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United States v. Orozco-Sanchez

United States District Court, D. New Mexico

December 12, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,


         THIS MATTER comes before the Court on the following: the Magistrate Judge’s Proposed Findings and Recommended Disposition (PF&RD), filed September 3, 2018 (Doc. 65); Mr. Orozco-Sanchez’s Objections to the Magistrate Judge’s Proposed Findings of Fact and Recommended Disposition, filed September 27, 2018 (Doc. 73); the United States’ Objections to the Court’s Proposed Findings of Facts and Recommended Disposition, filed September 27, 2018 (Doc. 74); the United States’ Response to Defendant’s Objections, filed October 25, 2018 (Doc. 79); and Mr. Orozco-[Sanchez]’s Response to the Government’s Objections to the Magistrate Judge’s Proposed Findings of Fact and Recommended Disposition, filed October 29, 2018 (Doc. 80).[1] By Order of Reference entered July 5, 2016, this matter was referred to Magistrate Judge Karen B. Molzen 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. Orozco-Sanchez v. United States, 16cv0762 WJ/KBM, Doc. 2 (D.N.M. July 5, 2016).

         Judge Molzen 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 provided 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, Ms. Margaret Strickland. Post-evidentiary hearing briefing was completed by the parties on June 7, 2018, and Judge Molzen issued her PF&RD on September 3, 2018, wherein she recommended that Mr. Orozco-Sanchez’s Section 2255 Motion be denied. Both parties filed Objections to Judge Molzen’s PF&RD as well as Responses to Objections. While Mr. Orozco-Sanchez agreed with Judge Molzen’s finding that Ms. Strickland’s performance was constitutionally deficient, he objected to her determination that he had not established prejudice. Doc. 73 at 1. Conversely, although the United States concurred with Judge Molzen’s prejudice analysis, it objected to her finding that Ms. Strickland’s performance was constitutionally deficient. Doc. 74 at 1.

         A. Improper Guideline Calculations

         In her PF&RD, Judge Molzen determined that Ms. Strickland’s representation of Mr. Orozco-Sanchez at the time he entered his Plea Agreement and pled guilty fell below the objective standard of reasonableness required by Strickland v. Washington, 466 U.S. 668, 687 (1984). Judge Molzen noted that there was a consensus among the parties and Ms. Strickland that Ms. Strickland had erroneously calculated Mr. Orozco-Sanchez’s guideline range at 30 to 37 months imprisonment. Indeed, Ms. Strickland conceded that she miscalculated the guideline range but testified that she was unsure whether that miscalculation was a product of her ignorance of a 148-day sentence on a supervised release violation or a failure to correctly summate Mr. Orozco-Sanchez’s period of incarceration.[2] Either way, she conceded deficient performance by failing to adequately advise Mr. Orozco-Sanchez of the consequences of his guilty plea.

         Judge Molzen concluded that Ms. Strickland’s performance failed to pass constitutional muster for two reasons: (1) because she failed to perform basic factual research that would have revealed Mr. Orozco-Sanchez’s 148-day supervised release violation sentence and its dramatic impact on his guideline calculations; and (2) because her misstatements at the Plea Hearing regarding Mr. Orozco-Sanchez’s guideline range, when coupled with reinforcement from Magistrate Judge Martinez and her failure to temper those statements with contemporaneous reminders that the range was a mere estimate, essentially amounted to promises that Mr. Orozco-Sanchez would fall into the 30-to-37-month guideline range. Doc. 65 at 20-25.

         The United States urges this Court not to adopt Judge Molzen’s determination of deficient performance for the following reasons: (1) additional evidence, which it appended to its Objections, purportedly establishes that trial counsel did not fail to adequately investigate Mr. Orozco-Sanchez’s criminal history; (2) the mere miscalculation of a defendant’s guideline range does not, in itself, render counsel’s performance constitutionally deficient; and (3) trial counsel did not recklessly promise Mr. Orozco-Sanchez a particular sentence. Doc. 74 at 3-4. In response, Mr. Orozco-Sanchez urges the Court to strike the post-Evidentiary Hearing affidavit of Ms. Strickland. Doc. 80 at 5-10. He maintains that the United States has failed to explain why the statements contained in that affidavit were not relevant or available at the time of the Evidentiary Hearing. Id. at 10. Alternatively, Mr. Orozco-Sanchez asks the Court to return the case to Judge Molzen for further hearings and additional findings and recommendations. Id. at 8 (citing 28 U.S.C. § 636(b)(1)(C) (the district court “may recommit the matter to the magistrate judge with instructions”).

         Ultimately, because the Court adopts Judge Molzen’s determination that Mr. Orozco-Sanchez suffered no prejudice from any deficient performance of counsel at the plea stage, it becomes unnecessary to either determine whether Ms. Strickland’s performance was in fact deficient or to return the matter to Judge Molzen for further recommendations in light of the newly-submitted affidavit. See United States v. Zajac, 680 F. App’x 776, 783 (10th Cir. 2017) (“As a practical consideration, we need not examine both prongs [of the Strickland analysis] if one or the other is lacking.”) Accordingly, the Court proceeds to the second prong of the Strickland analysis.

