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United States v. Cisneros

United States District Court, W.D. Michigan, Southern Division

October 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANK CISNEROS, Defendant.

          AMENDED OPINION

          JANET T. NEFF UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Frank Cisneros' amended motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (ECF No. 1745), and supplements thereto (ECF Nos. 1779, 1781). The Government filed responses to the amended motion and its supplements (ECF Nos. 1765, 1785), and Defendant filed a reply (ECF No. 1808).

         In January and February 2019, the Court entered an opinion and judgment denying the motion under § 2255. Thereafter, Defendant filed a motion to alter or amend judgment under Rule 59(e). On August 12, 2019, the Court vacated the judgment and granted Defendant's Rule 59 motion with respect to one claim: Defendant's claim that his attorney provided ineffective assistance by telling Defendant that he faced a life sentence if he proceeded to trial, without discussing the Sentencing Guidelines. On September 23, 2019, the Court held an evidentiary hearing on this claim, and the parties subsequently filed briefs arguing their respective positions. (ECF Nos. 1930, 1931.) The Court hereby enters an amended opinion denying the motion under § 2255.

         I. Background

         A. Indictment

         In February 2013, Defendant and 30 other members of a gang called the Holland Latin Kings were charged with multiple crimes. Defendant was named in Count One, participation in a racketeering conspiracy, 18 U.S.C. § 1962(d), and Count Twelve, conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 18 U.S.C. §§ 846 and 841(a). (Third Superseding Indictment, ECF No. 68, PageID.266, 313.) Count One alleged a conspiracy beginning in 1993 and continuing to 2013 that involved murder, assault, arson, and the distribution of cocaine and marijuana.

         B. First Proffer

         Defendant participated in a proffer with the Government within a few weeks after the indictment. His attorney, Raymond Buffmyer, was also present. (See Report of Investigation, ECF No. 1755.) At the proffer, Defendant acknowledged that he held leadership positions in the HLK in 1994 and 1998. (Id.) He also stated that he distributed 2 kilograms of cocaine with members of the HLK in 1998, and “a lot” of cocaine in 2011. (Id., PageID.22291.) In addition, he received small quantities of cocaine on a number of occasions from other members of the HLK in 2012. The Government ended the proffer interview when it became clear that Defendant was not being completely truthful about his participation; he told the interviewing agents that he would not be completely honest unless he was guaranteed that he would not have to testify against the HLK. (Id., PageID.22292.)

         C. Superseding Indictment

         In July 2013, the grand jury returned a Fourth Superseding Indictment charging Defendant with the same offenses: participation in a racketeering conspiracy (Count One) and conspiracy to distribute five kilograms or more of cocaine (Count Fourteen). (ECF No. 480, PageID.2150, 2191.) The latter indictment also contained a “Special Sentencing Allegation” regarding Defendant as to Count One, alleging that the racketeering conspiracy involved the distribution of 5 kilograms or more of cocaine. (Id., PageID.2170-2171.) The indictment alleged that Defendant possessed 543 grams of cocaine and tools for distribution in 1998, possessed and/or sold cocaine in 2008 and 2012, possessed a firearm in 2008, and attended leadership meetings with other HLK members in 2011.

         D. Unsuccessful Attempt to Dismiss Charges or Suppress Evidence

         In August 2013, Defendant's attorney filed a motion to dismiss Count One of the indictment or to suppress evidence related to it because the prosecutor had given Defendant immunity many years earlier. (Corrected Mot. to Dismiss, ECF No. 478.) In August 2000, Defendant had testified before a federal grand jury about selling drugs to members of the HLK. In connection with that testimony, the prosecutor promised Defendant that any statements he made to the grand jury with respect to his “involvement in buying or selling illegal drugs with the Latin Kings” or with respect to his “knowledge of individuals in the Latin Kings possessing illegal firearms” would not be used against Defendant in a criminal prosecution. (Grand Jury Tr. 5-6, ECF No. 565-6.) Accordingly, Defendant's attorney argued that the conspiracy charges should be dismissed to the extent that they relied upon evidence derived from Defendant's immunized statements. Counsel asked for a hearing in accordance with Kastigar v. United States, 406 U.S. 441 (1972), to determine the extent to which the pending charges relied upon evidence derived from Defendant's immunized statements.

