United States v. Valdez

973 F.3d 396

UNITED STATES of America, Plaintiff-Appellee

v.Lauro Pablo VALDEZ, Jr., Defendant-Appellant

No. 18-40495

United States Court of Appeals, Fifth Circuit.

FILED September 1, 2020

Paula Camille Offenhauser, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee

Jose Eduardo Pena, Law Offices of J. Eduardo Pena, Laredo, TX, for Defendant-Appellant

Before WIENER, ENGELHARDT, and OLDHAM, Circuit Judges.

KURT D. ENGELHARDT, Circuit Judge:

Defendant-Appellant Lauro Valdez, Jr., federal prisoner # 76629-080, appeals the denial of his 28 U.S.C. § 2255 motion to set aside his conviction for being a felon in possession of a firearm. Valdez advanced several grounds for relief in the district court, but this court granted a certificate of appealability as to only one: Valdez's claim that before he pleaded guilty, he received ineffective assistance of counsel because his trial attorney underestimated the range of imprisonment recommended by the United States Sentencing Guidelines ("Guidelines"). United States v. Valdez , No. 18-40495 (5th Cir. Feb. 28, 2019) (one-judge order). The evidence does not support Valdez's assertion that there is a reasonable probability that he would not have pleaded guilty if he had been adequately counseled as to his actual Guidelines sentencing range, so we AFFIRM.

I. Background

After a jury was empaneled for his trial, Valdez pleaded guilty—with no plea agreement—to one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Valdez used the firearm to commit murder, so the Guidelines recommended a range of 324 to 405 months’ imprisonment. Valdez's attorney estimated that his Guidelines range would be between twenty-four and thirty-three months, but the district court, after two colloquies pursuant to Fed.R.Crim.P. 11(b), accepted the guilty plea and sentenced Valdez to the statutory maximum term of 120 months in prison.

The conduct giving rise to Valdez's conviction took place in 2013, when Valdez shot and killed Marcelino Rodriguez outside of Valdez's home. Video from a surveillance system that Valdez had installed showed Rodriguez approaching the house. Rodriguez appeared to have something in his hand, but suspicion that it was a firearm was not borne out, as no such weapon was found near his body. Rodriguez stopped outside of a metal gate positioned a few feet from Valdez's front door. Valdez and his wife told officers after the shooting that Rodriguez was pounding on the gate and shouting that he was going to kill Valdez. Valdez then retrieved a handgun from his bedroom and fired several shots at Rodriguez, knocking him down. The video showed a bleeding Rodriguez on the ground outside the metal gate gesturing with empty hands. Thirty-nine seconds after Rodriguez fell, Valdez walked up to Rodriguez—who at that point was lying on the ground about twelve feet from Valdez's front door—and fired three more rounds into him.

Valdez was arrested and charged in state court with murder. While the state case was pending, Valdez was charged in federal court for being a felon in possession of a firearm.¹ In the federal matter, Valdez planned to assert a justification defense. Someone had fired shots at Valdez's house ten days before the killing of Rodriguez, and Valdez claimed that he had received threatening phone calls. Valdez argued that he was justified in possessing the firearm because, in the context of those prior incidents, he feared for his life when Rodriguez arrived outside his door and yelled threats.

Valdez decided to go to trial for the possession charge. On October 19, 2015, after the jury had been selected, the district court conducted a hearing on whether to allow Valdez to assert the affirmative defense of justification at trial. The court clarified that Valdez would not be permitted to raise his affirmative defense unless he could make a prima facie showing on all four elements² of justification. As the court explained, the first element is that the Defendant was under an unlawful present, imminent, and impending threat of such a nature as to induce a well-grounded fear of death or serious bodily injury to himself or to a family member. As to the "imminent and impending threat" element, the Government pointed out that Valdez possessed the gun well before Rodriguez arrived at the house, as evidenced by Valdez's wife's statement to the police that Valdez had placed the gun in his nightstand after the drive-by shooting ten days before the killing.³ The district court observed that, if Valdez's wife did say that he put the gun in his nightstand several days before the killing, that "in and of itself would be enough for a jury to find [Valdez] guilty of possession of a firearm by a convicted felon," because there would have been no imminent threat to Valdez during those few days prior to Rodriguez's appearance at Valdez's house, such that his possession of the weapon at that time could not be justified. Consequently, in light of his wife's anticipated testimony, Valdez's failure to meet the "imminent and impending threat" element would bar him from presenting the defense of justification. Because of the critical nature of Valdez's wife's statement, the hearing paused for Valdez's counsel to confer with her in person regarding what she had told the police. When he returned, Valdez's counsel confirmed, unfortunately for his client, that Valdez's wife did in fact tell officers that Valdez had put the gun in the nightstand well before the killing. Counsel, apparently acknowledging the damning nature of this evidence in the eyes of a jury, informed the court that he was now considering a late plea because the evidence, once revealed, "would change everything."

