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Davila v. United States

United States District Court, D. New Mexico

December 31, 2019

ANTHONY R. DAVILA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 420), and Memorandum in Support (Doc. 421), both filed on January 22, 2018. Respondent the United States of America (“the Government”) responded in opposition to the motion on May 18, 2018 (Doc. 441), and Defendant filed a reply in support of it on June 28, 2018. (Doc. 460.) United States District Judge Robert C. Brack referred this matter to me for proposed findings and a recommended disposition on January 23, 2018. (Doc. 423.)

         I have meticulously reviewed the pleadings and attachments in this civil proceeding and the record in the underlying criminal case. Because the motion, exhibits, and record conclusively establish that Mr. Davila is not entitled to relief, an evidentiary hearing is unnecessary. 28 U.S.C. § 2255(b); United States v. Flood, 713 F.3d 1281, 1291 (10th Cir. 2013); United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000). Having carefully considered the parties' submissions, the civil and criminal record, and the relevant law, I recommend that Mr. Davila's Motion be DENIED.

         I. Factual Background and Procedural History

         This case grew out of a United States Drug Enforcement Administration (“DEA”) wiretap investigation into a methamphetamine drug trafficking operation in Silver City, New Mexico. (Doc. 295 at 5.) Mr. Davila, one of 13 co-conspirators, was identified as a street-level distributor and money courier for the operation. (Id.) Monitored calls revealed that Mr. Davila was present in January 2015 for the pickup of .45 grams of methamphetamine and the collection and delivery of money for the purchase of 1.3 grams of methamphetamine. (Id. at 5-6.) Also, in several monitored calls, Mr. Davila was captured discussing his involvement in and plans for the distribution of high-grade marijuana. (Id.)

         On April 28, 2015, the Government charged Mr. Davila and several co-defendants in a 34-count indictment with conspiracy to distribute methamphetamine and various crimes related to that conspiracy. (Doc. 2.) Specifically, in Count 1, Mr. Davila was charged with conspiracy to distribute methamphetamine, contrary to 21 U.S.C. § 841(a)(1) and (b)(1)(C), from on or about March 27, 2014 through about April 28, 2018; and, in Counts 20 and 23, he was charged with using a telephone on or about January 12, 2015 and January 16, 2015, to further the commission of a drug-trafficking crime, i.e., conspiracy to possess with intent to distribute a controlled substance, contrary to 21 U.S.C. § 846, in violation of 21 U.S.C § 843(b) and 18 U.S.C. § 2. (Id. at 1-2, 14-15.)

         Mr. Davila was arrested on these charges at his home on April 30, 2015, at which time law enforcement officers executing a search warrant found 233.5 net grams of marijuana, seven firearms, over $16, 000 in cash, a scale, and a money counter. (Doc. 295 at 6; Doc. 312-1.) The marijuana discovered in Mr. Davila's residence, combined with the amount of marijuana for which he was “accountable” by virtue of the DEA's investigation into his and his co-defendants' activities, amounted to 3, 622.04 kilograms. (Doc. 295 at 6.)

         The Court appointed attorney Margaret Strickland to represent Mr. Davila. (Doc. 39.) Following a detention hearing, the Court released Mr. Davila pursuant to an Order Setting Conditions of Release. (Docs. 93, 97.) However, the Court subsequently revoked his conditions of release and remanded him back into custody for driving under the influence of alcohol, causing an accident, and fleeing from law enforcement, resulting in state law charges of aggravated fleeing a law enforcement officer, homicide or great bodily injury by vehicle, and aggravated driving while under the influence of intoxicating liquor and/or drugs. (Docs. 171, 185, 193, 194.)