         The Court denied Defendant's motion, holding that Kastigar only applied to defendants who have been granted statutory immunity; it did not apply to Defendant, who had been given an informal grant of immunity. (9/5/2013 Op., ECF No. 604.) An informal grant of immunity can be enforced like a contract, but there was no indication that the Government had breached its promise to Defendant. The Government asserted that it was aware of Defendant's pre-August 2000 drug-trafficking activity before his grand jury appearance, and that it did not intend to use his grand-jury testimony against him at trial. (Id.)

         E. Second Proffer and Plea Agreement

         In early October 2013, the Government offered to meet with Defendant again. (10/2/2013 Letter to Def., ECF No. 1755, PageID.22297.) He apparently accepted the offer, and then a few days later, he signed a plea agreement acknowledging guilt for the racketeering charge in Count One of the Fourth Superseding Indictment, in exchange for the dismissal of Count Fourteen and the “special sentencing allegation” in Count One. (Plea Agreement, ECF No. 680.) The Government also agreed not to bring additional charges against Defendant arising out of his involvement with the HLK, provided that such conduct was disclosed prior to the date of the plea agreement. Defendant agreed to cooperate with the Government in its investigation of other charges in the indictment, and the Government agreed to evaluate Defendant's cooperation to determine whether to file a motion for sentence reduction.

         The plea agreement provided a significant benefit for Defendant. By dismissing Count Fourteen and the special sentencing allegation in Count One, it reduced his maximum possible sentence from a term of life in prison to 20 years. See 21 U.S.C. § 841(b)(1)(A) (setting forth the punishment for conspiracy to distribute 5 kilograms or more of cocaine). In addition, he stood to gain by receiving credit for acceptance of responsibility under the Sentencing Guidelines.

         F. Plea Hearing

         Defendant entered his plea on October 11, 2013, at a hearing before United States District Judge Robert Holmes Bell. At the plea hearing, Defendant affirmed that he had received an “adequate and ample” opportunity to discuss his case with his lawyer and that he was satisfied with his attorney's representation of him. (See Plea Hr'g Tr. 5, ECF No. 811.) Defendant also accepted the description of his involvement with the HLK as indicated in the indictment and as summarized by the prosecutor at the hearing, which included the fact that Defendant possessed 543 grams of cocaine in 1998, along with implements commonly used for distribution, and that he sold cocaine to various individuals on four separate occasions in April and June 2012. (Id. at 7.) Defendant told the Court that he became a member of the HLK in 1993, at the age of 19, and paid dues to them from 1993 to 2012. (Id. at 10.) However, he was not a member of the HLK throughout that entire period because he was incarcerated on several occasions, from 1998 to 2003, from 2004 to 2006, and for several months in 2010. (Id.)

         After his release from prison in 2003, Defendant sold cocaine on behalf of the HLK ten or fifteen times. (Id. at 17.) He also admitted to possessing a firearm on several occasions, including one firearm that he purchased from another HLK member. (Id. at 19.) The Court accepted Defendant's plea.

         G. Sentencing

         After the plea hearing, the probation office prepared a Presentence Investigation Report (“PIR”), scoring Defendant with a base offense level of 32 because his participation in the racketeering conspiracy made him responsible for distribution of 5 kilograms of cocaine and 550 pounds of marijuana, which is the equivalent of over 1, 000 kilograms of marijuana. (PIR ¶ 870, ECF No. 1125.) The PIR added two points to the offense level because Defendant possessed a firearm on several occasions in connection with the conspiracy, and another three points to account for Defendant's leadership role in the conspiracy. According to the PIR, Defendant held several “managerial” positions with the HLK, which meant that he was the manager of criminal activity involving five or more participants under U.S.S.G. § 3B1.1(b). (Id. ¶ 874.) The PIR also reduced Defendant's offense level by three points to account for his acceptance of responsibility and his assistance to the authorities, resulting in an adjusted offense level of 34 and a criminal history score of V. (Id. ¶¶ 872, 898.)

