United States District Court, D. New Mexico
PROPOSED FINDINGS OF FACT AND RECOMMENDED
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. 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.
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.
PROCEDURAL HISTORY AND FINDINGS OF FACT
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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,
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.
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.
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.
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
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.
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.
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
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
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
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, ...