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United States v. Sepulveda

United States District Court, D. New Mexico

August 7, 2019

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
MICHAEL RAY SEPULVEDA, Defendant-Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Motion”). CV ECF 2.[1] In the Motion, Defendant advances two theories of ineffective assistance of counsel. First, he alleges that counsel failed to investigate for sentencing purposes certain potential mitigating factors. Second, he alleges that his counsel failed to object at sentencing to certain statements made by the prosecutor and the introduction of information not contained in his Plea Agreement. The United States filed a response [CV ECF 8] (“Response”) to which Defendant has replied [CV ECF 11] (“Reply”). Having reviewed the briefing and the record, and otherwise being fully advised, the Court RECOMMENDS that the Motion be DENIED for the reasons that follow.[2]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. The Crimes and Charges

         On October 31, 2016, Defendant was charged by criminal complaint with violations of: (1) 18 U.S.C. § 2422(b) (Enticing a Child to Engage in Unlawful Sexual Activity), (2) 18 U.S.C. §§ 2251(a) & (e) (Enticing a Child to Produce Child Pornography), and (3) 18 U.S.C. § 1470 (Knowingly Transmitting Obscene Material to a Minor). Compl., ECF 3. On May 24, 2017, Defendant pleaded guilty to an information charging him with Enticement of a Minor in violation of 18 U.S.C. § 2422(b) and Receipt of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2). See ECFs 24, 27, 28. The following factual basis-which Defendant admitted to in his Plea Agreement and reaffirmed on the record at his plea hearing-supported these charges:

From on or about July 29, 2015, until on or about November 15, 2015, [Defendant] knowingly received child pornography that was sent through the internet. [Defendant] also knowingly persuaded, induced, enticed, and coerced someone [he] knew to be a minor to engage in sexual activity for which [he] could be charged with a criminal offense. Specifically, [Defendant] knowingly requested the minor produce pornographic images of himself, which constitutes a federal crime under 18 U.S.C. § 2251, and, as a 37-year-old male, unlawfully and intentionally attempted to meet with a child between thirteen to sixteen years of age who is not [his] spouse in order to engage in sexual intercourse, fellatio, or anal intercourse, which is a violation of New Mexico state law under NMSA §§ 30-9-ll(A), (G)(1).
During the above-referenced period, [Defendant] was the user of the Facebook account bearing username Michael Sepulveda and user ID 100004687305500. [Defendant] began communicating online with someone using Facebook Messenger and [he] knew that the user of the Facebook account with whom [he] was chatting was a minor male. In order to persuade, induce, entice, and coerce the minor into engaging in unlawful sexual activity with [him], [Defendant] held [himself] out online to be a teenage female, sent the minor male images of female genitalia and heterosexual pornography, had numerous sexually explicit conversations with the minor male during which [he] discussed engaging in sexual activity with the minor, and [he] made arrangements to meet with the minor in order to engage in sexual activity.
[Defendant] also requested that the minor take sexually explicit photos of himself on several occasions and send them to [him] through Facebook Messenger. Between on or about July 29, 2015, and on or about November 15, 2015, in response to [his] requests to the minor, [Defendant] received five pornographic images of the minor. The photos depict the penis of a minor male between thirteen and fifteen years old. [Defendant] acknowledge[d] that these images are sexually explicit and qualify as a lascivious exhibit of the genitals of the minor pursuant to 18 U.S.C. § 2256(2)(A)(v).
When [he] engaged in the above conduct, [Defendant] was in the District of New Mexico and was using a cell phone to connect to the internet in order to access Facebook and Facebook Messenger. At the time [Defendant] engaged in this conduct, no Facebook servers were located in the State or District of New Mexico. As such, the conversations [he] had with the minor, the images [he] sent, and the pictures that [Defendant] received from the minor male over Facebook Messenger had to have traveled in interstate commerce. Moreover, when [Defendant] asked the minor to send [him] the photos, [Defendant] knew he would send them through the internet.

