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United States v. Orozco-Sanchez

United States District Court, D. New Mexico

September 3, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
CIRILO OROZCO-SANCHEZ, Defendant-Movant.

          PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on Cirilo Orozco-Sanchez's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. 2255 (“Section 2255 Motion”). Doc. 23.[1] By Order of Reference, entered July 5, 2016, this matter was referred to me to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of this habeas action. Doc. 2.

         The Court held an Evidentiary Hearing on Cirilo Orozco-Sanchez's (“Mr. Orozco-Sanchez's”) Section 2255 Motion on January 12, 2018. Mr. Orozco-Sanchez was present with his counsel, James Loonam, and the court's certified staff interpreters available to provide simultaneous Spanish translation of the proceedings. Assistant United States Attorney Dustin Segovia appeared for the United States. The Court heard testimony from both Mr. Orozco-Sanchez and his trial counsel, Margaret Strickland. Post-evidentiary hearing briefing was completed by the parties on June 7, 2018. Having now heard testimony at the Evidentiary Hearing as well as having considered the parties' submissions, the relevant law, and the record in this case, the Court recommends that Mr. Orozco-Sanchez's Section 2255 Motion be denied.

         I. PROCEDURAL HISTORY AND FINDINGS OF FACT

         Mr. Orozco-Sanchez has significant ties to the United States, including a number of siblings living here. Doc. 56 at 24:8-17, 25:13-15; Doc. 55 at ¶ 35. Indeed, he came to the United States for the first time when he was 18 years old, and from then on, he lived in Dallas, Texas and Colorado Springs, Colorado, except for periods of incarceration and brief periods when he was in Mexico following deportation from the United States. Doc. 55 at ¶ 37. During the 25-year period from 1990 to 2015, Defendant spent a mere 5 years in Mexico. See Id. at ¶¶ 23-27, 37.

         On February 2, 1998, Mr. Orozco-Sanchez was deported to Mexico for the first time after having served 45 days in jail for driving while intoxicated. Id. at ¶ 23. Weeks later, on February 25, 1998, he was again found to be unlawfully in the United States. Id. at ¶ 24. This time, he was caught transporting 16 other illegal aliens into the United States, 12 of whom were lying in the bed of the truck he was driving. Id. at ¶ 24. Mr. Orozco-Sanchez told Border Patrol agents that he was transporting the illegal aliens in exchange for his free passage to the United States. Id. After pleading guilty to alien smuggling, he was sentenced to 9 months in custody followed by a 3-year term of supervised release. Id. On November 25, 1998, Mr. Orozco-Sanchez was again deported to Mexico. Id.

         Then, just over a year later on January 11, 2000, Mr. Orozco-Sanchez was again found to be unlawfully in the United States. Id. at ¶ 25. He pled guilty to illegal reentry in violation of 8 U.S.C. § 1326, and his supervised release was revoked. Id. at ¶¶ 24-25. He was sentenced to 15 months of imprisonment and 2 years of supervised release. Id. at ¶ 25. On February 9, 2001, he was deported to Mexico for the third time. Id. His term of supervised release expired on February 8, 2003. Id.

         Ten months later, on December 14, 2003, he again returned to the United States. Id. at ¶ 26. His brother, Salvador Orozco-Sanchez, confirmed that he had arrived, unlawfully, in the United States in December of 2003. Id. at ¶ 26. Mr. Orozco-Sanchez reported working as a carpet layer for Arlun Floor Coverings & Design in Colorado Springs for all of 2004 and part of 2005. Id. at ¶ 44. Then, on April 16, 2005, he was discovered by law enforcement when he was stopped for a minor traffic violation and was subsequently arrested. Id. at ¶ 26. He was ultimately convicted of being in the United States after a previous deportation and was sentenced to 57 months of imprisonment followed by a 3-year term of supervised release. Id. He was deported to Mexico for the fourth time on June 11, 2009. Id.

