Perez-Lopez v. United States ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jose de Jesus Perez-Lopez, No. CV-20-00126-TUC-JGZ No. CR-19-00563-TUC-JGZ 10 Petitioner, ORDER 11 v. 12 United States of America, 13 Respondent. 14 15 16 Pending before the Court is Movant Jose de Jesus Perez-Lopez’s Amended Motion 17 Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal 18 Custody. (CV Doc. 4.)1 Perez-Lopez argues that his sentence was imposed in violation of 19 the Constitution because his counsel was ineffective by failing to object to an eight-level 20 enhancement at sentencing and by failing to file a notice of appeal. The Government filed 21 a response to the Motion, and Perez-Lopez filed a Reply. (CV Docs. 6, 7.) The Reply 22 asserts arguments under Rehaif v. United States, 139 S. Ct. 2191 (2019), which were not 23 included in Petitioner’s original filing. (CV Doc. 7.) Thus, the Court ordered the 24 Government to file a sur-reply addressing the new arguments. (CV Docs. 8, 9.) Perez- 25 Lopez subsequently filed a Motion for Appointment of Counsel. (Doc. 10.) 26 27 1 Citations to “CV Doc.” refer to the docket entries in the civil case, CV 20-00126- TUC-JGZ. Citations to “CR Doc.” refer to the underlying illegal reentry case, CR 19- 28 00563-TUC-JGZ. 1 Upon consideration of the record and the parties’ briefing, the Court will deny 2 Perez-Lopez’s motion to appoint counsel and his § 2255 Motion. 3 I. Motion for Appointment of Counsel 4 Prisoners do not have a constitutional right to counsel on a collateral post-conviction 5 § 2255 petition. United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990). However, 6 “counsel must be appointed to represent indigent defendants in 2255 proceedings when the 7 complexities of the case are such that denial of counsel would amount to denial of due 8 process.” Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980) (citing Dillon v. United 9 States, 307 F.2d 445, 446-67 (9th Cir. 1962)). “In the absence of such circumstances, a 10 request for counsel in proceedings under section 2255 is addressed to the sound discretion 11 of the trial court.” Dillon, 307 F.2d at 447. The Court has discretion to appoint counsel 12 when it “determines that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). 13 Upon review of Perez-Lopez’s § 2255 motion, the Court will deny the motion to appoint 14 counsel, as this case does not present complex issues that would amount to a denial of due 15 process and the interests of justice do not so require. 16 II. Background 17 On September 26, 2019, Perez-Lopez pleaded guilty to one count of illegal reentry 18 of a removed alien, in violation of 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. § 1326(b)(2).2 19 (CR Docs. 41, 43.) The applicable advisory sentencing guideline range was 57 to 71 20 months. (CR Doc. 48, p. 15.) The parties’ plea agreement provided a sentencing range of 21 46 to 57 months and included a waiver of Perez-Lopez’s right to appeal or collaterally 22 attack his sentence. (CR Doc. 41, pp. 2, 4.) The waiver provision did not bar a claim of 23 ineffective assistance of counsel. (CR Doc. 41, p. 4.) 24 Prior to sentencing, the U.S. Probation Office prepared a Presentence Investigation 25 Report, which detailed Perez-Lopez’s prior criminal and immigration history. (CR Doc. 26 48.) In 2011, Perez-Lopez pleaded guilty to Conspiracy to Launder Monetary Instruments 27 2 Section 1326(b)(2) increases the statutory maximum sentence for reentry of a 28 removed alien to twenty years if the underlying removal was “subsequent to a conviction for commission of an aggravated felony.” 1 in violation of 18 U.S.C. § 1956(h). (CV Doc. 9-4, p. 1.) Based on this conviction, Perez- 2 Lopez was subsequently removed from the United States as an alien convicted of an 3 aggravated felony. (CV Doc. 9-5, p. 3.) In 2016, Perez-Lopez pleaded guilty to Unlawful 4 Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. § 922(g)(1) and 5 Illegal Re-entry of an Alien Subsequent to Deportation after an Aggravated Felony under 6 8 U.S.C. § 1326(a) and (b)(2). (CV Doc. 9-1, p. 1.) He was sentenced to 24 months for 7 each count, to be served concurrently, followed by 3 years of supervised release. (Id. at 2.) 