United States District Court, D. Nevada
J. Dawson District Court Judge.
before the Court is Defendant's Motion to Vacate, Set
Aside, or Correct the Sentence Pursuant to 28 U.S.C. §
2255 (#344). The Government filed a response (#352) to which
Defendant replied (#362).
December 17, 2014, a federal grand jury returned an
indictment charging Defendant and his co-conspirators with
one count of conspiracy to commit wire fraud, and thirty-one
counts of wire fraud. On May 21, 2015, Defendant signed a
plea agreement, pleading guilty to conspiracy to commit wire
fraud in violation of 18 U.S.C. § 1349. On February 23,
2016, Defendant was sentenced to a seventy-seven month term
of imprisonment, consistent with the terms of the plea
agreement. On February 3, 2017, Defendant filed the present
motion, arguing ineffective assistance of counsel for his
attorney's failure to advise him of the potential
applicability of a minor role reduction under United States
Sentencing Guidelines Section 3B1.2.
to 28 U.S.C. § 2255, a prisoner may move to vacate, set
aside, or correct a sentence where the sentence violates the
Constitution or federal law, the sentencing court lacked
jurisdiction, or the sentence exceeds the statutory maximum.
A sentence may be collaterally attacked only where it
constitutes a “fundamental defect which inherently
results in a complete miscarriage of justice.” U.S.
v. Addonizio, 442 U.S. 178, 185 (1979); Hill v.
U.S., 368 U.S. 424, 428 (1962).
establish ineffective assistance of counsel, a defendant must
show that (1) counsel's performance was
“deficient” in that it “fell below an
objective standard of reasonableness;” and (2) the
deficient performance “prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687-88
(1984). Deficient performance is demonstrated when
“counsel made errors so serious that the counsel was
not functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. There
is a strong presumption that counsel's conduct falls
within “the wide range of reasonable professional
assistance.” Id. at 689. A tactical decision
by counsel with which the defendant disagrees cannot form the
basis of an ineffective assistance claim. Id.;
Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).
Rather, a movant must establish that failure to pursue the
tactic was “outside the wide range of professionally
competent assistance.” U.S. v. Houtchens, 926
F.2d 824, 828 (9th Cir. 1991).
prejudice, a defendant must demonstrate “that there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
694. The defendant must state specific facts that show but
for counsel's deficient performance, a more favorable
result would have resulted. James v. Borg, 24 F.3d
20, 26 (9th Cir. 1994). The defendant does not prove
prejudice by listing the things he thinks his attorney should
have done, and speculating that, had he done them, there
might have been a different outcome. See Gonzalez v.
Knowles, 515 F.3d 1006, 1015-16 (“[Defendant] does
not contend that he actually suffered from a mental illness;
he merely argues that if tests had been done, and
if they had shown evidence of some brain damage or
trauma, it might have resulted in a lower sentence.
Such speculation is plainly insufficient to establish
prejudice.”). To show prejudice in the sentencing
context, a petitioner must prove that, absent counsel's
alleged deficient performance, the result of the sentencing
proceeding would have been different. Glover v.
U.S., 531 U.S. 198, 203-04 (2001). “Failure to
satisfy either prong of the Strickland test obviates
the need to consider the other.” Rios v.
Rocha, 299 F.3d 796, 805 (9th Cir. 2002).
No Deficient Performance
argues his counsel was deficient for failing to bring up and
potentially seek an additional two-point sentencing reduction
for his alleged minor role, even though pursuing that
argument would have been a breach of his plea agreement.
However, the facts do not support that Defendant would have
received a minor role reduction. Defendant played a key role
in the fraudulent scheme, he was not less culpable than most
other participants, nor could his role be described as
minimal. See U.S.S.G. S 3B1.2, at n. 5; U.S. v.
Laurienti, 611 F.3d 530, 552 (9th Cir. 2010) (holding a
defendant who was not “the mastermind, ” nor even
an essential character to the scheme at hand did not merit a
minor role adjustment). Defendant participated in the
conspiracy for nearly one year, knowingly made materially
false statements to induce victims to pay money, and then
engaged in wire fraud to facilitate the transfer of the money
from the victims to the conspirators. That he received less
benefit than others did does not make his participation any
less critical, knowing, or impactful. Counsel's decision
not to present and pursue what would have been a frivolous
argument is no serious error and that Defendant simply
disagrees with that tactical decision without more is not
No Prejudice Resulted
Defendant failing to show any deficient performance, he also
does not show that any prejudice resulted from counsel's
choice not to pursue a minor role reduction. Defendant would
not have qualified for a minor role reduction, and
Defendant's plea agreement afforded him a much shorter
sentence of imprisonment than he likely otherwise would have
received had he not entered into the agreement. Defendant
received a seventy-seven month sentence- the Pre-Sentencing
Report's alternative Guidelines calculation was a
sentence of 110 to 137 months with a specific recommendation
of 120 months. That Defendant simply wished to be better
informed on the breadth of the relevant guidelines that may
or may not have applied to him did not prejudice the defense.
Defendant's speculation of what might have happened had
counsel taken a different course of action does not prove
C.No Evidentiary Hearing ...