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Rosales v. United States

United States District Court, W.D. Wisconsin

May 16, 2017



          BARBARA B. CRABB District Judge.

         Contending that he was sentenced improperly to a ten-year sentence for drug distribution, petitioner Orlando Rosales seeks post conviction relief under 28 U.S.C. § 2255. He believes that the court made two errors in his case: it denied him his constitutional right to the effective assistance of counsel and it used “predicate sentences” improperly in finding that he was a career offender.

         A review of petitioner's motion shows that, contrary to his assertions, his counsel gave him a vigorous and effective representation and he was not sentenced improperly. Accordingly, his motion for post conviction relief will be denied, together with his motion for appointment of counsel to assist him with a motion for post conviction relief. Having the assistance of counsel would not benefit petitioner because he has no viable claim for relief.


         In November 2014, the government filed a one-count information against petitioner, charging him with conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 845. Counsel was appointed to represent petitioner, who later waived indictment and entered a plea of guilty to the information under a written plea agreement.

         The probation office prepared a presentence report, determining that petitioner had a base offense level of 26 because he had been responsible for the distribution of at least 2.87 kilograms of cocaine. The base offense level was increased by two, because petitioner had maintained a premises for the purposes of distributing a controlled substance, and increased again by three levels because he had played a managerial or supervisory role in the offense. The offense level of 31 was then increased to 34 because petitioner was a career offender, as defined in U.S.S.G. § 4B1.1(a). He was at least 18 years old and had at least two prior felony drug distribution convictions in a Wisconsin state court: (1) possession with intent to distribute less than 200 grams; (2) possession with intent to deliver more than 2, 500 to 10, 000 grams of THC; and (3) possession with intent to distribute more than one but not more than five grams of cocaine. His sentence was reduced by three levels, to recognize the clear demonstration of his acceptance of responsibility, giving him a final offense level of 31. U.S.S.G. § 3E1.1(a) and (b). His criminal category was VI and his advisory guideline range was 188 to 235 months..

         At the sentencing hearing, petitioner's counsel called members of petitioner's family to speak on his behalf, pointed out the difficulties that petitioner had had in finding legitimate sources of income and argued that he should not be considered a career offender because some of the crimes charged against him were old, the crimes were of a minor nature and they were primarily the result of petitioner's addictions. He also noted that petitioner was facing the possibility of another sentence in state court. Petitioner's counsel acknowledged that petitioner's criminal history score gave him a base offense level of VI and that he was a career offender, but argued persuasively for a five-level downward departure in recognition of petitioner's cooperation with the government. Petitioner was given the full amount of his requested reduction and sentenced to a term of 120 months, 68 months below the low end of his guideline sentence.

         Petitioner appealed his sentence to the Court of Appeals for the Seventh Circuit, which affirmed his sentence on May 28, 2015. He filed this timely motion for post conviction relief on December 8, 2016.


         Petitioner believes that he is entitled to post conviction relief for two reasons: (1) his counsel failed to provide him an adequate defense; and (2) the sentencing court should not have used his state court drug convictions as a basis for enhancing his criminal history score. The government adds that petitioner may have as a third ground, that he is actually innocent of being a career offender, but petitioner has not pursued this argument.

         A. Alleged Ineffectiveness of Counsel

         Although petitioner had a full review of his case on appeal, he is entitled to a post conviction review of his claim of ineffectiveness of counsel because that claim implicates a constitutional right. Although post conviction review is not intended to be a substitute for a direct appeal, an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013).

         Although petitioner's prior appeal does not prevent him from proceeding on his claim,, he faces a high hurdle for obtaining relief. He must show not only that his trial counsel's performance fell below the objective standard for reasonably effective representation, but that the ineffectiveness prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Blake, 723 F.3d at 879. Moreover, the standard of review for effective representation is a “highly deferential” one. When a court assesses counsel's representation, it presumes that it is effective. Strickland, 466 U.S. at 689.

         Petitioner's allegations fall far short of showing that his counsel's representation was ineffective under Strickland's objective standard of reasonableness. His only complaint is that his appointed counsel did not obtain greater relief for him from his sentence in light of his substantial assistance. However, the record shows that counsel argued vigorously on behalf of his client, made arrangements for his family members to testify in his behalf and developed an argument designed to show that the guideline applicable to petitioner had been adopted by the Sentencing Commission without empirical research or a thorough study. Counsel urged the court to consider petitioner's family, his long history of addiction and his difficulty in finding employment. He then argued successfully for a below-guideline sentence of 120 months, which was considerably below his guideline sentence of 188 to 235 months. When petitioner appealed his sentence, the court of appeals rejected his argument that he should have received a larger reduction in this sentence, noting that the sentencing court had addressed petitioner's individual circumstances in ...

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