         A little over a year later on August 10, 2010, Mr. Orozco-Sanchez again returned to the United States. Id. at ¶ 27. He was discovered by Border Patrol agents hiding in the desert brush near Papago Farms, Arizona. Id. He was arrested and again pled guilty to unlawfully reentering the United States following a previous deportation. Id. This time he was sentenced to 63 months in custody, followed by a 3-year term of supervised release. Id. Mr. Orozco Sanchez was deported to Mexico for the fifth time on March 12, 2015. Doc. 55 at ¶ 27.

         But on March 25, 2015, less than two weeks after that fifth deportation, Mr. Orozco-Sanchez yet again returned to the United States. Id. at 3. He spent just nine hours in the United States before being caught by Border Patrol agents while hiding in the desert brush. Id. at ¶ 5; Doc. 48-1 at 34. Mr. Orozco-Sanchez told agents that he intended to return to Colorado Springs where he planned to seek employment and reside indefinitely. Doc. 48-1 at 56; Doc. 56 at 30:21-31:1. Additionally, he told the agents that he did not fear “persecution or torture if he is returned to his homeland.” Doc. 48-1 at 57. A Criminal Complaint was filed against Mr. Orozco-Sanchez on March 27, 2015, charging him with illegal reentry after being convicted of an aggravated felony (i.e., alien smuggling). Doc. 1. The Court appointed Ms. Strickland to represent him on March 27, 2015. Doc. 4.

         Through counsel, the United States offered Mr. Orozco-Sanchez a Fast-Track Plea Agreement. Pursuant to that Agreement, from the determined base offense level under the United States Sentencing Guidelines (U.S.S.G.), Mr. Orozco-Sanchez would receive a 3-level downward adjustment for acceptance of responsibility (U.S.S.G. § 3E1.1), as well as a 4-level downward departure (U.S.S.G. § 5K3.1), unless he was placed in Criminal History Category VI, in which case he would receive only a 2-level departure from his determined base level. Doc. 12 at ¶¶ 4, 10, 11. The terms of the Plea Agreement prevented Mr. Orozco-Sanchez from seeking a further downward departure or variance, and he waived his right to appeal and/or collaterally attack his conviction, except on grounds of ineffective assistance of counsel. Id. at ¶ 7.

         When Ms. Strickland discussed the possibility of a guilty plea with Mr. Orozco-Sanchez, he advised her that he had been kidnapped, held in a house for a few days, and forced by threat of death to cross the border, along with others, in an effort to distract Border Patrol agents from couriers transporting drugs across another part of the border. Doc. 56 at 105:24-25, 106:1, 115:17-116:12. Ms. Strickland testified that when an illegal reentry client tells the arresting Border Patrol agents that he has no fear of persecution or torture if returned, as Mr. Orozco-Sanchez did here, it raises concerns that the client will be impeached if he then attempts to assert a duress defense. Id. at 108:3-11.

         Even so, Ms. Strickland testified that she investigated Mr. Orozco-Sanchez's duress claim by talking to some of the attorneys who represented the four other aliens who entered the United States along with Mr. Orozco-Sanchez. Id. at 120:15-22. She explained that none of the other defendants had related to their attorneys that they had been kidnapped and forced to cross the border. Doc. 56 at 106:15-22. Although it was her usual practice to take notes or to request an interpreter to take notes when investigating an exculpatory defense for her clients, id. at 122:4-16, 125:9-11, in Mr. Orozco-Sanchez's case, her file did not contain any notes from conversations with attorneys representing the defendants who crossed the border with him, id. at 126:7-16. Additionally, Ms. Strickland's CJA voucher does not detail any time devoted to interviews with these other attorneys. See Doc. 21.