8 Perez-Lopez was deported for the second time on August 31, 2017. (CR Doc. 48, p. 3.) He 9 returned to the United States without permission, resulting in the illegal reentry charge that 10 is the subject of this pending action. 11 On September 26, 2019, Perez-Lopez pleaded guilty to the reentry charge. On 12 December 13, 2019, the Court accepted the parties’ plea agreement and sentenced Perez- 13 Lopez to 46 months’ incarceration followed by three years of supervised release.3 (CR Doc. 14 50.) On March 19, 2020, Perez-Lopez timely filed a § 2255 motion. 15 III. Section 2255 Standard 16 Under 28 U.S.C. § 2255, a prisoner may move the sentencing court to vacate, set 17 aside, or correct a sentence if the sentence was imposed in violation of the United States 18 Constitution or laws of the United States, was in excess of the maximum authorized by 19 law, is otherwise subject to collateral attack, or if the sentencing court was without 20 21 3 The Court adopted the presentence investigation report. The report included a four- level increase for the Petitioner’s prior conviction for conspiracy to launder monetary 22 instruments pursuant to U.S.S.G. § 2L1.2(b)(2)(D); a four-level increase for the prior 23 illegal reentry conviction pursuant to U.S.S.G. § 2L1.2(b)(1)(A); and an eight-level increase for the prior conviction for unlawful possession of a firearm by a convicted felon 24 pursuant to U.S.S.G. § 2L1.2(b)(3)(B). The presentence report also applied a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a)-(b), and a two- 25 level government-sponsored fast-track departure under U.S.S.G. § 5K3.1. Thus, with a 26 criminal history category IV, based on seven criminal history points, and a total offense level of 19, the applicable sentencing range was 46-57 months. The presentence report 27 recommended a sentence of 46 months followed by a three-year term of supervised release. 28 (CR Doc. 48.) 1 jurisdiction. 28 U.S.C. § 2255(a). A petitioner is entitled to an evidentiary hearing on a 2 § 2255 motion “unless the motion and the files and records of the case conclusively show 3 that the prisoner is entitled to no relief.” Id. § 2255(b); see also United States v. Leonti, 326 4 F.3d 1111, 1116 (9th Cir. 2003) (stating that summary dismissal is warranted if petitioner’s 5 allegations are “palpably incredible or patently frivolous”). Further, Rule 4(b) of the Rules 6 Governing Section 2255 Proceedings provides, in relevant part, that “[i]f it plainly appears 7 from the motion, any attached exhibits, and the record of prior proceedings that the moving 8 party is not entitled to relief, the judge must dismiss the motion and direct the clerk to 9 notify the moving party.” 10 IV. Discussion 11 Perez-Lopez argues that his counsel was ineffective because counsel failed to object 12 to the eight-level enhancement in the sentencing guideline calculation and failed to file a 13 notice of appeal. In his reply, Perez-Lopez also challenges the validity of his 2016 14 conviction for unlawful possession of a firearm, arguing that the government failed to 15 advise him of the required knowledge-of-status element. 16 A. Ineffective Assistance of Counsel 17 Criminal defendants are entitled to effective assistance of counsel under the Sixth 18 Amendment. Strickland v. Washington, 466 U.S. 668, 684-85. To prove ineffective 19 assistance of counsel, a defendant must demonstrate: (1) that counsel’s performance was 20 deficient; and (2) the deficient performance prejudiced the defense. Id. at 687. There is “a 21 strong presumption that counsel’s conduct falls within the wide range of reasonable 22 professional assistance.” Id. at 689. To prove deficient performance, the movant must show 23 that counsel “made errors so serious that performance fell below an objective standard of 24 reasonableness under prevailing professional norms.” Mak v. Blodgett, 970 F.2d 614, 618 25 (9th Cir. 1992) (citing Strickland, 466 U.S. at 688). To prove prejudice, the movant must 26 “show there is a reasonable probability that but for counsel’s unprofessional errors, the 27 result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Because 28 the defendant must prove both deficiency and prejudice, a court “need not determine 1 whether counsel's performance was deficient before examining the prejudice suffered by 2 the defendant as a result of the alleged deficiencies.” Id. at 697. 