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United States v. Vargas

United States District Court, D. Minnesota

April 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL ANTHONY VARGAS, Defendant. Criminal No. 14-0073 (JNE/HB) (1)

          ORDER

          JOAN N. ERICKSEN United States District Judge

         The Court sentenced Defendant Michael Anthony Vargas on Count 1 of the Information in this criminal case on May 1, 2015. Vargas filed a Pro Se Motion to Vacate Under 28 U.S.C. § 2255 on November 21, 2016 [Dkt No. 76].[1] The Government opposed the motion. Dkt. No. 80. Vargas did not file a reply, although he had permission to. See Dkt. No. 79.

         Vargas had originally been indicted on a single count for Felon in Possession of a Firearm - Armed Career Criminal in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Dkt. No. 11. The Indictment listed seven convictions as predicate offenses for purposes of § 924(e)(1), the Armed Career Criminal Act (“ACCA”), which imposes a 15-year mandatory minimum sentence and a maximum sentence of life on qualifying persons found guilty of violating § 922(g). See Welch v. United States, 136 S.Ct. 1257, 1261 (2016) (sentencing range). Those listed offenses were:

Crime

Place of Conviction

Date Committed

Date Sentenced

Assault Second Degree - Dangerous Weapon

Ramsey County, MN

9/6/2003

5/19/2004

Bringing Contraband Into Correctional Institution

Chisago County, MN

7/16/2005

1/30/2007

Domestic Assault By Strangulation

Ramsey County, MN

7/27/2006

8/1/2007

Domestic Assault

Ramsey County, MN

3/14/2007

6/22/2007

Drugs - Third Degree Sale

Ramsey County, MN

4/16/2009

11/17/2009

Drugs - Sale of Simulated Controlled Substance

Ramsey County, MN

6/17/2009

11/17/2009

Violate Order of Protection

Ramsey County, MN

5/14/2012

8/30/2012

Dkt. No. 11.

         As part of negotiations between the parties, the Government filed a Felony Information that charged Vargas with one count of Possession of a Stolen Firearm in violation of 18 U.S.C. § 922(j). Dkt. No. 35. Vargas entered into a plea agreement with the Government in which he agreed to plead guilty to Count 1 of the Information in exchange for the dismissal of Count 1 of the Indictment. See Dkt. Nos. 38 (plea agreement), 63 (sentencing judgment reflecting guilty plea to Count 1 of the Information and dismissal of Count 1 of the Indictment). In the plea agreement, Vargas agreed that “he has the following prior felony convictions, ” followed by a list of offenses identical to the chart above. Dkt. No. 38 ¶ 2. Vargas pleaded guilty to Count 1 of the Information on June 3, 2014. Dkt. No. 36. The Court sentenced Vargas to 120 months' imprisonment on that count, consistent with the plea agreement. See Dkt. Nos. 63 (sentencing judgment); 59, at 6 (“Mr. Vargas respectfully asks that he be sentenced pursuant to the parties' plea agreement for a total of 120 months.”).

         Vargas now moves to vacate, set aside, or correct his sentence on the grounds of ineffective assistance of counsel. Dkt. No. 76. Vargas argues that his counsel “misadvised him” as to his minimum and maximum sentencing exposure “if he either pleaded guilty or exercised his right to trial based on the Indictment . . . .” Id. at 4. He argues that counsel's, and the Court's, advice about the applicable sentencing range if he were convicted under the Indictment was incorrect: “Post-conviction Petitioner became aware that he does not have the three requisite prior convictions for an ACCA enhancement, thus, his sentencing exposure pursuant to the Indictment was 0-10 years.” Id. Because he was misadvised as to his sentencing exposure, he concludes, his guilty plea was involuntary. Id. at 4.1. Vargas asserts that he was prejudiced because, but for the bad advice, he would have proceeded to trial “or entered an open plea to the Court, ” pursuant to which “he could have received a[] sentence in the range of 92-115 months['] imprisonment.” Id.

         Vargas had a Sixth Amendment right to the effective assistance of counsel in connection with deciding whether to plead guilty. McMann v. Richardson, 397 U.S. 759, 771 (1970). To prevail on his § 2255 claim on this basis, Vargas must make two showings. First, he must show that his counsel's performance fell below the required “range of competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56, 58-59 (1985). In other words, “counsel's performance fell below an objective standard of reasonableness . . . .” Thomas v. United States, 737 F.3d 1202, 1207 (8th Cir. 2013). “Judicial scrutiny of counsel's performance must be highly deferential.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Second, Vargas must show that he was prejudiced by counsel's ineffective performance. Hill, 474 U.S. at 59.

         The Government argues that Vargas has not made either required showing because the record reflects that his counsel accurately advised him about the minimum and maximum sentence that he would have faced if he were convicted at trial on Count 1 of the Indictment. The Government offers into the record four exhibits to establish the bare facts about four of Vargas's prior convictions:

A. May 19, 2004 conviction for Assault Second Degree - Dangerous Weapon, under Minn. Stat. § 609.222, subd. 1 (Gov't Ex. A, Dkt. No. 80-1);
B. January 29, 2007 conviction for Domestic Assault by Strangulation under Minn. Stat. § 609.2247, subd. 2, with sentencing on August 1, 2007 (Gov't Ex. B, Dkt. No. 80-2);
C. June 22, 2007 conviction for Felony Domestic Assault under Minn. Stat. § 609.2242, subd. 4 (Gov't Ex. C, Dkt. No. 80-3); and
D. November 17, 2009 conviction for Drugs - 3rd Degree Sale (Narcotic) under Minn. Stat. § 152.023, subd. 1(1) (Gov't Ex. D, Dkt. No. 80-4).

         Assuming Vargas's allegations to be true, the Court concludes that Vargas has not shown that his counsel's advice fell below the ...


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