United States v. Aguilar

UNITED STATES, Plaintiff, v. MIGUEL AGUILAR, Defendant.

CRIMINAL NO. 11-10417-NMG

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

August 8, 2018

REPORT AND RECOMMENDATION RE: MOTION PURSUANT TO 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

(DOCKET ENTRY # 497)

BOWLER, U.S.M.J.

Pending before this court is a pro se motion filed by defendant Miguel Aguilar ("defendant") to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 ("section 2255"). (Docket Entry # 497). The United States of America ("the government") filed an opposition (Docket Entry # 527) and defendant submitted a reply to the government's opposition. (Docket Entry # 528). The matter is therefore ripe for review.

PROCEDURAL BACKGROUND

Defendant raises two grounds for vacating the conviction and sentence. The first ground is an allegation of ineffective assistance of counsel in violation of defendant's Sixth Amendment rights. Defendant argues that trial counsel was ineffective because: (1) trial counsel did not "properly explain [to defendant] the extent of the Safety Valve provision and the difference vis-à-vis a proffer session upon a cooperation agreement"; (2) trial counsel failed to argue that defendant satisfied safety valve requirements; and (3) trial counsel failed "[t]o request a mitigating role in the charged offense." (Docket Entry ## 497, 511). Although not in the section 2255 motion itself, defendant asserts in the supporting memorandum a second ground for vacating the conviction and sentence on the basis that "the plea agreement was not made voluntarily, knowngly, [sic] and intelligently." (Docket Entry # 511, p. 10). Ultimately, defendant requests the section 2255 motion be granted and his sentence vacated.

FACTUAL BACKGROUND

I. Superseding Indictment

On January 16, 2014, a grand jury sitting in the United States District Court for the District of Massachusetts issued a Superseding Indictment charging defendant with: (1) conspiracy to possess with intent to distribute and to distribute cocaine and heroin in violation of 21 U.S.C. § 846 ("Count I"); and (2) possession with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 841 ("Count II"). (Docket Entry # 193). In the absence of death or serious bodily injury, these charges carry a statutory range of imprisonment of not less than ten years and not more than life. See 21 U.S.C. § 841(b)(1).

II. Plea Agreement

On June 4, 2015, defendant entered into a binding plea ("the plea agreement") with the government pursuant to Fed. R. Crim. P. 11(c)(1)(C). (Docket Entry # 392). Under the agreement, defendant agreed to plead guilty to: (1) conspiracy to possess with intent to distribute and to distribute cocaine and heroin in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 841(a)(1). (Docket Entry # 392). The parties agreed in the plea agreement that defendant's "base offense level is 34, because the equivalent of at least fifty kilograms of cocaine but less than 150 kilograms of cocaine are attributable to him." (Docket Entry # 392). The plea agreement notes that, "based on defendant's prompt acceptance of personal responsibility for these offenses of conviction in this case, the adjusted offense level is reduced by three." (Docket Entry # 392).

The plea agreement sets forth that "the U.S. Attorney and Defendant agree that . . . incarceration for a period of time not less than 87 months and not more than 120 months" is "a reasonable and appropriate disposition of this case." (Docket Entry # 392). Further, it states, "Defendant understands and acknowledges that, if the Court declines to apply USSG § 5C1.2 and 18 U.S.C. § 3553(f), Defendant will not receive an additional two-level reduction pursuant to USSG § 2D1.1(b)(17),but will receive a sentence at or above the statutory mandatory minimum term of years." (Docket Entry # 392). The plea agreement continues:

The U.S. Attorney may, at her sole option, be released from her commitments . . . if at any time between Defendant's execution of this Plea Agreement and sentencing, Defendant: (a) Fails to admit a complete factual basis for the plea; (b) Fails to truthfully admit Defendant's conduct in the offenses of conviction; (c) Falsely denies, or frivolously contest, relevant conduct for which Defendant is accountable under USSG § 1B1.3.

(Docket Entry # 392).

Defendant acknowledged in the plea agreement that "I have had this letter read to me in my native language in its entirety and discussed it with my attorney" and "I am satisfied with the legal representation provided to me by my attorney." (Docket Entry # 392). Defendant also attested: "I understand the crimes to which I have agreed to plead guilty, [and] the mandatory minimum and maximum penalties for those offenses"; that he and his attorney "have had sufficient time to meet and discuss my case"; and "I am entering into this Plea Agreement freely, voluntarily, and knowingly because . . . I believe this Plea Agreement is in my best interest." (Docket Entry # 392).