         Judge Bell sentenced Defendant on September 24, 2014, after delaying the proceedings for several weeks to allow Defendant to recover from back surgery. Defendant's attorney initially objected to the enhancement of Defendant's offense level for his possession of a firearm (Sentencing Mem., ECF No. 1124); however, counsel dropped that objection at the sentencing hearing because Defendant purportedly acknowledged to his attorney that he had access to a firearm when protecting his home. According to counsel, “there would be an enhancement because he would have 12 examples [of possession] or five examples or three. They need only one.” (Sentencing Hr'g Tr. 5, ECF No. 1303; see also PIR ¶¶ 168, 310, 347, 396, 620, 645, 683 (describing instances in which Defendant purportedly used or possessed a firearm).)

         Defendant's counsel also argued that the criminal history score overstated the seriousness of Defendant's history, and Judge Bell agreed. He reduced Defendant's criminal history score from V to IV. (Sentencing Hr'g Tr. 9.) Using an adjusted offense level of 34 and a criminal history score of IV, Judge Bell sentenced Defendant at the bottom of the Guidelines range to 210 months of imprisonment. (J., ECF No. 1247.)

         H. Appeal

         Defendant appealed his sentence, raising several arguments. He contended (1) that his sentence was unreasonable, (2) that he should not have been assessed enhancements for his leadership role or for possession of firearms, and (3) that his counsel was ineffective for failing to contest those enhancements. See United States v. Penaloza, 648 Fed.Appx. 508, 527 (6th Cir. 2016).

         On May 12, 2016, the Court of Appeals for the Sixth Circuit affirmed Defendant's sentence. Id. It held that his sentence was substantively reasonable. See Id. at 528. It also found that he waived his challenge to the firearms enhancement, and that this Court's application of the leadership enhancement was not plain error. Id. at 529-30. However, the court of appeals declined to consider Defendant's claim regarding ineffective assistance of counsel. Id. at 529.

         II. Motion under § 2255

         Defendant now raises the following issues in his amended motion under § 2255 and supplements thereto:

I. Denial of effective assistance of counsel[.]
II. Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea[.]
III. Conviction obtained by the unconstitutional failure of prosecution to disclose to the defendant evidence favorable to the defendant[.]
IV. Conviction obtained by use of coerced confession[.]
V. Conviction for RICO conspiracy offense under 18 U.S.C. § 1962(d) not substantive or cannot stand[.]
VI. Conviction obtained by use of court err[or.]
VII. Sentence based on miscalculated guideline scoring and information[.]
VIII. Sentencing corrections or adjustments[.]
IX. Conviction obtained by a violation of the privilege against self-incrimination.
X. Ineffective Assistance of Appellate Counsel.
XI. Administrative Segregation / Isolated Confinement[.]

(ECF Nos. 1745, 1779, 1781.)

         The Government argues that the motion should be denied because the grounds for relief are procedurally defaulted and/or meritless.

         III. Standards

         A. Merits

         A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)).

         B. Procedural Default

         As a general rule, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the defendant shows either (1) “cause” and “actual prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of counsel claim may be raised in a collateral proceeding under § 2255, whether or not the defendant could have raised the claim on direct appeal. Id.

         C. Evidentiary Hearing

         The court must hold an evidentiary hearing to determine the issues and make findings of fact and conclusions of law “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . .” 28 U.S.C. § 2255(b). No hearing is required if Defendant's allegations “cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quotation omitted).