         According to Ms. Strickland's testimony, she understood Mr. Orozco-Sanchez to say that he “and others" were forced to cross the border as a distraction for Border Patrol. Doc. 56 at 116:6-12. In contrast, Mr. Orozco-Sanchez offered testimony in his supervised release violation proceeding in the District of Arizona that after being kidnapped at gunpoint in Mexico, he was forced to lead a number of people across the border, supposed to believe that he was their guide. Doc. 48-1 at 24, 28, 29, 31, 32. In that Arizona proceeding, Mr. Orozco-Sanchez testified that he did not inform the Border Patrol agents that he crossed the border under duress because “this ha[d] happened to me already two times and the agents don't listen.” Doc. 48-1 at 35. He elaborated, testifying that in 1998 when he was discovered driving a truck occupied by 16 other illegal aliens, “[t]hey got me to get in - to drive a truck by pointing a knife at me.” Doc. 48-1 at 38. Yet, Mr. Orozco-Sanchez pled guilty in his 1998 alien smuggling case and did not object to the notation in his Presentence Report that he transported aliens in lieu of paying a smuggling fee. See Doc. 55 at ¶ 24, 27. In any event, Ms. Strickland was skeptical of Mr. Orozco-Sanchez's story that he was forced to serve as a guide under duress, and she explained that she did not want him to testify to these purported circumstances of his reentry into the United States under oath. Doc. 56 at 97:9-21.

         Ms. Strickland was aware that Mr. Orozco-Sanchez had the following prior convictions: a 1998 conviction for transporting illegal aliens; a 2000 conviction for illegal reentry; a 2005 conviction for illegal reentry; and a 2010 conviction for illegal reentry 2010. See Doc. 48-1 at 60. Taking account of these prior convictions, she calculated that he would receive 11 criminal history points and therefore would fall into Criminal History Category V. See id. Given her calculations, she determined that Mr. Orozco-Sanchez would receive a 12-offense-level increase from 8 to 20, pursuant to U.S.S.G. § 2L1.2(b)(1)(A). See id. Finally, she determined that, under the terms of his Plea Agreement, he would be eligible for a 3-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 as well as a 4-level reduction pursuant to U.S.S.G. § 5K3.1 Compare Doc. 12 at ¶ 4(e) with Doc. 48-1 at 60.

         At the Evidentiary Hearing, Ms. Strickland admitted that she erroneously calculated Mr. Orozco-Sanchez's guideline range to be 30 to 37 months incarceration. Doc. 56 at 56:5-13, 58: 20-25, 65:19-22, 67:3-10. She testified that she was not sure whether her miscalculations were a product of her being unaware that he had violated his supervised release in his 1998 alien transportation conviction or whether she simply failed to correctly add up his period of incarceration for that offense. Id. at 69:2-10, 70:1-7. She conceded, however, that she should have calculated Mr. Orozco-Sanchez's guideline range to be 63 to 78 months. Id. at 67-68. She further acknowledged that by conveying her miscalculation to Mr. Orozco-Sanchez, she did not adequately advise him of the consequences of his guilty plea. Id. at 96:25-97:1-4.

         She likewise admitted that she should have more thoroughly investigated his 1998 alien transportation conviction before advising him concerning the Plea Agreement. Id. at 75:9-15, 91:6-13. For instance, she acknowledged that prior to advising him regarding the fast-track plea offer, she could have, and should have, discovered that he received a concurrent 148-day prison term for violating his Texas supervised release. Id. at 71:1-16, 76:15-17, 91:6-13.

         Mr. Orozco-Sanchez testified that before he entered the Plea Agreement, Ms. Strickland told him that his sentence would be 30 to 37 months with the Plea Agreement and 77 to 96 months without it. Id. at 10:19-21, 13:12-14, 42:16-20. Ms. Strickland insists that she clarified for Mr. Orozco-Sanchez that the 30- to 37-month guideline range was an estimate and not a promise of a sentence within that range. Id. at 57:9-12, 110:4-9. Ultimately, with the advice of counsel, Mr. Orozco-Sanchez entered into the Fast-Track Plea Agreement on April 30, 2015. Doc. 12. By signing the Agreement, he admitted that he “knowingly and voluntarily reentered the United States after previously having been deported.” Id. at 6.