At defendant's Fed. R. Crim. P. 11 ("Rule 11") hearing on June 15, 2015, defendant answered, "Yes," when the court asked if he was "fully satisfied with the counsel, representation and advice given" by his trial counsel. (Docket Entry # 522). Thegovernment reiterated the terms of the plea agreement, again noting that, "if the safety valve were not met, 120 months would be the agreed-upon recommendation of the parties." (Docket Entry # 522, p. 8). Defendant answered, "Yes," when the court asked "are those the terms of your agreement with the Government, as you understand them?" (Docket Entry # 522, p. 9).

According to the government, "in September, 2010, DEA Agents in Boston, Massachusetts, began an investigation into drug-trafficking and money-laundering activities of [a third party] and his criminal associates." (Docket Entry # 522, p. 13). The government attested in the Rule 11 hearing that if the matter had proceeded to trial, it would have "introduced competent evidence proving . . . beyond a reasonable doubt" that defendant "was a drug and money transporter for the . . . organization and other drug distributors," that he "used his tractor trailer truck to transport cocaine and heroin from California to the east coast where it was received by [co-defendants] and others," and that he "received drug proceeds and transported them back to California for remission to drug suppliers in Mexico." (Docket Entry # 522, p. 13). The government stated that "on October of 19th, 2011, [defendant] delivered 40 kilograms of cocaine to [co-defendant] and received $570,000 in drug proceeds from him. Earlier that day, Agentshad intercepted telephone calls between and among co-Defendants . . . during which [a co-defendant] stated in lightly coded language that the drugs would arrive that day." (Docket Entry # 522, p. 14). Investigators "observed a male approach [defendant's] truck with a weighted black bag and get into the passenger's side of the cab. Shortly thereafter, the male exited the truck with a weighted red and black bag, which he put inside a Chevrolet Suburban." (Docket Entry # 522, p. 14). "Agents recovered 40 kilograms of cocaine from a red and black bag in the back seat of the Suburban." (Docket Entry # 522, p. 15). "Agents recovered $570,000 in cash, ten kilograms of cocaine and five kilograms of heroin from behind the panels of the interior walls of the [defendant's truck]." (Docket Entry # 522, p. 15). Defendant answered "No," when asked by the court "Do you disagree with anything that . . . the Government [says it] would be able to prove?" (Docket Entry # 522, p. 15). Thereafter, defendant pled guilty to both Count I and Count II. (Docket Entry # 522). The court conditionally accepted the plea agreement pending the court's receipt and review of a presentence report. (Docket Entry # 522).

III. Sentence, Appeal and Section 2255 Petition

At the sentencing hearing on September 9, 2015, the court reported that it received and reviewed the presentence report, the sentencing memorandum, and the attached reports. (DocketEntry # 457). When the court asked, "there are no objections to the presentence report; is that correct?[,]" trial counsel replied, "That's correct." (Docket Entry # 457). Defendant was given a three-level downward adjustment from an offense level 34 to an offense level of 31 for his prompt acceptance of responsibility. (Docket Entry # 457).

During the hearing, the court stated, "The Government contends that [defendant] is not so entitled [to a two-level downward adjustment under the safety valve provision] because he has not properly proffered to the Government and, therefore, does not qualify for the fifth element of the so-called section for being entitled to this adjustment."¹ (Docket Entry # 457). When the court asked, "Do counsel wish to address that issue further at this time?[,]" trial counsel replied, "No, YourHonor." (Docket Entry # 457). When the court asked, "Do counsel agree with [the sentencing] calculations?[,]" trial counsel replied "Yes, Your Honor." (Docket Entry # 457). At the hearing, the government explained its sentencing position, which included the following:

[T]here was an opportunity for [defendant] to make a safety valve proffer, and we afforded him as many opportunities as he wished to do that, but he failed to do so. And I think [defendant's] proffers were misleading, and it was clear that he was reluctant to provide even the basic information about his offense. . . . I think that, had this Defendant successfully completed the safety valve proffer, he would have been right in the same range [as co-defendants]. But for reasons we may never know, [defendant] elected not to do so, so he is at the mandatory minimum.

(Docket Entry # 457).

Speaking to defendant, the court stated:

[Y]ou could have earned a substantial discount, roughly 25 percent, had you truthfully proffered to the

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