3 i. Failure to Object to Enhancement 4 Perez-Lopez asserts that his counsel’s performance was deficient because she did 5 not object to an eight-level sentencing enhancement arising from his prior 2016 conviction 6 for Unlawful Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. § 7 922(g)(1). (CV Doc. 4, p. 5.) Perez-Lopez argues that this conviction should not have been 8 considered an aggravated felony because it was punishable by a $500 fine and a 60-day 9 sentence in state custody, and thus should not have enhanced his sentence by eight levels. 10 Plaintiff’s assertions are factually and legally incorrect. The record clearly shows 11 that on September 2, 2016, Perez-Lopez was sentenced to 24 months in federal custody for 12 the prior § 922(g)(1) conviction. (CV Doc. 9-1, p. 1-2.) Thus, Perez-Lopez’s offense level 13 was properly increased by eight levels because he was convicted “for a felony offense 14 (other than an illegal reentry offense) for which the sentence imposed was two years or 15 more.” U.S.S.G. § 2L1.2(b)(2)(B). Counsel was not ineffective in failing to object to this 16 eight-level enhancement. See Martinez v. Ryan, 926 F.3d 1215, 1226 (9th Cir. 2019) 17 (noting that counsel is not ineffective for failure to raise meritless arguments). 18 Further, to the extent Perez-Lopez argues that 8 U.S.C. § 1326(b)(2) should not 19 have enhanced the statutory maximum because his prior conviction was not an aggravated 20 felony, he is incorrect. Section 1101 specifically defines an aggravated felony to include 21 “an offense described in § 922(g)(1).” 8 U.S.C. § 1101(a)(43)(E)(ii). In addition, Perez- 22 Lopez’s 2012 conviction for conspiracy to commit money laundering and his 2016 illegal 23 reentry conviction would also each provide a basis for the § 1326(b)(2) enhancement in 24 this case; both are aggravated felony convictions as defined in 8 U.S.C. § 1101(a)(43)(D) 25 (laundering of monetary instruments), id. § 1101(a)(43)(O) (reentry by an alien who was 26 previously deported on the basis of a conviction for an offense discussed within paragraph 27 43), and id. § 1001(a)(43)(U) (attempt or conspiracy to commit any of the offenses listed 28 in paragraph 43). Thus, defense counsel was not deficient for failing to object to the § 1 1326(b)(2) enhancement of his illegal reentry charge; Petitioner had, in fact, been 2 convicted of an aggravated felony and subsequently removed. Objective standards of 3 reasonableness under professional norms do not require counsel to make frivolous 4 arguments. Martinez, 926 F.3d at 1226. 5 ii. Failure to File Notice of Appeal 6 Perez-Lopez also asserts that his defense counsel was ineffective because she did 7 not file a notice of appeal and did not advise him of his right to appeal. 8 The Strickland test applies to claims that counsel was constitutionally ineffective 9 for failing to file a notice of appeal. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). To 10 demonstrate prejudice, the defendant must show “that there is a reasonable probability that, 11 but for counsel’s deficient failure to consult with him about an appeal, he would have 12 timely appealed.” Id. at 484. 13 Here, there is no reason to think that a rational defendant would want to appeal, as 14 Perez-Lopez only raises frivolous grounds for relief. Moreover, even if Perez-Lopez had 15 timely appealed, he has not carried his burden to prove prejudice under the Strickland 16 standard because, as discussed in this order, his grounds for appeal are frivolous. 