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United States v. Rengifo

United States District Court, M.D. Pennsylvania

October 18, 2017

UNITED STATES OF AMERICA
v.
HECTOR RENGIFO

          MEMORANDUM

          SYLVIA H. RAMBO UNITED STATES DISTRICT JUDGE.

         Before the court is Petitioner Hector Rengifo's pro se motion filed pursuant to 28 U.S.C. § 2255 in which he seeks to have his sentence vacated, set aside, or corrected. The petition raises allegations of incompetency of counsel. For the reasons set forth herein, the motion will be denied.

         I. Background

         At sentencing, the court found that Rengifo was a career offender under USSG § 4B1.1 because he had two prior drug trafficking convictions. The first was a 1999 conviction for Possession with Intent to Deliver a Controlled Substance in the York County Court of Common Pleas, Docket No. CP-67-CR-3609-1998, which arose from a May 20, 1998 traffic stop in which Rengifo was arrested with seven individually packaged bags of marijuana (“the 1999 conviction”). (PSR ¶ 31.) The second was a 2007 conviction for Criminal Conspiracy to Possession with Intent to Deliver a Controlled Substance, York County Court of Common Pleas, Docket No. CP 67-CR-1107-2007, which arose from a January 13, 2005 search of Rengifo's residence where fifteen individually packaged bags of cocaine, a larger bag of cocaine, packaging material, and loaded 12 gauge shotgun were recovered (“the cocaine trafficking conviction”). (PSR ¶ 33.)

         In his § 2255 motion, Rengifo argues that trial and appellate counsel were incompetent for failing to argue that the 1999 conviction does not qualify as a predicate offense under USSG § 4A1.2(e). He sets forth two reasons for this argument: (1) the conviction does not qualify as a prior conviction under the time period rules of USSG § 4A1.2(e), i.e., the “lookback period, ” and (2) the conviction does not qualify as a “serious drug offense, ” and was instead a conviction for possession of a small amount of marijuana for distribution and not for sale, under 35 Pa. C.S. §780-113(a)(31).

         Rengifo further argues that both counsel were incompetent for failing to raise the issue that his 1999 conviction should not qualify because he entered the plea in the absence of his counsel.

         II. Standard for Incompetency of Counsel

         To prevail on a claim of ineffective assistance of counsel, a petitioner must establish that (1) the performance of trial counsel fell below an objective standard of reasonableness, and (2) the performance of counsel unfairly prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 691 (1984). Both prongs must be established. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001) (citing United States v. Nino, 878 F.2d 101, 104 (3d Cir. 1989)).

         The first Strickland prong requires the defendant to “establish . . . that counsel's performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). Proving a deficiency in conduct “requires showing that counsel was not functioning as ‘counsel' guaranteed by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687) (internal quotations omitted). “In assessing counsel's performance, ‘every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'” Id. “That is to say, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Strickland, 466 U.S. at 689)). It is well settled that the benchmark for judging any claim of ineffectiveness of counsel is “whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

         The second prong of Strickland requires a defendant to show that counsel's performance unfairly prejudiced the defendant, meaning that counsel's errors were so serious as to deprive the defendant of a trial whose result is reliable. Id. It is not enough to show that the error had some conceivable effect on the outcome of the proceeding, for virtually every act or omission would meet such a test. Id. Rather, the defendant must show there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Id. at 694. A reasonable probability is sufficient to undermine confidence in the outcome of the trial. Id. Effectiveness of counsel applies to advise given by counsel during guilty plea discussions. Hill v. Lockhart, 474 U.S. 52, 58 (1985); United States v. Booth, 432 F.3d 542, 547 (3d Cir. 2005).

         III. Discussion

         a. The Lookback Period

         After sentencing, Rengifo filed a direct appeal raising the issue that his 1999 conviction exceeded the lookback time period. The Third Circuit found that the conviction was appropriately counted as a prior offense and affirmed the judgment of sentence. United States v. Rengifo, 832 F.3d 220 (3d Cir. 2016). Because §2255 “may not be employed to litigate issues that were raised and considered on direct appeal, ” this issue is without merit. United States v. De Rewal, 10 F.3d 100, n.5 (3d Cir. 1993) (quoting Barton v. United States, 741 F.3d 265, 267 (2d Cir. 1986)).

         b. ...


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