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United States v. Pacheco-Soto

United States District Court, D. New Mexico

April 3, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RUBEN PACHECO-SOTO, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court under Rule 4 of the Rules Governing Section 2255 Proceedings on the Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody filed by Movant, Ruben Pacheco-Soto, on November 27, 2017. (Doc. 60). Pacheco-Soto alleges ineffective assistance of counsel in negotiating his Plea Agreement. The Court determines that Pacheco-Soto knowingly and voluntarily entered into the Plea Agreement and that he received effective assistance of counsel. Therefore the Court dismisses Pacheco-Soto's § 2255 Motion with prejudice.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2015, Pacheco-Soto was charged with and indicted on four counts: (Count 1) possession with intent to distribute 100 grams and more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (Count 2) possession with intent to distribute a controlled substance, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (Count 3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and (Count 4) felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 2, 12). Pacheco-Soto pled guilty to Counts 2, 3, and 4 under a Plea Agreement on February 17, 2017. (Doc. 40 at 2, ¶ 3).

         In the Plea Agreement, Pacheco-Soto stated that he understood the maximum penalties that could be imposed were imprisonment for not more than 20 years on Count 2, imprisonment for not less than 5 years or more than life on Count 3, and imprisonment for not more than 10 years on Count 4. (Doc. 40 at 4). The Plea Agreement also contained a stipulation to a total term of imprisonment of 90 months under Fed. R. Crim. P. 11(c)(1)(C). (Doc. 40 at 5, ¶ 14). In the Plea Agreement, Pacheco-Soto also stated that his plea of guilty was freely and voluntarily made, there had been no promises from anyone as to what sentence the Court would impose, and that he had carefully discussed every part of this agreement with his attorney. (Doc. 40 at 10). The Plea Agreement was signed by both Pacheco-Soto and his counsel. (Doc. 40 at 10).

         The Court accepted Pacheco-Soto's guilty plea at a hearing held February 17, 2017. (Doc. 41). At the plea hearing, the Court explained Pacheco-Soto's rights and the maximum penalties to him, and Pacheco-Soto testified that he understood those rights and penalties. (Doc. 54 at 5-8). The Court also reviewed the terms of the Plea Agreement with Pacheco-Soto and Pacheco-Soto stated that he understood the terms. (Doc. 54 at 9-13). Defendant's counsel advised the Court that he is bilingual and had read the Plea Agreement to Pacheco-Soto in Spanish. (Doc. 54 at 9). Last, the Court advised Pacheco-Soto that the Plea Agreement recommended a sentence of imprisonment for a term of 90 months. (Doc. 54 at 14). Pacheco-Soto testified that he had not been threatened or forced to enter into the Plea Agreement, that no promises had been made as to what sentence the Court would impose, and that he understood “everything.” (Doc. 54 at 14-15). The Court found that the Plea Agreement was knowingly and voluntarily made and supported by the facts, and accepted the guilty plea. (Doc. 54 at 15).

         Pacheco-Soto joined in the United States' Sentencing Recommendations and asked the Court to accept the 90 month stipulated term of imprisonment. (Doc. 45 at 1). The Sentencing Recommendations also noted that the Guidelines range was 121 to 151 months (plus 60 consecutive months) and that the stipulation was below the Guidelines term. (Doc. 45 at 6). The Court accepted the Plea Agreement and sentenced Pacheco-Soto to the 90 month stipulated term. (Doc. 46, 47). At the sentencing hearing, the Court expressed concern as to whether 90 months was enough, noted that Pacheco-Soto was getting a “significant break” because the Guidelines range was 121 to 151 months, and stated that Pacheco-Soto's lawyer had “negotiated a very favorable plea agreement for you.” (Doc. 56 at 5-6).

         On June 12, 2017, Pacheco-Soto filed a Notice of Appeal, appealing his conviction and sentence to the United States Court of Appeals for the Tenth Circuit. (Doc. 48). The Tenth Circuit enforced the appeal waiver in the Plea Agreement and dismissed the appeal on August 16, 2017. (Doc. 57-1). Pacheco-Soto then filed his pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence on November 27, 2017. (Doc. 60). In his Motion, Pacheco-Soto makes one argument: that “Counsel was ineffective for advising petitioner to plead guilty to a plea agreement under the false promise that petitioner would get a 60 month capped sentence . . . Counsel therefore made the plea unvoluntary and unknowing.” (Doc. 60 at 6).

         II. ANALYSIS OF PACHECO-SOTO'S CLAIM

         In essence, Pacheco-Soto's § 2255 Motion claims that he received ineffective assistance of counsel in negotiating and entering into the Plea Agreement. The Court has reviewed the Motion and the record in the underlying criminal proceedings. Under Rules 5, 7, and 8 of the Rules Governing Section 2255 Proceedings, the Court determines that an answer, expanded record, and evidentiary hearing are not warranted. The Court concludes that the motion and existing record are sufficient and clearly fail to establish any claim of ineffective assistance of counsel. The Court will dismiss the Motion under Rule 4(b) of the Rules Governing Section 2255 Proceedings.

         In order to establish a claim of ineffective assistance of counsel, a movant must demonstrate: (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, the challenger must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. To establish prejudice, the movant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. The likelihood of a different result must be substantial, not just conceivable. Harrington v. Richter, 562 U.S. 86, 112 (2011).

         Where the petitioner entered a plea of guilty or no contest, the petitioner must establish that he would not have pled guilty had his attorney performed in a constitutionally adequate manner. Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001). If a plea was intelligently and voluntarily entered on advice of counsel and that advice was within constitutional standards, the plea is deemed valid and there is no basis for federal habeas corpus relief. Akridge v. Hopper, 545 F.2d 457, 458 (5th Cir. 1977). Where there is sufficient evidence that counsel was not ineffective in allowing the petitioner to enter into a plea, the petitioner is not entitled to habeas corpus relief. Allen v. Mullin, 368 F.3d 1220, 1246 (10th Cir. 2004).

         Pacheco-Soto contends that, due to ineffective assistance of counsel, he did not knowingly and voluntarily enter into the plea agreement. (Doc. 60 at 6). Pacheco-Soto entered into the Plea Agreement on February 17, 2017. (Doc. 40). The Plea Agreement sets out, at length, Pacheco-Soto's understanding of his rights and waiver of those rights, his understanding of the sentencing agreement, guidelines, and penalties, his understanding of the immigration removal and immigration consequences, and his understanding of waiver of appeal rights and collateral review. (Doc. 40). The Plea Agreement, itself, contains the following statements:

“Defendant agrees and represents that the plea of guilty is freely and voluntarily made . . . [t]here has been no promises from anyone as to what ...

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