17 B. Challenge to Prior Section 922(g) Conviction Under Rehaif v. United States 18 After Petitioner plead guilty to the offense of Unlawful Possession of a Firearm by 19 a Convicted Felon, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191, 20 2194 (2019), holding that the government must show that “the defendant knew he 21 possessed a firearm and also that he knew he had the relevant status when he possessed it” 22 to establish a conviction under § 922(g). Perez-Lopez was not advised of this knowledge- 23 of-status element when he pled guilty in 2016. As a result, Perez-Lopez now asserts that 24 his section 922(g)(1) conviction should be vacated because the court accepted his plea 25 without advising him of the required knowledge-of-status element. 26 Perez-Lopez compares his case to that of the defendant in United States v. Gary, 27 954 F.3d 194 (4th Cir. 2020). Like Perez-Lopez, Gary also pleaded guilty to a § 922(g)(1) 28 offense and was sentenced prior to the Rehaif decision. On direct appeal, Perez-Lopez 1 argued that his conviction should be vacated because the district court failed to inform him 2 of the knowledge-of-status element when it accepted his plea. Id. at 199. The Fourth Circuit 3 vacated the conviction, despite overwhelming evidence in the record that satisfied the 4 Rehaif element, reasoning that the omission was a structural error that affected the 5 defendant’s substantial rights Id. at 202-03. 6 The Supreme Court recently rejected this argument and reversed the Gary decision. 7 In Greer v. United States, --- S. Ct. ----, 2021 WL 2405146, at *4 (June 14, 2021), the 8 Court held that a Rehaif error is not a basis for plain-error relief unless the defendant first 9 makes a sufficient argument or representation on appeal that he would have presented 10 evidence at trial that he did not in fact know he was a felon. In reversing the Fourth 11 Circuit’s decision in Gary, the Court noted that Gary had been convicted of multiple 12 felonies prior to his felon-in-possession offense, the prior convictions constituted 13 substantial evidence that he knew he was a felon, and Gary failed to argue or represent on 14 appeal that he would have presented evidence at trial that he did not in fact know he was a 15 felon when he possessed a firearm. 16 Here the record similarly demonstrates that Perez-Lopez knew his status as a felon 17 before he possessed the firearm which was the basis for his 2016 conviction. Previously, 18 in 2012, Perez-Lopez pleaded guilty to Conspiracy to Launder Monetary Instruments in 19 violation of 18 U.S.C. § 1956(h). His 2012 plea agreement informed him that he was 20 pleading to an offense punishable by a maximum of twenty years’ imprisonment. (CV Doc. 21 9-4, p. 2.) When Perez-Lopez was subsequently removed from the United States after 22 serving the sentence for his money laundering conviction, he was again informed that he 23 had been convicted of a felony. (CV Doc. 9-5, p. 1.) Additionally, in the 2016 plea 24 agreement, the factual basis states: “On the date of his removal [in 2012], Perez-Lopez 25 signed form I-294 (Warning to Alien Ordered Removed or Deported). This form notified 26 Perez-Lopez that he . . . has been convicted of a crime designated as an aggravated felony.” 27 (CV Doc. 9-3, p. 9.) Perez-Lopez stipulated to the factual basis when he pleaded guilty to 28 the unlawful possession charge in 2016. (CV Doc. 9-3, p. 7.) Thus, overwhelming and 1 uncontested evidence demonstrates that Perez-Lopez did have knowledge that he had been 2 convicted of a felony before he possessed the firearm. As a result, Perez-Lopez cannot 3 show that the omission of the Rehaif knowledge element from his 2016 plea colloquy 4 affected his substantial rights, and he cannot demonstrate a reasonable probability that, but 5 for the error, he would not have entered his guilty plea. 6 Further, this Court addressed at sentencing the defendant’s concern that his prior § 7 922(g)(1) conviction should not have been used to enhance his sentence; defense counsel 8 made this argument—specifically citing Rehaif—in her sentencing memorandum. (CR 9 Doc. 47, p. 5:5-13). Counsel argued that Perez-Lopez was “likely not advised that he was 10 a prohibited possessor,” because he was removed from the country after his 2012 money 11 laundering conviction. Id. In rejecting this argument, this Court explained at sentencing: 12 I note with respect to the prior conviction for possession of a firearm by a felon, the law 13 has changed. But what would have had to have been shown for that conviction today would only be that Mr. Perez-Lopez knew he was a felon; not that he knew that he was 14 a prohibited possessor. And I don’t know that there’s a big question about that, so we 15 are where we are today. 