         On August 17, 2016, pursuant to a plea agreement, Mr. Davila pled guilty to Count 1 of the indictment, specifically admitting the following facts:

From on or about March 27, 2014, and continuing to on or about April 28, 2015, I worked with my co-defendants and others to distribute methamphetamine in Silver City, New Mexico. I am responsible for the distribution of approximately 500 grams to 1.5 kilograms of methamphetamine. In furtherance of our drug trafficking activities, I did the following:
. January 12, 2015, I delivered methamphetamine payments from two of my co-defendants to another co-defendant at the direction of another co-defendant.
. On January 16, 2015, at the direction of a co-defendant, I delivered $3000 to a methamphetamine source of supply and then delivered methamphetamine to another co-defendant.

(Doc. 269 at 2, 4.)

         In the plea agreement, Mr. Davila acknowledged his understanding that the maximum penalty that the Court could impose for Count 1 was a period of 20 years' imprisonment, a fine not to exceed $1, 000, 000, a mandatory term of supervised release of at least three years, and a mandatory special penalty assessment of $100. (Id. at 2.) The plea agreement also stated that, if he “truthfully provid[ed] to the Government, before sentencing, all information and evidence concerning the offenses that were part of the same course of conduct underlying th[e] agreement[, ]” Mr. Davila might be eligible for “the ‘safety valve' provisions set forth at 18 U.S.C. § 3553(f)(1)-5 and U.S.S.G § 5C1.2, ” which would entitle him to a reduction of two levels from the base offense level calculated under the sentencing guidelines. (Id. at 2-3, 5-6.) Further, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), the Government stipulated to a reduction of up to three levels from the base offense level under the sentencing guidelines for acceptance of responsibility, contingent upon Mr. Davila's “appropriate oral or written statement to the United States probation officer” preparing the presentence report, and to a reduction of two levels because Mr. Davila was “a minor participant in the criminal activity underlying [the plea] agreement.” (Id. at 3, 5.)

         The United States Probation Office issued a Presentence Investigation Report (“PSR”) on October 25, 2016 and a revised PSR on December 2, 2016.[1] (Docs. 286, 295.) Both the original and revised PSRs reflected that Mr. Davila was in a criminal history category of I and that his base offense level was 30, with the original PSR attributing 1.75 kilograms of methamphetamine to him and the revised PSR reflecting responsibility for “no less than 1.8 kilograms of mixtures and substances containing methamphetamine.”[2] (Doc. 286, ¶¶ 5, 13; Doc. 295, ¶¶ 9, 16.) Despite the fact that Mr. Davila had not debriefed at the time of issuance, the original PSR assumed without any analysis that Mr. Davila was safety-valve eligible, presumably in anticipation of his meeting all criteria for eligibility prior to sentencing, and thus afforded him a two-level reduction from his base offense level in accordance with U.S.S.G. § 2D1.1(b).[3] (Doc. 286 at 6-7.)

         The revised PSR, in contrast, did not award a safety-valve reduction and instead provided for a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm in connection with the offense, based on the discovery of seven firearms in Mr. Davila's residence at the time of his arrest. (Compare Doc. 295 at 6-8 with Doc. 286 at 6-7.) Also, although this did not change his base offense level, the revised PSR reflected as relevant conduct that Mr. Davila was involved in trafficking marijuana, including a January 2015 agreement to purchase four pounds for $8, 100, and possession of 233.5 net grams found in his residence at the time of his arrest. (Doc. 295, ¶¶ 9, 10.) Thus, accounting for the negotiated minor role and acceptance of responsibility adjustments, the initial PSR reflected a total adjusted offense level of 23 and a guideline imprisonment range of 46-57 months, (Doc. 286 at 7), while the revised PSR reflected a total adjusted offense level of 27 and an imprisonment range of 70-87 months. (Doc. 295 at 8.)

