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Delpin-Gonzalez v. United States

United States District Court, D. Delaware

September 30, 2019

RICARDO DELPIN-GONZALEZ, Movant/Defendant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff.

          Ricardo Delpin-Gonzalez. Pro se Movant.

          Jennifer K. Walsh, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.

          MEMORANDUM OPINION

          STARK, U.S. District Judge

         I. INTRODUCTION

         Ricardo Delpin-Gonzalez ("Movant") filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (D.I. 340; D.I. 341) The United States ("government") filed an Answer in Opposition. (D.I 371) For the reasons discussed, the Court will deny Movant's § 2255 Motion without holding an evidentiary hearing.

         II. BACKGROUND

         On August 31, 2016, Movant pled guilty to one count of conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846, and one count of conspiracy to distribute cocaine in violation of §§ 841(a)(1), (b)(1)(C) and 846. (D.I. 3 at 1, 3; D.I 345 at 14, 20) Movant entered an "open plea, " i.e., without a plea agreement. (D.I. 345 at 2, 7) On December 21, 2016, the Court sentenced Movant to a total of seventy-two months of imprisonment. (D.I 259 at 2) Movant did not appeal his conviction or sentence.

         Movant timely filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (D.I 340; D.I 341) The Government filed a Reply in Opposition, to which Movant filed a Response. (D.I. 365; D.I 366)

         III. DISCUSSION

         The instant Motion asserts the following two grounds for relief: (1) defense counsel provided ineffective assistance by "failing to foreclose the Government's request at sentencing that Movant was leader [of the conspiracy] for which he received a (4) four point enhancement pursuant to U.S.S.G. 3B1.1(a);" and (2) the Court "erred in applying the 4 point enhancement for [a] leadership role."[1] (D.I. 341 at 2-3) The government contends that the Claim One should be denied as meridess and Claim Two should be denied for failing to assert a proper basis for § 2255 relief.

         A. Claim One: Ineffective Assistance of Counsel

         Movant has properly raised his ineffective assistance of counsel allegation in a § 2255 morion. See Massaro v. United States, 538 U.S. 500 (2003). As a general rule, ineffective assistance of counsel claims are reviewed pursuant to the two-prong standard established in Strickland v. Washington, 466 U.S. 668 (1984). Under the first Strickland prong, a movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness, " with reasonableness being judged under professional norms prevailing at the rime counsel rendered assistance. Id. Under the second Strickland prong, a movant must demonstrate a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. See Id . at 694; United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). In the context of a guilty plea, a movant satisfies Strickland's prejudice prong by demonstrating that, but for counsel's error, there is a reasonable probability that he would have insisted on proceeding to trial instead of pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). Moreover, "[w]here defense counsel fails to object to an improper enhancement under the Sentencing Guidelines, counsel has rendered ineffective assistance." Jansen v. United States, 369 F.3d 237, 244 (3d Cir. 2003). A court may choose to address the prejudice prong before the deficient performance prong, and may reject an ineffectiveness claim solely on the ground that the movant was not prejudiced. See Strickland, 466 U.S. at 668. Although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's representation was professionally reasonable. See Id . at 689.

         In his Memorandum in Support, Movant contends that defense counsel provided ineffective assistance during the sentencing phase by failing to "foreclose the Government's request" that his sentence should be enhanced four levels pursuant to the leadership enhancement - U.S.S.G. § 3B1.1(a). (D.I. 341 at 2-3) In its Response, the government contends that Movant's ineffective assistance of counsel claim is meritless because defense counsel esplicitly objected to the leadership enhancement during the sentencing phase; the government supports this contention with cites to both the sentencing transcript and Movant's sentencing memorandum. In his Reply to the Government's argument, Movant asserts a different ineffective assistance allegation, namely, that defense counsel failed to "foreclose the possibility of a leadership enhancement prior to Movant's change of plea" (D.I. 366 at 2) (emphasis added) Movant contends that defense counsel's performance fell below an objective standard of reasonableness because counsel failed to inform him during the pre-plea stage that there was a possibility his sentence would be enhanced four levels under § 3B1.1(a) if he was found to be an organizer or leader of the conspiracy. (D.I. 366 at 3) Movant also asserts that he was prejudiced by defense counsel's performance during the pre-plea stage because counsel failed to assert (presumably to the government or the Court) that: (1) Movant was only a supplier to Friel; (2) Movant did not control or direct Friel's distribution in any way; (3) Movant was not an organizer of criminal activity involving five or more people; and (4) Movant was not a member of Friel's drug organization. (D.I. 366 at 4)

         Movant's arguments are unavailing. To begin, as noted by the government, the record clearly demonstrates that defense counsel challenged the application of the leadership enhancement during the sentencing phase. For instance, three pages of Movant's Sentencing Memorandum were dedicated to arguing that the leadership enhancement should not apply. (D.I. 241 at 7-10) Additionally, during the sentencing hearing, defense counsel presented a detailed factual argument as to why he believed the leadership enhancement was inapplicable to Movant's case. (D.I. 347 at 4-9) The fact that the Court rejected defense counsel's objection to the enhancement does not demonstrate that counsel provided ineffective assistance. See generally Strickland, 466 U.S. at 699 ("On these facts, there can be little question, even without application of the presumption of adequate performance, that trial counsel's defense, though unsuccessful, was the result of reasonable professional judgment."); see also United ...


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