         ECF 27, 5-6 (“Plea Agreement”); See Plea Hr'g Tr., ECF 33, 16:1-12, 19:5-14 (“Plea Hearing”).[3]

         B. The Plea Agreement

         The parties entered into a written Plea Agreement. ECF 27. In relevant part, the Plea Agreement required Defendant to plead guilty to the above-described charges and waive the following rights: (1) to be charged by indictment; (2) to plead not guilty; (3) to have a trial by jury; (4) to confront and cross-examine witnesses and to call witnesses to testify for the defense; and (5) against self-incrimination. Id. ¶ 2(a)-(e). In exchange, the parties stipulated pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) that “a term of imprisonment within a range of not less than twenty (20) nor more than twenty-five (25) years that is followed by a lifetime term of supervised release” would be appropriate. Id. ¶ 14a. Defendant also “agree[d] to pay restitution in the amount of $7, 500, for a total of $15, 000, to the victims, ” and that “an unanticipated amount of a restitution order w[ould] not serve as grounds to withdraw [his] guilty plea.” Id. ¶¶ 16-17. Finally, Defendant also agreed to waive his right to appeal or to seek post-conviction collateral relief on any issue other than ineffective assistance of counsel. Id. ¶ 29.

         The United States agreed that, “[p]rovided that the [D]efendant fulfills the [D]efendant's obligations as set out [in the Plea Agreement], ” it would “not bring additional criminal charges against the [D]efendant arising out of the facts forming the basis of the present information, including charges under 19 U.S.C. § 2251: Attempted Production of Child Pornography and 18 U.S.C. § 1470: Sending Material to a Minor.” Id. ¶ 30. The parties otherwise reserved their rights to litigate any other aspect of the Defendant's sentence including the applicability of any other sentencing guideline provision. Id. ¶ 10.

         Importantly, the Plea Agreement featured a section entitled “VOLUNTARY PLEA, ” which because of its centrality to the outcome of this Motion is worth quoting in full:

The [D]efendant agrees and represents that this plea of guilty is freely and voluntarily made and is not the result of force, threats or promises (other than the promises set forth in this plea agreement and any addenda). The [D]efendant also represents that the [D]efendant is pleading guilty because the [D]efendant is in fact guilty.

Id. ¶ 32 (emphasis added).

         As part of the Plea Agreement, Defendant also acknowledged that the “agreement ha[d] been read to [him]” and that he had “carefully discussed every part of it with [his] attorney.” Id. at 13 (signature block). He further attested:

I understand the terms of this agreement, and I voluntarily agree to those terms. My attorney has advised me of my rights, of possible defenses, of the elements of the offense(s) for which he is charged, of the sentencing factors set forth in 18 U.S.C. § 3553(a), of the relevant Sentencing Guideline provisions, and of the consequences of entering into this agreement. No promises or inducements have been given to me other than those contained in this agreement. No. one has threatened or forced me in any way to enter into this agreement. Finally, I am satisfied with the representation of my attorney in this matter.

Id. (emphasis added).

         Defendant's counsel, Mario Esparza, also attested that:

I am the attorney for MICHAEL RAY SEPULVEDA. I have carefully discussed every part of this agreement with my client. Further, I have fully advised my client of his rights, of possible defenses, of the elements of the offense(s) for which he is charged, of the sentencing factors set forth in 18 U.S.C. § 3553(a), of the relevant sentencing guidelines provisions, and of the consequences of entering into this agreement. To my knowledge, my client's decision to enter into this agreement is an informed and voluntary one.

Id. (emphasis added).

         C. The Plea Hearing

         Defendant pleaded guilty pursuant to this Plea Agreement on May 24, 2017. See Clerk's Mins., ECF. 28, and Plea Hr'g Tr., ECF. 33. During the plea colloquy, during which Defendant answered the Court's questions under oath and subject to the penalty of perjury, he admitted that he was born on April 25, 1978. Plea Hr'g Tr. 6:21-22. He denied being under the influence of any drugs or alcohol, except for prescribed medication. Id. at 6:23-25. Defendant informed the Court that he was currently taking medication for bipolar disorder, schizophrenia, seizures, and HIV. Id. at 7:1-5. He affirmed that nothing about the medication nor the conditions for which he was taking them interfered with his understanding of the proceedings. Id. at 7:6-10. He also relayed that, in addition to the conditions already identified, he was receiving treatment for neuropathy and seizures, and he affirmed that this treatment did not interfere with his understanding of the proceedings. Id. at 7:11-22. Defendant then attested that he was not forced or threatened in any way to plead guilty. Id. at 7:23-8:2.