         At his Plea Hearing before the Honorable Lourdes A. Martinez, Mr. Orozco-Sanchez pled guilty, with the benefit of the Plea Agreement, to reentering the United States without permission after previously being deported, excluded and removed, in violation of 8 U.S.C. § 1326(a) and (b). After he was placed under oath, Judge Martinez confirmed that: (1) he read or was read his plea agreement; (2) he discussed his plea agreement with his attorney; (3) his attorney answered all of his questions to his satisfaction; (4) he signed the plea agreement voluntarily; and (5) he “fully and completely underst[oo]d each and every provision of [the] plea agreement.” Doc. 29 at 25-27. When asked later at the January 12, 2018 Evidentiary Hearing whether his entire Plea Agreement was read to him in Spanish, however, Mr. Orozco-Sanchez initially testified that it was not. Doc. 56 at 43:24-44:1. Thereafter, counsel for the United States asked Mr. Orozco-Sanchez whether he was lying during his Plea Hearing or during his testimony at the Evidentiary Hearing. Id. at 49:15-16. Mr. Orozco-Sanchez responded: “No. I'm sorry I hadn't understood the other question. Yes, it was read to me in Spanish.” Id. at 49:17-18.

         At the Plea Hearing, Judge Martinez took eight defendants as a group but personally addressing each one and explained that it would be up to the sentencing judge to sentence each of them after receiving their presentence reports. Doc. 29 at 6:21-25. She cautioned: “You also need to understand that your attorney is estimating where your attorney thinks your case will fit within those guidelines and because it is an estimate, it is possible for your sentencing judge to perhaps give you a harsher [sentence] than your attorney thinks you're going to get right now.” Id. at 1-5. Judge Martinez asked each defendant whether they understood that there was “a possibility of [the] sentencing judge perhaps giving [them] a harsher sentence than [their] attorney thinks [they're] going to get right now.” Id. at 18-21. Mr. Orozco-Sanchez indicated that he understood. Id. at 25:4. She also asked each defendant whether he wanted to proceed with a guilty plea, knowing that he might get a harsher sentence than his attorney thought he would receive. Id. at 25:5-7. Mr. Orozco-Sanchez responded that he wished to proceed with a guilty plea. Doc. 29 at 25:15.

         Judge Martinez asked the attorneys for the eight defendants to “describe the essential terms” of their plea agreements. Id. at 28:2-6. When it was Ms. Strickland's turn to outline the essential terms of Mr. Orozco-Sanchez's Plea Agreement, she explained that “[b]ecause of Mr. Orozco's criminal history, he's in Category V and it carries an enhancement for a very old trafficking case which put him beginning at Level 20.” Id. at 38:21-24. She went on:

He is going to receive a seven-level reduction under this offer down to a Level 13. That puts his range down from 63 to 78 months down to 30 to 37 months. So it's a significant reduction. On his last prior reentry, he received 63 months. So he'd be receiving quite a reduction in the sentencing range.

Id. at 38:25-39:4. Judge Martinez responded:

That's not a bad deal given your criminal history. Do you understand what your attorney has just explained about your prior criminal history and how it affects your sentence? There is a 12-level enhancement because of a prior crime you committed . . . And without your plea agreement, you'd be looking at 63 to 78 months, with this plea agreement, 30 to 37 months. Do you understand?

Id. at 39:5-13. Mr. Orozco-Sanchez indicated that this was his understanding. Id. at 39:10. Thereafter, Judge Martinez accepted Mr. Orozco-Sanchez's plea, adjudged him guilty, and deferred acceptance of the Plea Agreement until sentencing by a District Judge. Doc. 14.

