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Machado-Cantillo v. United States

United States District Court, S.D. Indiana, New Albany Division

October 23, 2018

ORLIS MACHADO-CANTILLO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on a Motion to Vacate, Set Aside or Correct a Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Orlis Machado-Cantillo (“Machado”). For the reasons explained in this Order, the motion is denied and dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. SECTION 2255 MOTION STANDARDS

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “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.” 28 U.S.C. § 2255(a). The scope of relief available under § 2255 is narrow, limited to “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).

         II. FACTUAL BACKGROUND

         On July 29, 2015, Machado was charged in a multi-count multi-defendant Second Superseding Indictment, United States v. Freire-Pifferrer et al., No. 4:14-cr-00031-TWP-VTW-6 (S.D. Ind.) (hereinafter “Crim. Dkt.”), dkt. 120. Machado was charged in counts 9, 11, 13, 17, and 19 with possession of goods stolen from interstate commerce, in violation of 18 U.S.C. § 659; counts 10, 12, 14, 18, and 20 with interstate transportation of stolen property, in violation of 18 U.S.C. § 2314; and count 23 with conspiracy to possess goods stolen from interstate commerce. Crim. Dkt. 32.

         An attorney was appointed to represent Machado in the criminal case. Because Machado is not a native English language speaker, an interpreter was used during court proceedings and by counsel to consult with Machado. See Crim. Dkt. 763 (approving payment for interpreter services).

         On March 10, 2016, with the assistance of counsel, Machado filed a petition to enter a guilty plea and plea agreement. Crim. Dkt. 362. The plea agreement, entered pursuant to Fed. R. Crim. P. 11(c)(1)(B), provided that Machado would plead guilty to counts 10, 12, 14, 18, 20, and 23 of the superseding indictment. Id. at 1. In exchange for the plea, the United States agreed it would move to dismiss counts 9, 11, 13, 17, and 19. Id. at 4.

         The parties did not stipulate as to the terms of his sentence. Rather, Machado agreed and stated that he understood that the Court would use its discretion to fashion a sentence within the statutory ranges. Id. at 2-5. He also agreed and understood that the Court would take into account the Sentencing Guidelines in determining the appropriate sentence within the statutory range, but that the Sentencing Guidelines are only advisory in nature, and thus the final determination of the sentence would be made by the Court. Id. at 2-3. The parties agreed to reserve the right to present evidence and arguments concerning what they believed to be the appropriate sentence in the matter. Id. at 4.

         Machado agreed to pay a mandatory special assessment fee of $600. Id. at 5. He also agreed that he would be required to pay restitution and that the total amount owed was at least $7, 000, 000. Id. He agreed that the restitution would be payable to the victims of the following thefts:

• the September 9, 2013, theft of Apple computer products valued at approximately $1, 280, 000 from the Ingram Micro facility in Harrisburg, Pennsylvania;
• the April 26, 2014, theft of Hewlett Packard computer products valued at approximately $608, 482.48 from El Paso, Texas;
• the June 4, 2014, theft of LG Electronics cellular telephone valued at approximately $1, 501, 500 from the Pilot Travel Center in Troy, Illinois;
• the August 1, 2014, theft of COTY cosmetic products valued at approximately $1, 224, 229.20 from the Flying J truck stop in Wytheville, Virginia;
• the October 3, 2014, theft of Samsung appliances valued at approximately $53, 000 from the Flying J truck stop in Whiteland, Indiana;
• the October 16, 2014, theft of Panasonic electronics valued at approximately $160, 000 from the Flying J truck stop in Lebanon, Indiana;
• the December 9, 2014, theft of T-Mobile cellular telephones valued at approximately $460, 000 from the Flying J truck stop in Oklahoma City, Oklahoma;
• the January 14, 2015, theft of Limited Brands products valued at approximately $807, 000 from the Flying J truck stop in Jeffersonville, Ohio;
• the February 3, 2015, theft of Mead Johnson baby formula valued at approximately $339, 000 from the Flying J truck stop in Jeffersonville, Ohio;
• the February 25, 2015, theft of COTY products valued at approximately $608, 482.48 from the Travel Centers of America in Wytheville, Virginia;

Id. at 5-6.

