1; No. 15 CR 0645, Doc. No. 38) (Motion) asking this Court to vacate, set aside, or correct his sentence and alleging that his attorney's performance violated his Sixth Amendment right to effective assistance of counsel. He claims that his legal counsel did not effectively represent him during the change of plea and sentencing proceedings. In its response, [1] the United States argues that at all times Plaintiff's counsel performed reasonably and in accordance with Plaintiff's instructions. The Plaintiff's Reply[2] denies this assertion.

         On February 20, 2018, the Court conducted a hearing on Plaintiff's Motion[3] as well as on the issue regarding instructions Plaintiff had given his counsel that was raised in Plaintiff's Reply. The Court has reviewed the Motion, the exhibits, and all briefing. For the reasons explained below, the Court will grant the Motion.

         I. Background

         On January 12, 2015, United States Border Patrol Agents encountered Plaintiff in Dona Ana County, New Mexico and discovered he was a Mexican citizen in this country illegally. A records check revealed Plaintiff had served a 108-month sentence for a federal drug crime, and subsequently had been deported from the United States in 2014. On January 14, 2015, the government charged him with Reentry of a Removed Alien in Violation of 8 U.S.C. §§1326(a) and (b). Crim. Doc. 1.

         a. Plea Hearing

         On February 26, 2015, Plaintiff pled guilty to an Information without the benefit of a plea agreement. Crim. Doc. 13. Ms. Cori Harbour-Valdez (Ms. Harbour-Valdez) had been appointed to represent him and did so at the change of plea hearing.[4] A Spanish interpreter was present, and Plaintiff had a headset so that he could hear the Spanish translation.

         At the change of plea hearing, Ms. Harbour-Valdez stated that Plaintiff wished to plead guilty. She explained that he had declined a fast-track plea agreement under Fed. R. Crim. P. 11(a)(1)(C).[5] She acknowledged that with the fast-track plea agreement Plaintiff would serve between 30 to 37 months or 37 to 46 months, depending on Plaintiff's criminal history category, and that without one he faced a range of 51 to 63 months or 63 to 78 months. Civ. Doc. No. 11-1, p. 26. Ms. Harbour-Valdez gave the following reason for rejecting the fast-track plea agreement:

There are some extenuating circumstances that I intend to bring forth to the District judge under a 3553 framework that I would be prohibited from doing with the fast track and I believe that those will be moving factors that the Court will consider ---.

Civ. Doc. No. 11-1, p. 25.

         b. Post Plea Events

         On April 21, 2015, the United States Probation Office (USPO) disclosed the Petitioner's Presentence Investigation Report (PSR). On April 29, 2015, the USPO provided an Addendum. The PSR documented Plaintiff's allegations that information he gave the government in an earlier case had resulted in death threats to his family and him, the kidnapping of family members, and the vandalizing of his home. On this basis, the PSR indicated that under United States Sentencing Guideline 5K1.12 coercion and duress might be potential grounds for a downward departure from the calculated guideline range and therefore, a lower sentence. PSR ¶¶ 63-64. The PSR also mentioned factors that may warrant a sentence under 18 U.S.C. § 3553(a) outside the Guideline range. PSR ¶ 65. However, because the USPO was unable to corroborate any of Plaintiff's statements with outside sources, the PSR did not recommend a departure under USSG 5K2.12 or a variance under 18 U.S.C. § 3553(a). Instead, the USPO concluded that a sentence within the guideline range of 46 to 57 months was warranted. PSR ¶ 66.

         On July 21, 2015, Plaintiff attended a debriefing with his attorney Ms. Harbour-Valdez regarding the individuals Plaintiff had paid to smuggle him across the border into the United States. None of the information he revealed during his debriefing was helpful to the Assistant United States Attorney (AUSA), who declined to file a motion for a downward departure under USSG § 5K1.1 based on substantial assistance. Until Plaintiff's sentencing hearing on December 8, 2015, nothing further occurred in the case. Despite having told Magistrate Judge Lourdes A. Martinez at the change of plea hearing that she contemplated making an argument at sentencing based on “a 3553 framework, ” Ms. Harbor-Valdez never filed a sentencing memorandum presenting that argument.

         c. Sentencing Hearing

         On December 8, 2015, the Court held a sentencing hearing. Prior to the hearing, Ms. Harbour-Valdez did not file any objections to the PSR nor did she file a motion or sentencing memorandum seeking a downward departure under the USSG or a variance under 18 U.S.C. § 3553. The Court found that “Mr. Reyes Terrones-Lopez knowingly, voluntarily and intelligently entered a plea of guilty to the charge in Information 2015-645.” Civ. Doc. No. 11-2, p. 5. The Court adopted the facts and findings in the PSR and its Addendum. Id. The Court indicated that it intended to impose a sentence of 46 months, which was at the bottom of the guideline range.

         Ms. Harbour-Valdez then asked the Court to “consider something a little bit less than the 46 months.” Transcript of Sentencing Hearing, Civ. Doc. No. 11-2, p. 9. She informed the Court that her client had attempted to help the government by disclosing information about other criminals and criminal acts. She mentioned the death threats against Plaintiff and his family. She indicated that prior to the sentencing hearing, Plaintiff asked her:

[T]o get him the most amount of time as possible because he felt like he was more safe in a U.S. prison than he would be in Mexico after being deported. After being in jail for almost eleven months, he's obviously changed his mind. He-his mom has been diagnosed with breast cancer. There's some other concerns obviously with his wife who is not a legal resident but has filed paperwork based on the threats that she's received to try to adjust her status.
But he told me just this morning that just getting to another part of Mexico and moving as far away to try to hide because they know that obviously he can't be here but he obviously fears going back to where he was from in Mexico.

         Transcript of Sentencing Proceedings, Civ. Doc. No. 11-2, pp. 8-9. Plaintiff also made a statement to the court:

I want to apologize for having returned to the United States but my life was in danger in Mexico. I was beaten up and had to come back because my mother was sick and my son also died. My brother as well died in February and what I want is to see them again because I haven't seen them since 2006. My parents cannot travel to see me and she ...

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