         Under the prejudice prong, Judge Molzen concluded that Mr. Orozco-Sanchez failed to establish prejudice because he could not show that, absent ineffective assistance of counsel, he would have entered an open guilty plea or that the result of his criminal proceeding would have been more favorable. See Doc. 65 at 31. The United States concurs with Judge Molzen’s prejudice determination. Mr. Orozco- Sanchez, in contrast, contends that Judge Molzen significantly undervalued the strength of his grounds for downward departure and variance as well as his resolve to plead guilty without a plea agreement. See Doc. 73 at 2. He insists that he has established prejudice. See id.

         Both parties and Judge Molzen have referenced the United States Supreme Court’s decision in Missouri v. Frye, 566 U.S. 134 (2012) in conducting the Strickland prejudice analysis; their application of the legal framework, however, is not entirely consistent. Judge Molzen restated the prejudice framework as follows:

The [Frye] Court in reasoned that, in order to establish prejudice, the defendant was required to show “a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” It explained that it was also “necessary to show a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.” In other words, the Court indicated that, in assessing prejudice, courts must entertain how things would have played out had the defendant pursued an alternative plea option.

Doc. 65 at 27 (citations omitted). Applying that framework to Mr. Orozco-Sanchez’s case, Judge Molzen explained:

Given the implausibility of his imperfect duress defense, and the sentencing judge’s stated inclination not to sentence at the low-end of the guideline range when a defendant is in Criminal History Category VI, Mr. Orozco-Sanchez cannot show a “reasonable probability” that the end result would have been more favorable without the Plea Agreement. Notably, even if the factors enumerated by Mr. Orozco-Sanchez contributed to a low-end guideline sentence, which the Court considers more likely than a below-guidelines sentence, Mr. Orozco-Sanchez would have still received a sentence higher than 72 months. Moreover, a low-end sentence would only shave one month off of his high-end guideline exposure with the Plea Agreement. At the same time, he would risk a high-end guideline sentence that was 18 months higher than with his Plea Agreement. Under these circumstances, the Court simply cannot say that, properly advised, Mr. Orozco-Sanchez would have entered an open guilty plea.
* * *
[Further, ] [a]pplying the rationale of Missouri v. Frye in reverse – that is, considering whether the outcome of the proceeding would have been more favorable if Mr. Orozco-Sanchez declined the Fast-Track Plea Agreement and instead entered an open plea – the Court concludes that Mr. Orozco-Sanchez cannot demonstrate prejudice.

Id. at 31, 35. Thus, Judge Molzen was concerned both with whether a properly-advised Mr. Orozco-Sanchez would have entered an open guilty plea and with whether there was a “reasonable probability” that the final result would have actually been more favorable for him without the Plea Agreement. Mr. Orozco-Sanchez, too, relied upon Frye to frame the issue of prejudice, explaining:

[a] reasonable probability that, absent counsel’s inadequate representations, a defendant would have rejected the plea agreement he accepted and chosen a different, potentially more favorable plea option also satisfies Strickland’s prejudice prong. Missouri v. Frye, 566 U.S. 133, 148 (2012) (prejudice is established where ineffective assistance of counsel caused the defendant to miss out on a plea offer more favorable than the one the defendant ultimately accepted).

Doc. 58 at 17. While he did not directly attack Judge Molzen’s framing of the prejudice standard in his Objections, he subtly offered a competing one, focusing more narrowly on whether he would have chosen to pursue an open guilty plea if he had been properly advised. See, e.g., Doc. 73 at 21. In other words, Mr. Orozco-Sanchez essentially relieves himself of the additional burden of demonstrating a “reasonable probability” that he would have received a more favorable result had he entered an open guilty plea. In his Objections, he relies upon Lee v. United States, 137 S.Ct. 1958 (2017), and emphasizes that to obtain relief, he need not show that everyone in his position would have chosen to enter an open plea, but only that he in particular would have made that choice. See Doc. 73 at 21. He submits that he has met that burden and that the Court must, therefore, overrule Judge Molzen’s prejudice determination. See id.

         This Court must determine, as a foundational issue, which standard is the proper prejudice standard in this context – the one advanced by Mr. Orozco-Sanchez in his Objections or the more demanding one applied by Judge Molzen in her PF&RD. Following the parties’ lead, the Court’s begins with the Supreme Court’s analysis in Frye. There, the Court first determined that the defendant’s attorney was ineffective when he failed to communicate an earlier plea offer to the defendant. Frye, 566 U.S. at 147. Under the second prong of the Strickland analysis, the Court considered whether the defendant was prejudiced by entering an open guilty plea rather than entering into a plea agreement. Id. at 137. As Judge Molzen noted in her PF&RD, Frye presented a legal question similar to the one presented by Mr. Orozco-Sanchez, but in reverse. See Doc. 65 at 26. Critically, the Court in Frye reasoned that to establish prejudice, ...

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