         In the plea agreement, Machado stipulated that, under the United States Sentencing Guidelines (“U.S.S.G.”), his base offense level was 6 based on § 2B1.1(a)(2). Id. at 8. The parties further stipulated that the total loss amount was more than $3, 500, 000 but not more than $9, 500, 000.00, and therefore 18 levels were added pursuant to U.S.S.G. § 2B1.1(b)(1)(J). Two levels were added because the offense involved 10 or more victims, § 2B1.1(b)(2)(A)(i), two levels were added because the offense involved receiving stolen property, § 2B1.1(b)(4), and two levels were added because the offense involved an organized scheme to steal good or chattels from cargo shipments, § 2B1.1(b)(14)(B). Id. at 8. The parties also stipulated that, because Machado had demonstrated recognition and affirmative acceptance of personal responsibility, he was entitled to a three-level reduction pursuant to U.S.S.G. § 3E1.1. Id. at 8-9.

         Machado waived his right to appeal or otherwise challenge his conviction or sentence, except that the appellate waiver did not encompass claims that he received ineffective assistance of counsel. Id. at 9-10. Machado also agreed that he recognized that pleading guilty might have consequences with respect to his immigration status. Id. at 10.

         In preparation for sentencing, the United States Probation Office prepared a presentence report (PSR). See Crim. Dkt. 466. The probation officer calculated Machado's total offense level at 27. Id. ¶ 32. Machado's total criminal history score was 4, which established a criminal history category of III. Id. ¶ 42. An offense level 27 combined with a criminal history category III would result in an advisory Guideline range of 87-108 months' imprisonment. Id. ¶ 73.

         A change of plea and sentencing hearing was held on July 25, 2016, with the use of an interpreter. Crim. Dkt. 761. During the hearing, the Court and parties went over the stipulated factual basis, which Machado signed and agreed to. Id.; Crim. Dkt. 486 (Stipulated factual basis). Machado's counsel made two objections to the PSR. The first objection was to ¶ 23 of the PSR, that being a two-level enhancement because the offense involved receiving stolen property and the defendant was a person in the business of receiving and selling stolen property. Crim. Dkt. 486 at 22. The Court overruled objection number 1. Counsel also objected to how the amount of loss was calculated, arguing that paragraph 2 lists stolen goods totaling only $2, 463, 000.00. Crim. Dkt. 486 at 23. Discussion was held explaining the loss is the value of the stolen goods at the time the merchandise was stolen and includes intended loss. The Court overruled objection number 2. The Court accepted Machado's guilty plea and sentenced him to 96 months' imprisonment, to be followed by three years of supervised release. Crim. Dkt. 488. An amended Judgment that included restitution amounts was entered on October 11, 2016. Crim. Dkt. 609. Machado did not appeal his conviction or sentence.

         On February 16, 2017, Machado filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. 1; see also Dkt. 5 (amended § 2255 motion). On May 10, 2017, counsel was appointed to represent Machado in this action pursuant to 18 U.S.C. § 3006A. On October 9, 2017, through appointed counsel, Machado filed a second amended motion[1]. Dkt. 24. The United States filed a response. Dkt. 26. Machado did not file a reply, and the time to do so has passed.

         III. DISCUSSION

         Machado seeks relief pursuant to § 2255 arguing that his trial counsel provided ineffective assistance of counsel for: (1) failing to submit a sentencing memorandum outlining mitigating factors; (2) failing to establish that Machado did in fact want to plead guilty, when his primary language was Spanish; (3) failing to present any witnesses or evidence on Machado's behalf during sentencing; (4) failing to provide a more compelling sentencing argument; and (5) failing to adequately explain the consequences of pleading guilty - Machado thought he was pleading to 70 months yet he was sentenced to 96 months. Dkt. 24 at 3-5. Machado also separately asserts that his plea of guilty as to Count 18 was no knowingly made because his primary language is Spanish. Id. at 6-7.

         A. Ineffective Assistance of Counsel Standard

         A petitioner claiming ineffective assistance of counsel bears the burden of showing (1) that trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F .3d 909, 915 (7th Cir. 2011). If a petitioner cannot establish one of the Strickland prongs, the court need not consider the other. Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014). To satisfy the first prong of the Strickland test, a petitioner must direct the court to specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The court must then consider whether in light of all of the circumstances whether counsel's performance was outside the wide range of professionally competent assistance. Id. In order to satisfy the prejudice component, a petitioner must establish 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. In addition, in attacking trial counsel's performance, a defendant “must ‘overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'” Frentz v. Brown, 876 F.3d 285, 293 (7th Cir. 2017) (quoting Strickland, 466 U.S. at 689).

         In the context of guilty pleas, “in 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 ...


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