         The United States Probation Office prepared a Presentence Report and disclosed it to Mr. Orozco-Sanchez on May 28, 2015. Doc. 55 at 1. In contrast to Ms. Strickland's calculations, the Presentence Report determined that Mr. Orozco-Sanchez was facing an imprisonment range under the Sentencing Guidelines of 63 to 78 months. Id. According to Ms. Strickland, Mr. Orozco-Sanchez became “very upset” when she disclosed the Presentence Report guideline range to him over the phone. Doc. 56 at 95:1-2. Ms. Strickland testified that she laid out different options for Mr. Orozco-Sanchez, including putting off the sentencing hearing, withdrawing the plea and trying to get a better plea, or pleading straight-up and asking for a departure or variance. Id. at 95:2-6. She indicated that she did not think Mr. Orozco-Sanchez had a “good shot” at receiving a better plea agreement. Id. at 86:13-16. Moreover, she believed it would be “difficult” for him to obtain a departure or variance. Id. at 86:15-17. She advised Mr. Orozco-Sanchez that she “really felt like withdrawing the plea and going straight-up would not be wise.” Id. at 103:1-2. She also explained that she “didn't want to do anything to violate the Plea Agreement[, ] . . . by asking to step outside sentencing ranges.” Id. at 87:5-11. Further, Ms. Strickland was concerned that advancing arguments that Mr. Orozco-Sanchez's criminal history was overstated or overrepresented as a result of his 17-year-old conviction would serve to “highlight [his] criminal history.” Id. at 88:2-8. She explained that she did not always get the “best result” in cases in which she “discuss[ed] criminal history at length” as opposed to devoting her time to talking about the “client and why they should get certain things in sentencing.” Id. at 13-19. However, Ms. Strickland testified that she did not discuss with Mr. Orozco-Sanchez the potential argument that his criminal history category was overrepresented. Id. at 89.

         Mr. Orozco-Sanchez's testimony regarding that phone conversation differed in one significant way from that of Ms. Strickland. He testified that Ms. Strickland did not advise him that his Plea Agreement would prohibit Judge Johnson from sentencing him to less than 63 months. Id. at 19:20-23. He insisted that had she done so, he would have withdrawn from the Plea Agreement, even if the low end of his applicable sentencing range increased to 77 months, so that he could request a below-guideline sentence. Id. at 20:3-13.

         Mr. Orozco-Sanchez proceeded to sentencing on June 23, 2015, before the Honorable William P. Johnson. Doc. 16. Mr. Orozco-Sanchez did not make any objections to the Presentence Report, through counsel or otherwise, nor did he move to withdraw his guilty plea. Doc. 86 at 18-20; see also Doc. 28. At sentencing, the prosecutor recommended a sentence at the low end of the guideline range. Doc. 28 at 2. Ms. Strickland, in turn, requested a 63-month prison sentence, making the following arguments on Mr. Orozco-Sanchez's behalf:

[L]ike many people who come over here, my client originally came over to put himself and his family ahead. Obviously he has some run-in [sic] with the law while he has been in this county. As I'm sure the Court saw in his presentence report, he suffered some severe childhood abuse and neglect which affected the way - affected his development and his ability to make decisions. In this case, he does have an imperfect duress defense that I know he wants to discuss with the Court.

Id. at 3. Mr. Orozco-Sanchez detailed the circumstances of his arrest, including being kidnapped and forced to cross the border, without participation from Ms. Strickland. Id. at 3-4. He asserted that he did not tell the Border Patrol agents about his kidnapping, because he had previously been beaten up by an agent. Id. at 3:22-4:2.

         Judge Johnson accepted Mr. Orozco-Sanchez's guilty plea and his Plea Agreement and imposed a sentence of 72 months. Doc. 17. He further explained that “on individuals who are in Category 6, the highest Criminal History Category, [he is] generally not inclined to go with the low end of the guideline sentence.” Doc. 28 at 2:20-24. Judge Johnson finally advised, ...


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