United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is Petitioner's Motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. [Doc. 983].
The Government has responded. [Doc. 1000]. For the reasons
that follow, Petitioner's Motion is DENIED.
March of 2013, a grand jury sitting in the Western District
of Oklahoma charged Petitioner Edgardo Aguilar in a
superseding indictment with (1) conspiracy to possess with
intent to distribute and to distribute methamphetamine under
21 U.S.C. § 846; (2) possession with intent to
distribute methamphetamine under 21 U.S.C. § 841(a)(1);
and (3) the use of a communication facility to facilitate the
acquisition and distribution of methamphetamine under 21
U.S.C. § 843(b). After standing trial alongside three
other co-defendants from the Zamarripa drug-trafficking
organization, Petitioner was convicted on all counts and
sentenced to 188 months' imprisonment. [Docs. 532, 723].
Aguilar raised three issues on appeal: (1) the jury had
convicted him with insufficient evidence; (2) the
Government's questions about a co-defendant's silence
violated his due process rights; and (3) the cumulative
effect of these errors at his trial warranted reversal.
Rejecting his arguments, the Tenth Circuit affirmed.
United States v. Aguilar, 609 Fed.Appx. 960 (10th
Cir. 2015). [Docs. 865, 871]. This Court later reduced
Petitioner's sentence to 151 months upon his motion under
18 U.S.C. § 3582. Petitioner now seeks relief under 28
U.S.C. § 2255, asking this Court to set an evidentiary
hearing so that Petitioner can establish his counsel's
ineffective assistance during plea negotiations and at
Ineffective Assistance of Counsel During Plea
Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” Any
successful claim of ineffective assistance of counsel must
satisfy the two-pronged test laid out in Strickland v.
Washington, 466 U.S. 668, 697 (1984). First, a defendant
must show that his counsel's performance was deficient in
that it “fell below an objective standard of
reasonableness.” Id. at 688. This requires
overcoming the strong presumption that counsel's
performance fell within the broad range of reasonable
professional conduct. Trice v. Ward, 196 F.3d 1151,
1159 (10th Cir. 1999). Second, the defendant must show that
his counsel's deficient performance actually prejudiced
his defense. In other words, a defendant “must show
there is a reasonable probability that, but for his
counsel's unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694. Conclusory allegations
or vague descriptions of the alleged deficient performance
will not suffice. United States v. Fisher, 38 F.3d
1144, 1146-1147 (10th Cir. 1994). And failure to demonstrate
either prong is fatal to a petitioner's claim for
ineffective assistance of counsel. Smith v. Robbins,
528 U.S. 259, 286 n. 14 (2000).
first argument for habeas relief, Mr. Aguilar argues that
Counsel failed to inform him of the advantages and
disadvantage of the Government's plea deal on the eve of
trial, resulting in Mr. Aguilar rejecting the deal and
receiving a heightened sentence. “As a general rule,
defense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions
that may be favorable to the accused.” Missouri v.
Frye, 566 U.S. 133, 145, 132 S.Ct. 1399 (2012). Further,
counsel has a “critical obligation . . . to advise the
client of ‘the advantages and disadvantages of a plea
agreement.' ” Padilla v. Kentucky, 559
U.S. 356, 370, 130 S.Ct. 1473, 1484 (2010). Petitioner claims
that counsel never provided him with details of the
government's last minute offer, never explained how
evidence at trial could affect his sentencing under the
United States Sentencing Guidelines, and never informed him
of the advantages of a plea bargain. As proof, Mr. Aguilar
attaches a letter from his counsel sent to him in prison in
May 2016-nearly three years after his jury trial-explaining
that, to the best he could recall, the Government's final
proposed plea deal offered what would have likely amounted to
a five-year prison term; that the offer was never reduced to
writing; that Counsel informed the Court before trial that
Mr. Aguilar had rejected the deal; and that Counsel could not
recall if he gave Mr. Aguilar any details about the last plea
deal. [Doc. 987, at 17].
record and evidence largely bear this out. For one, the Court
asked each defendant before trial whether the Government had
offered a plea deal to each defendant. Mr. Aguilar made no
objection when Counsel explained to the Court that Mr.
