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United States v. Vallecillo-Rodriguez

United States District Court, D. New Mexico

March 7, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JOSE FERNANDO VALLECILLO-RODRIGUEZ, Defendant/Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KEVIN R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.

         Federal inmate Jose Fernando Vallecillo-Rodriguez seeks review of his sixty-month sentence under 28 U.S.C. § 2255 arising from his guilty plea to unlawful reentry. Vallecillo-Rodriguez argues that the Court must set aside his sentence because it was calculated, in part, using a 1995 conviction for second-degree murder in state court that was vacated in January 2017. Without this conviction, Vallecillo-Rodriguez maintains, the appropriate range of his federal sentence is only six to twelve months, which he has already served. Instead of filing a response, the Government moved to enforce the broad appeals-waiver clause of Vallecillo-Rodriguez's written plea agreement, which purports to bar collateral challenges. Vallecillo-Rodriguez insists the waiver is unenforceable because it was the product of ineffective assistance of counsel. Pursuant to an order of reference from Chief United States District Judge William Johnson, see 28 U.S.C. § 636(b), the Court has considered the parties' submissions and reviewed the record. Having done so, the Court recommends that Vallecillo-Rodriguez's motion GRANTED and he be resentenced.

         I. BACKGROUND

         On May 20, 2013, Vallecillo-Rodriguez, a Mexican national previously removed from the United States, was arrested by federal immigration agents in Albuquerque, New Mexico. (Doc. 51). Although Vallecillo-Rodriguez had been lawful permanent resident, he was deported after serving a ten-year sentence for a second-degree murder conviction from the Second Judicial District Court for Bernalillo County, New Mexico. (Doc. 71-1). Vallecillo-Rodriguez had previously attempted to return to the United States on different occasions, and at the time of his arrest, was under a removal order from November 2011. (Docs. 51; 71-1). On July 25, 2013, a federal grand jury returned a single-count indictment charging Vallecillo-Rodriguez with unlawful reentry into the United States after having been deported, in violation of 18 U.S.C. § 1326. (Doc. 14).

         Following his indictment, Vallecillo-Rodriguez began exploring plea negotiations though his court-appointed attorney. (Docs. 7; 35). On May 14, 2014, Vallecillo-Rodriguez asked the Court to authorize the United States Probation Office to prepare a “Pre-Plea Presentence Report (Form 13)” to assist in that regard. (Doc. 35). The Court granted the motion. (Doc. 37). Toward the end of 2014, Vallecillo-Rodriguez also engaged an attorney to renew previous challenges to his second-degree murder conviction in state court. (Doc. 71-1). Vallecillo-Rodriguez asserted trial counsel failed to adequately explain to him that his guilty plea to second-degree murder would cause him to be deported to Mexico after completing his sentence. (Id.).

         On February 26, 2015, Vallecillo-Rodriguez pleaded guilty to the single count in the federal indictment. (Doc. 51). In a written agreement, Vallecillo-Rodriguez admitted he was a Mexican national, had knowingly reentered the United States after being deported, and had not obtained the express consent of the Secretary of Homeland Security to do so. (Id.). In exchange for the plea and Vallecillo-Rodriguez's “waiver of appeal rights, ”[1] the Government agreed to a specific sentence of 60 months incarceration pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Magistrate Judge Lorenzo Garcia accepted the plea on the same day. (Doc. 42) During the colloquy, Judge Garcia explained:

Judge Garcia: . . . Judge Johnson will determine whether he can accept your plea agreement only after he considers a presentence report and the sentencing guidelines. Therefore, Mr. Vallecillo, even though I am prepared to accept your plea of guilty today, Judge Johnson retains authority to accept the plea agreement as distinct from the plea of guilty. Do you understand he has that authority?
Vallecillo-Rodriguez: Yes.

         Chief Judge Johnson set the matter for sentencing. Vallecillo-Rodriguez moved to continue the initial sentencing hearing-and on two other occasions after the Court granted the first request to delay the proceedings. (Docs. 54; 57; 59). Although continuances are routine and normally would merit little discussion, they are of importance here because of the reason Vallecillo-Rodriguez sought them. Even after agreeing to a specific term of imprisonment and waiving collateral challenges, Vallecillo-Rodriguez wanted sentencing put off because he “filed a motion in the state court to vacate his [second-degree murder] conviction” and “[i]f [his] prior conviction is overturned, it may have implication with regard to sentencing and supervised release hearings.” (Docs. 54; 57; 59). Each time, the Government agreed to the relief requested. (See id.).

         On July 26, 2015, Chief Judge Johnson denied a third motion to continue. (Doc. 62). In an amended order, the Court acknowledged that “if Defendant's 1995 conviction were vacated prior to sentencing . . . Defendant's guideline imprisonment range would be reduced from [a range of] 70 to 87 months . . . to a range of 37 to 46 months[.]” (Id.). The Court, however, was unwilling to delay sentencing any further because “the mere possibility that Defendant might succeed in having his twenty-year-old murder conviction vacated does not justify further delay in this action.” (Id.). The Court also explained that Vallecillo-Rodriguez was adequately protected should he obtain a favorable ruling:

[I]f Defendant ultimately succeeds in his habeas action after this Court sentences him, he is not without remedies. “If a defendant successfully attacks state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentences” through a federal habeas action under 28 U.S.C. § 2255. The availability of this safeguard further weighs in favor of moving forward with Defendant's sentencing hearing as scheduled.

(Id.) (Citation omitted).

         On August 4, 2015, the Court sentenced Vallecillo-Rodriguez to the 60-month agreed upon term. (Docs. 61; 63). As for the pending state court proceedings, Chief Judge Johnson explained:

THE COURT: All right. For purposes of -- as we sit here today, before we get to the 11(c)(1)(C) plea agreement, I'll find Probation correctly calculated the Defendant's Offense Level at 21, his criminal History Category is 5, and again, before you get to anything in the plea agreement, the guideline range is 70 to 87 months. Now, I agree with counsel that in the order denying the Motions to Continue, that I was wrong. I did this while I was in Las Cruces last week at a trial, and I didn't catch this when I reviewed the order. But if the Defendant is successful in getting the State conviction set ...

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