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U.S. v. LOPEZ-CHAPA

June 4, 2004.

U.S.
v.
BENITO MARTIN LOPEZ-CHAPA.



The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

Before the Court is Defendant Benito Martin Lopez-Chapa's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons which follow, the Court denies the Motion in all respects.

I. BACKGROUND

  On January 29, 2002, pursuant to a written Guilty Plea Agreement, Lopez-Chapa pled guilty to Information No. 02-03 which charged him with conspiracy to possess and distribute more than 1000 kilograms of marijuana in violation of 18 U.S.C. § 846 (Count I). This charge arose out of a conspiracy between Jesse C. Harriott, Jermaine E. Heyliger, Rellen A. Thomas and Benito Martin Lopez-Chapa to ship loads of at least 500 kilograms of marijuana each by tractor trailer from McAllen, Texas to Philadelphia for distribution. On November 26, 2002, the Court sentenced Petitioner to 262 months incarceration, a $1,000 fine, five years supervised release, and a $100 special assessment. Petitioner filed a timely notice of appeal. On June 2, 2003, his appeal was dismissed pursuant to Federal Rule of Appellate Procedure 42(b). (Docket No. 125.) The instant Motion was filed on January 14, 2003. II. LEGAL STANDARD

  Defendant Lopez-Chapa has moved for relief pursuant to 18 U.S.C. § 2255, which statute provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C.A. § 2255 (West Supp. 2001).

  "Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors." United States v. Rishell, Civ.A. Nos. Nos. 97-294-1 and 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001) (citation omitted). In order to prevail on Section 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). Even an error that may justify a reversal on direct appeal will not necessarily sustain a collateral attack. See United States v. Addonizio, 442 U.S. 178, 184-85 (1979). A Section 2255 motion simply is not a substitute for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982). A district court has the discretion to summarily dismiss a motion brought under Section 2255 in cases where the motion, files, and records "show conclusively that the movant is not entitled to relief." United States v. Nahodil, 36 F.3d 323, 325 (3d Cir. 1994) (citing United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)).

  III. DISCUSSION

  Lopez-Chapa has asserted four grounds for relief pursuant to 28 U.S.C. § 2255:
1. He was provided ineffective assistance of counsel in that he was induced to plead guilty based on the belief that the Government would file a Motion to allow the Court to depart from the sentencing guidelines pursuant to U.S.S.G. § 5K1.1.
2. He was provided ineffective assistance of counsel in that his attorney did not object to an aggravating role enhancement to his base offense level pursuant to U.S.S.G. § 3B1.1(a) for being a leader or organizer of the conspiracy.
3. He was provided ineffective assistance of counsel in that his attorney did not object to an enhancement to his base offense level pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon in connection with a drug offense.*fn1 4. The Government breached the Guilty Plea Agreement and violated his Fifth Amendment right to due process by failing to file a Motion pursuant to U.S.S.G. § 5K1.1.
A. Ineffective Assistance of Counsel
  Claims of ineffective assistance of counsel are governed by the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). In order to obtain a reversal of a conviction on the ground that counsel was ineffective, the movant must establish: (1) that counsel's performance fell well below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair outcome of the proceeding. Id. at 687. Counsel is presumed effective, and the movant must "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 686-89. Strickland imposes a "highly demanding" standard upon a movant to prove the "gross incompetence" of his counsel. Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) ("Because counsel is afforded a wide range within which to make decisions without fear of judicial secondguessing, we have cautioned that it is `only the rare claim of ineffectiveness that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance.'"). Prejudice requires proof "that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

  1. Inducement to plead guilty

  Lopez-Chapa contends that his counsel provided ineffective assistance to him by inducing him to enter into a plea of guilty based upon the belief that the Government would file a motion to allow the Court to depart from the Sentencing Guidelines pursuant to Section 5K1.1. He pled guilty pursuant to a Guilty Plea Agreement with the Government. (Docket No. 66.) As part of the Guilty Plea Agreement, he agreed to cooperate fully and truthfully with the Government and agreed that the Government, if it determined, in its sole discretion, that he had fulfilled all of his obligations of cooperation, would move to allow the Court to depart from the Sentencing Guidelines pursuant to U.S.S.G. § 5K1.1. (Guilty Plea Agreement at 5-9.)

  During the January 29, 2002 plea hearing, prior to entering his plea of guilty to Count I of Information No. 02-03, Lopez-Chapa swore an oath to tell the truth in response to questions from the Court. (1/29/02 N.T. at 2.) He also told the Court that he understood that his answers to the Court's questions would be subject to the penalties of perjury. (Id. at 2-3.) The Court then conducted a plea colloquy pursuant to Federal Rule of Criminal Procedure 11. In response to the Court's questioning, Defendant swore under oath that he was satisfied with the representation of his attorney, David Kozlow. (Id. at 7.)

  During the plea colloquy, the Assistant United States Attorney summarized the terms of the Guilty Plea Agreement between Lopez-Chapa and the Government, including the following:
The plea agreement between the parties also includes language outlining the defendant's agreement to cooperate with the Government and the potential for the Government to file a — a motion for a sentencing reduction on the defendant's behalf prior to sentencing. At that point, no decision has been made as to whether the Government will file that motion.
(Id. at 11.) In response to questioning by the Court, Lopez-Chapa agreed, under oath, that this provision (as summarized by the Assistant United States Attorney) was part of his plea agreement with the Government, that he had signed the written Guilty Plea Agreement, and that he had discussed the Guilty Plea Agreement with his counsel prior to signing it. (Id. at 12.) The Court also asked Lopez-Chapa whether anyone had "made any threat or any promise or any assurance to you of any kind, other than what's been set forth in the plea agreement to convince or persuade or induce you to plead guilty in this case? (Id.) He responded, under oath, "No, your Honor." (Id.)

  The Court finds that Lopez-Chapa understood, prior to pleading guilty to Count I of Information No. 02-03, that it was up to the Government, in its sole discretion, whether to file a Section 5K1.1 Motion, and that the Government had not decided whether it would file such a Motion at the time of his guilty plea. The Court also finds that he was not induced to enter a guilty plea based upon a belief that the Government would file such a Motion. Accordingly, Lopez-Chapa's claim ...


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