Aguilar had been offered a plea deal, which he refused
despite counsel having explained the advantages of it.
[Trans. Of Voir Dire, at 3-4]. The Government also provides
an affidavit from Mr. Aguilar's trial counsel explaining
that he met with Mr. Aguilar several times before trial to
discuss the advantages and disadvantages of the plea deal and
that he, along with Mr. Aguilar's wife, wanted Mr.
Aguilar to accept the plea deal in which he would receive an
approximately seven-year sentence with the potential for
release after five years. [Doc. 1000, Ex. 1, at 1-2]. Mr.
Aguilar refused the deal, asserted his innocence, and asked
counsel why he should plead guilty when he did nothing wrong.
a defendant's claim is that counsel's deficient
performance caused him to reject a plea offer and proceed to
trial, he must show that ‘there is a reasonable
probability that . . . defendant would have accepted the plea
deal.'” United States v. Watson, 766 F.3d
1219, 1226 (10th Cir. 2014) (citing Lafler v.
Cooper, 132 S.Ct. 1376, 1385 (2012)). This Mr. Aguilar
cannot do. “A defendant who maintains his innocence at
all the stages of his criminal prosecution and shows no
indication that he would be willing to admit his guilt
undermines his later § 2255 claim that he would have
pleaded guilty if only he had received better advice from his
lawyer.” Sparks v. United States, 2016 WL
4273192, at *4 (D. Kan. Aug. 15, 2016) (citing Sanders v.
United States, 341 F.3d 720, 723 (8th Cir. 2003)). Even
if there was a last-second informal plea deal that counsel
failed to convey, the evidence shows that Mr. Aguilar had
already rejected a similar plea deal and was intent on
proceeding to trial. Mr. Aguilar thus “cannot
demonstrate prejudice because he does not point to any
evidence that he would have accepted a plea offer had Mr.
Wallace discussed it with him.” Watson, 766
F.3d at 1226. In fact, “the most that can be said with
respect to prejudice is that Mr. [Aguilar] asserts he was
prejudiced; his mere self-serving statement, which does no
more than open the door to conjecture, is not enough.”
Ineffective Assistance of Counsel at Sentencing
Aguilar's second argued ground for relief fares no better
than his first. Mr. Aguilar believes he is entitled to a
reduction in his sentence under Amendment 794 to the United
States Sentencing Guidelines, which lists factors a
sentencing court should consider in deciding to reduce a
sentence for a defendant's minor role in the offense. Mr.
Aguilar contends that his counsel's failure to move the
Court for a downward departure based on Amendment 794
constituted ineffective assistance of counsel.
794 took effect on November 1, 2015-nearly two years after
Defendant received his sentence on November 5, 2013. Even if
it were retroactively applicable,  however, relief on this
ground would still be inappropriate because Mr. Aguilar did
not raise the issue of a mitigating-role on direct appeal.
Granted, Amendment 794 was not in effect yet. Yet Mr. Aguilar
could have still argued at sentencing that he was entitled to
a decrease in his offense level under U.S.S.G. § 3B1.2.
Amendment 794 simply revised the commentary to § 3B1.2
by “introduc[ing] a list of non-exhaustive factors that
a sentencing court should consider in determining”
whether defendant should receive this mitigating-role
adjustment. United States v. Gomez-Valle, 828 F.3d
324, 329 n. 23 (5th Cir. 2016). Mr. Aguilar, though, never
argued on appeal that he was entitled to any offense-level
decrease. “Failure to present an issue on direct appeal
bars a defendant from raising it in a § 2255 motion
‘unless he can show cause excusing his procedural
default and actual prejudice resulting ...