United States v. Funez

          ORDER DENYING § 2255 MOTION

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         Movant, Santos Adolfo Funez, has filed a pro se Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 [Docket No. 1021] and a Motion f or Permission to File Oversized Brief (Supporting Memorandum) [Docket No. 1025]. The United States filed a response, Docket No. 1029, to which Mr. Funez replied. Docket No. 1030.

         The Court construes Mr. Funez’s filings liberally because he is not represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court will not act as a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons discussed below, the § 2255 motion will be denied.

         I. PROCEDURAL HISTORY

         On April 23, 2013, Mr. Funez was charged with one count of conspiracy to distribute and possess 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, one count of possession with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a substance containing a detectable amount of methamphetamine, and one count of using a telephone as a communication facility to commit or facilitate the offense of conspiracy to distribute and possess with the intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. Docket No. 1 at 2, 11-12. After a four-day bench trial, see Docket Nos. 753, 754, 759, 761, the Court found Mr. Funez guilty on all three counts. Docket No. 841 at 31.

         Prior to sentencing, Mr. Funez filed a Motion for Non Guideline Offense, Docket No. 937, and an Objection to Guideline Computation. Docket No. 945. He argued that the Court should sentence him to a non-guideline sentence due to his “role . . . in the offense and familial hardship pursuant to 5H 1.6.” Docket No. 937 at 1. He also stated that his actions were a deviation from his productive and law-abiding history, id., and argued that he was entitled to an adjustment under 2B.1.2(a) as a minimal participant. Docket No. 945 at 1.

         Mr. Funez was sentenced to 188 months’ imprisonment for each of the conspiracy and possession convictions and to 48 months’ imprisonment for the use of a communication facility conviction, all to be served concurrently. Docket No. 965 at 3. Mr. Funez appealed his convictions and sentences to the Tenth Circuit, arguing that the Court erred in denying his request for a reduced total offense level. United States v. Funez, 615 Fed.Appx. 492 (10th Cir. 2015) (unpublished). The Tenth Circuit affirmed the Court’s denial of a downward adjustment. Id. at 496. Specifically, the Tenth Circuit determined that Mr. Funez was not a minimal or minor participant in the underlying offense, and thus, any downward adjustment was not warranted. Id. at 494-95.

         Mr. Funez filed a Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255, Docket No. 1021, and a Motion for Permission to File Oversized Brief (Supporting Memorandum). Docket No. 1025. The government responded, Docket No. 1029, and plaintiff filed a “traverse.” Docket No. 1030. The Court construes plaintiff’s filings as a pro se litigant liberally. See Hall, 935 F.2d at 1110. The Court will grant plaintiff’s motion to file an oversized brief.

         II. ANALYSIS

         Mr. Funez raises four arguments in his § 2255 motion. First, he argues that he received ineffective assistance of counsel because his attorney failed to object to the presentence report and failed to “advise Mr. Funez and explain in terms he could understand as to the specific requirements to obtain” a reduced sentence for acceptance of responsibility. Docket No. 1021 at 5; Docket No. 1022 at 37, ¶ 22.

         To establish ineffective assistance of counsel, Mr. Funez must demonstrate both that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance resulted in prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. There is “a strong presumption” that counsel’s performance falls within the range of “reasonable professional assistance.” Id. Mr. Funez bears the burden of overcoming this presumption by showing that the alleged errors were not sound strategy under the circumstances. See Id. “For counsel’s performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).

         Under the prejudice prong, Mr. Funez also must demonstrate that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.; see also Harrington v. Richter, 562 U.S. 86, 112 (2011) (stating that “[t]he likelihood of a different result must be substantial, not just conceivable.”). In order for a defendant to make an ineffective assistance claim, he must identify the specific “acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690.

         Mr. Funez argues that the probation officer conflated the requirements for a reduction under U.S.S.G. § 3E1.1 with those of U.S.S.G. § 5C1.2 and that his counsel was constitutionally ineffective in failing to object to the presentence report. Docket No. 1022 at 38. Section 3E1.1 provides that the defendant is entitled to a two-level decrease in offense level if he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1. Further, § 5C1.2 states that a court shall impose a sentence in accordance with the applicable guidelines, without regard to any statutory minimum sentence, if a number of criteria are met, one of which is that the defendant “truthfully provided to the Government all information and evidence the defendant has concerning the offense.” U.S.S.G. § 5C1.2(a)(5). Mr. Funez argues that the probation officer “conflated” these two guidelines in the presentence report because the probation officer, in his discussion for acceptance of responsibility, mentioned that Mr. Funez failed to provide all information regarding his participation in the underlying crime. Docket No. 1022 at 38-39; Docket No. 956 at 7. According to Mr. Funez, had counsel properly advised him of the requirements for a reduction in sentence, or had counsel objected to the presentence report, “there is a reasonable probability that the District Court would have granted a reduction in Mr. Funez’[s] sentence for acceptance of responsibility under U.S.S.G. § 3E1.1.” Docket No. 1022 at 39.

         “When, as here, the basis for the ineffective assistance claim is the failure to raise an issue, we must look to the merits of the omitted issue.” United States v. Orange, 447 F.3d 792, 797 (10th Cir. 2006). “If the omitted issue is without merit, then counsel’s failure to ...