         Defendant affirmed that he was waiving or giving up, among other things, the right to proceed before a district judge, the right to be charged by a grand jury, the right to go to trial, and all the rights he would have at trial, in exchange for his plea deal. Id. at 8:3-9:13. The Court then formally advised Defendant of the minimum and maximum penalties that each of the two charges carried. Id. at 9:17-11:1. Defendant affirmed that he and his counsel, Mr. Esparza, had discussed the facts, circumstances, and any possible defenses regarding these charges, and Defendant admitted he was completely satisfied with the advice and representation he had received. Id. at 11:2-8.

         The Court then focused on the Plea Agreement. Of importance to the instant Motion is the following dialogue:

THE COURT: The last document that I've been given for you that I want to go over with you is your plea agreement. Yours is 13 pages long. On page, on the final page your type written name appears, there's a signature above it, did you sign your plea agreement?
DEFENDANT SEPULVEDA: Yes, your Honor.
THE COURT: Before you signed it, did you read it from beginning to end?
DEFENDANT SEPULVEDA: Yes, your Honor.
THE COURT: Before you signed it, did Mr. Esparza explain it to you, explain to you what it really means, and then answer any questions about it that you had?
DEFENDANT SEPULVEDA: Yes, your Honor.
THE COURT: Mr. Sepulveda, I don't think you're a lawyer but-but if you are, I'd be surprised. I think somebody would have told me. But nonetheless, did you seek to the best of your ability before you signed this plea agreement to understand every term and condition that it contains?
DEFENDANT SEPULVEDA: Yes, your Honor.
THE COURT: Okay. Are there any other questions about your plea agreement that you would like to ask Mr. Esparza today before we proceed any further?
DEFENDANT SEPULVEDA: No, your Honor.
THE COURT: Mr.-oh, and did you sign your plea agreement voluntarily?
DEFENDANT SEPULVEDA: Yes, your Honor.

Id. at 11:9-12:9. Mr. Esparza then summarized-with the help of the Court's supplementation of information regarding the required restitution-the important provisions of the Plea Agreement, i.e., the agreement that the sentencing range will be between 20-25 years and Defendant's ability to present mitigating evidence at sentencing. Id. at 12:10-14:17. Defendant confirmed that Mr. Esparza's summary, further informed by the Court's own additions, mirrored his understanding of the agreement. Id. at 14:18-21. The Court then reiterated the important terms: 20-25 years in prison, followed by a lifetime of supervised release, along with restitution and the possibility of a special penalty. Defendant again affirmed his understanding of these terms. Id. at 16:1-21. The Court finished this discussion by informing Defendant, in the unlikely event the sentencing judge rejects the Plea Agreement, of his options to withdraw his guilty plea and go to trial, maintain his guilty plea and accept the sentence imposed within the minimum and maximums, or withdraw his guilty plea and attempt to renegotiate a new plea agreement. Id. at 17:2-20.

         After Defendant pleaded guilty to both counts, id. at 19:11-20, and affirmed the factual basis set forth in Plea Agreement as true, id. at 19:12-14, the Court accepted Defendant's guilty plea, finding that:

[Defendant was] competent and capable of entering an informed plea, [he was] aware of the nature of the two charges against [him] and the consequences of [his] plea, [his] plea [was] knowing and voluntary and supported by sufficient facts.

Id. at 19:22-20:1.

         Following the plea hearing, the Court received a letter from Defendant on June 2, 2017. See ECF 30. The letter, addressed to defense counsel Mario Esparza, stated that its purpose was to “memorialize [Defendant's] growing concern with regard to the handling of [his] case. Id. at 1. In the letter, Defendant “reiterate[d] [his] profound interest and desire to avoid wasting governing resources, and to enter into an equitable plea deal, ” but “not at the expense of [his] rights.” Id. He requested (1) “to be moved to a new facility, ” (2) “copies of plea deal along with the ...


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