After the wife's statement had come to light and after conferring with his counsel, Valdez then, before the district court officially ruled on any pretrial motions, sought to change his plea to guilty. The court specifically noted that only his sentence and any § 2255 issues would be appealable, and his counsel confirmed that was correct. During the Rule 11 colloquy, the district court told Valdez, appropriately, correctly, and expressly, that

right now you don't know what sentence I would give you, I don't know what sentence I would give you and I don't know that because a Probation officer has to meet with you, your lawyer gets to be present and they have to give me a report about your criminal history and then they've got to give me a report about this case and where you score.

Valdez initially said that his attorney had not reviewed the Guidelines with him, but after being shown a copy of the manual, he said that he was familiar with them. The court thoroughly explained how the Guidelines arrive at a recommended sentence, noted clearly that the court had the power to sentence above or below that range, and stated the factors that the court must consider when choosing a sentence. The court asked, "Are you aware of the penalties?" to which Valdez replied, "Yes, ma'am." The court then explained that the statutory maximum penalty was ten years in prison. Valdez again said that he understood and that he had no questions about the penalty. The court explicitly addressed the issue of an estimated sentence, including one from Valdez's counsel:

And this is important because I will tell you that [your attorney] may have given you a good faith estimate where he thinks you may fall in that chart and -- and he may tell you, "You know, I've been in front of this Judge a lot of times, I think she may or may not do this," but at the end of the day he really has no idea and you really have no idea and I have no idea because I don't know where you're going to score and I don't know everything about your life history, and so whatever your lawyer may have said to you is not a promise, it's not a guarantee and it's not binding on this Court. Do you understand that? (emphasis added)

Valdez said, "Yes, ma'am," and confirmed that he wanted to proceed with pleading guilty.

The hearing continued to the next day, October 20, 2015, when the district court again confirmed that Valdez understood that he could not withdraw his guilty plea if he was unhappy with the sentence he received. The court then gave Valdez a chance to withdraw his plea. He declined, and the court accepted Valdez's plea of guilty.

The district court determined that the Guidelines recommended a range of imprisonment of 324 to 405 months. Valdez had a criminal history category of II, which the district court found significantly underrepresented Valdez's criminal activity. The district court determined that Valdez's base offense level was forty-three because he committed first degree murder when he waited almost forty seconds after Rodriguez fell to the ground and then walked out of his house and shot Rodriguez three more times. The court then applied a three-level reduction for acceptance of responsibility.

Under the Guidelines, when a firearm is possessed or used in connection with another offense that results in death, the base offense level for illegal possession of that firearm is taken from the homicide subpart of the Guidelines that is most analogous to the conduct, if the resulting offense level is greater than it would be otherwise. U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(c)(1) (U.S. SENTENCING COMM'N 2015). First degree murder results in an offense level of forty-three, second degree murder an offense level of thirtyeight, voluntary manslaughter an offense level of twenty-nine, and involuntary manslaughter an offense level of twelve to eighteen. Id. §§ 2A1.1, 2A1.2, 2A1.3, 2A1.4.

Despite the video evidence and undisputed facts, Valdez urged the district court not to apply the homicide cross-reference because he had not been convicted of homicide in state court, making the base offense level twenty. That would have resulted in a Guidelines...