16 (CR Doc. 55, p. 4:4-10.) 17 Ninth Circuit law at the time of sentencing was consistent with the Supreme Court’s 18 recent decision in Greer v. United States. The Ninth Circuit had repeatedly held that Rehaif 19 errors do not affect the defendant’s substantial rights when there is no probability that, but 20 for the error, the outcome would have been different. See, e.g., United States v. Benamor, 21 937 F.3d 1182, 1189 (9th Cir. 2019) (defendant's seven prior felony convictions, including 22 a prior conviction for being a felon in possession of a firearm, “proved beyond a reasonable 23 doubt that defendant had the knowledge required by Rehaif”); United States v. Tuan Ngoc 24 Luong, 965 F.3d 973, 989 (9th Cir. 2020) (defendant’s six prior felony convictions 25 resulting in sentences longer than one year demonstrated no reasonable probability that the 26 outcome would have been different); United States v. Singh, 979 F.3d 697, 728 (9th Cir. 27 2020) (evidence on the omitted element was “overwhelming and uncontested”); United 28 States v. Johnson, 833 Fed. App’x 665, 667 (9th Cir. 2020) (omission of Rehaif element 1 from plea did not seriously affect the fairness, integrity, or public reputation of the 2 proceeding because evidence that defendant knew his status was overwhelming (citing 3 United States v. Cotton, 535 U.S. 625, 632-33 (2002))). Finally, as discussed above, a 4 challenge to his prior conviction under Rehaif would also fail on the merits because Perez- 5 Lopez was aware he was a felon at the time he possessed the firearm. 6 C. Certificate of Appealability 7 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 8 (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the 9 Rules Governing Section 2255 Cases. “The district court must issue or deny a certification 10 of appealability when it enters a final order adverse to the applicant.” Rule 11(a) of the 11 Rules Governing Section 2255 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may 12 issue only when the petitioner “has made a substantial showing of the denial of a 13 constitutional right.” The court must indicate which specific issues satisfy this showing. 14 See 28 U.S.C. § 2253(c)(3). With respect to claims rejected on the merits, a petitioner “must 15 demonstrate that reasonable jurists would find the district court’s assessment of the 16 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 17 For procedural rulings, a COA will issue only if reasonable jurists could debate whether 18 the petition states a valid claim of the denial of a constitutional right and whether the court’s 19 procedural ruling was correct. Id. Applying these standards, the Court concludes that a 20 certificate should not issue, as the resolution of the petition is not debatable among 21 reasonable jurists. 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 V. Conclusion 2 For the foregoing reasons, 3 IT IS ORDERED Petitioner’s Motion for Appointment of Counsel (Doc. 10) is DENIED. 5 IT IS FURTHER ORDERED that Perez-Lopez's Amended Motion to Vacate, Set || Aside, or Correct Sentence by a Person in Federal Custody (Doc. 4) is DENIED, and the civil action opened in connection with this Motion (CV-20-00126-TUC-JGZ) is 8 || DISMISSED with prejudice. The Clerk of Court must enter judgment accordingly. 9 IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. 10 The Clerk of Court is directed to close its file in this action. 11 Dated this 15th day of June, 2021. 12 13 □ 14 pod Soya 15 ; Honorable Jennify Me Zfpps United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -10-