         Ms. Strickland filed a Sentencing Memorandum in November 2016. (Doc. 292.) In it, she argued that Mr. Davila should receive a four-level reduction based on his “minimal role” in the conspiracy, stating:

Mr. Davila's [PSR] gives a two[-]level role adjustment for minor participant. In fact, Mr. Davila's only role in this case was making deliveries on two occasions for his brother [co-defendant Daniel Lee] Jacquez. Unfortunately for Mr. Davila, the money delivered on one of those occasions was for more than a kilogram of methamphetamine, which gives Mr. Davila an extremely high offense level. The [PSR] indicated Mr. Davila acted solely on the request of his brother Daniel Jacquez. He did not direct the actions of any other member of the organization and had no control of the drug conspiracy. Merely delivering money on two occasions makes him plainly the least culpable amongst his codefendants who have actually distributed the large amounts of methamphetamines and a minimal participant eligible for a further two[-]level reduction.

(Id. at 3.) She also argued that Mr. Davila should receive a further two-level reduction because his at-issue conduct was motivated solely by his familial relationship with his brother, and because he had no control over the drug enterprise and no knowledge of its scope and structure. (Id. at 3-4.) Had these reductions been adopted by the sentencing judge, Mr. Davila's offense level would have been 19, with a corresponding sentencing range of 30-37 months. (Id. at 4.) Ms. Strickland further argued that a variance resulting in a 24-month term of imprisonment was appropriate under the relevant sentencing considerations in 18 U.S.C. § 3553 and U.S.S.G. §§ 5K2.20 and 5H1.4. (Id.) Ms. Strickland reiterated these arguments at Mr. Davila's sentencing hearing. (Doc. 435 at 6-7, 9.)

         In addition, Ms. Strickland filed an Objection to Amended PSR in December 2016. (Doc. 310.) In the objection, she argued that the two-level enhancement for possessing a weapon was inappropriate in Mr. Davila's case because: (a) under the sentencing guidelines, the enhancement under U.S.S.G. § 2D1.1 applies only when a “weapon was present” and there was no evidence that a weapon was present when Mr. Davila was involved in transporting money or drugs; and, (b) the guns were found on April 30, 2015, two days outside the time frame relevant to his plea agreement and three months after the charged conspiracy. (Id.) Ms. Strickland raised this objection again in open court during Mr. Davila's sentencing hearing, where she argued that the firearm enhancement should not apply because the guns were discovered “months after” the conduct to which Mr. Davila was pleading guilty, and no methamphetamine was discovered in Mr. Davila's home. (Doc. 435 at 6-7.)

         The sentencing judge rejected Ms. Strickland's arguments regarding the firearm enhancement and the additional guidelines departures for which she advocated on Mr. Davila's behalf. (Id. at 13.) Instead, consistent with the revised PSR, the Court found that Mr. Davila's guideline offense level was 27, which corresponds with a term of imprisonment of 70-87 months. (Id. at 13.) However, in light of certain mitigating factors, [4] the Court varied downward, imposing a 60-month term of imprisonment. (Id. at 15-16.) Pursuant to the plea agreement, following sentencing the Government stipulated to dismissal of the remaining counts against Mr. Davila. (Doc. 269 at 7; Doc. 326 at 1.)

         Mr. Davila did not file a direct appeal to challenge his sentence. (Doc. 420 at 4.) Instead, he filed the present Section 2255 motion, arguing that Ms. Strickland was ineffective during the plea bargaining and sentencing phases of his case. (Docs. 420, 421.) In support of his motion, Mr. Davila argues that: (1) Ms. Strickland failed to adequately advise him during the plea-bargaining phase of the case, (Doc. 420 at 4); (2) Ms. Strickland failed to object to the firearm enhancement in the amended PSR or to argue that he was eligible for a safety-valve reduction, (id.; Doc. 421 at 5-6); and, (3) there is an unjustifiable disparity between his sentence and that of a similarly situated co-defendant, Gilbert Moreno. (Doc. 420 at 4; Doc. 421 at 6.) On these bases, Mr. Davila argues that the Court should vacate his sentence and resentence him to a range of 27-33 months' imprisonment. (Doc. 421 at 7.)

         II. ...


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