United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION
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,  the United States argues that at
all times Plaintiff's counsel performed reasonably and in
accordance with Plaintiff's instructions. The
Plaintiff's Reply denies this assertion.
February 20, 2018, the Court conducted a hearing on
Plaintiff's Motion 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.
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.
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. A Spanish interpreter was present, and
Plaintiff had a headset so that he could hear the Spanish
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). 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
Civ. Doc. No. 11-1, p. 25.
Post Plea Events
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
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
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.
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.
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 ...