         IV. Analysis

         Ground One: Ineffective Assistance of Counsel

         Defendant asserts that he received ineffective assistance of counsel at the trial court level for the following reasons: (1) counsel did not conduct an adequate investigation into various matters before the plea; (2) counsel failed to halt the plea hearing due to the fact that Defendant was under the influence of narcotic medication, and did not object to Defendant's statement that he was not taking such medication; (3) counsel improperly “exposed” Defendant's immunity by filing the motion to dismiss the indictment; (4) counsel did not correct the Court's purported error regarding “derivative use” immunity or make use of that immunity; (5) counsel misled Defendant about who requested the proffer; (6) counsel did not adequately prepare Defendant for a proffer with the Government; (7) counsel did not adequately inform Defendant of the consequences of the plea agreement; (8) counsel did not object to the prosecution's “direction” to Defendant regarding his guilt, particularly as it pertained to conduct “immunized” by Defendant's grand jury testimony; (9) counsel failed to inform Defendant that he could withdraw his plea; (10) counsel did not inform Defendant that he was aware, before sentencing, that the Government would not fulfill its promise to seek a sentence reduction; (11) counsel erroneously informed Defendant that he could not contest the “weights and leadership enhancements”; (12) counsel failed to postpone the sentencing hearing to allow Defendant to recover from back surgery; (13) counsel did not adequately establish Defendant's “withdrawal and complete dissociation” from the HLK in 1999 and Defendant's work with non-profit organizations; (14) counsel did not obtain information about the use of Defendant's proffer in sentencing a co-defendant; (15) counsel did not use a co-defendant's testimony to establish that the HLK was not operating for a period of time; (16) counsel withdrew a challenge to the firearms enhancement; and (17) counsel failed to seek a downward departure for a “completed term of imprisonment, ” under U.S.S.G. § 5K2.23.[1]

         In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. A court considering a claim of ineffective assistance must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The defendant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel's strategic decisions were hard to attack). The court must determine whether, in light of the circumstances as they existed at the time of counsel's actions, “the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court determines that counsel's performance was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691.

         The two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Regarding the first prong, the court applies the same standard articulated in Strickland for determining whether counsel's performance fell below an objective standard of reasonableness. Id. In analyzing the prejudice prong, the focus is on whether counsel's constitutionally deficient performance affected the outcome of the plea process. “[I]n order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.

         A. Pre-Plea Investigation (Issue 1)

         Defendant asserts that counsel failed to investigate his withdrawal from the HLK in 1999. In addition, Defendant apparently argues that the four months of conduct alleged in Count Fourteen would not have been enough to warrant the charge of conspiring to distribute 5 kilograms or more of cocaine.

         There are several problems with Defendant's argument regarding the sufficiency of counsel's pre-plea investigation and the sufficiency of the evidence in support of the charges against him. First, Defendant waived any challenge to counsel's conduct before the plea hearing and to the sufficiency of the evidence supporting the indictment when he entered his guilty plea. It has long been the case that a valid guilty plea bars habeas review of most non-jurisdictional claims alleging antecedent violations of constitutional rights. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Claims about the deprivation of constitutional rights that occur before the entry of a guilty plea are foreclosed by that plea. See United States v. Broce, 488 U.S. 563, 569 (1989). As the United States Supreme Court has explained,

a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [constitutional standards].

Tollett, 411 U.S. at 267. Consequently, a knowing and voluntary guilty plea waives all nonjurisdictional defects in the proceedings, including a claim of ineffective assistance of counsel that does not relate to the validity of the plea. See Rice v. Olson, No. 16-1125, 2016 WL 3877866, at *2 (6th Cir. July 15, 2016) (citing United States v. Stiger, 20 Fed.Appx. 307, 308-09 (6th Cir. 2001)). Accordingly, Defendant's plea waived any challenge to the sufficiency of the evidence supporting the indictment, and to counsel's actions related to the indictment or to any investigation of Defendant's involvement in the HLK.

         In addition, Defendant's assertion that his counsel should have conducted a more thorough investigation of Defendant's withdrawal from the HLK in 1999 is meritless because that fact was never contested by the Government, and it is irrelevant to Defendant's guilt and sentence. The PIR stated that Defendant renounced his membership with HLK in 1999, while he was in prison, but that he resumed ...


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