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United States v. Izazaga-Pascacio

United States District Court, D. Minnesota

September 12, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
ELEUTERIO IZAZAGA-PASCACIO, Defendant-Petitioner.

          Allen A. Slaughter, United States Attorney's Office, 300 South 4th St., Ste. 600, Minneapolis, MN 55415, for the United States of America.

          Eleuterio Izazaga-Pascasio, [1] Adams County Facility, P.O. Box 1600, Washington, MS 39190.

          ORDER

          SUSAN RICHARD NELSON, United States District Judge

         This matter is before the Court on Defendant-Petitioner (“Petitioner”) Eleuterio Izazaga-Pascasio's pro se motion pursuant to 28 U.S.C. § 2255 for an order of this Court to vacate, set aside, or correct his sentence (Def.-Pet'r's § 2255 Mot. (“Pet'r's Mot.”) [Doc. No. 578].) For the reasons set forth below, this Court denies Petitioner's motion.

         I. BACKGROUND

         In September 2014, the Government charged Petitioner with multiple counts of money laundering, drug possession with intent to distribute, and conspiracy to distribute controlled substances. (See Superseding Indict. [Doc. No. 15].) Pursuant to a plea agreement and represented by counsel, Petitioner later pleaded guilty to Count 1 of an Information that charged him with conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. (See Plea Agreement at ¶ 1 [Doc. No. 386]; see also Plea Hr'g Tr. at 11, 13, 24 [Doc. No. 591].) Based on Petitioner's guilty plea, in October 2016, this Court sentenced him to a prison term of 75 months, three years of supervised release, and a $100 special assessment. (See Sentencing Hr'g Tr. at 18, 20 [Doc. No. 592]); Am. J. in a Criminal Case (“Am. J.”) [Doc. No. 532].)

         In the present motion, Petitioner claims that he received ineffective assistance of counsel, particularly during plea negotiations and sentencing. He also appears to claim that he was unconstitutionally charged in violation of the Fifth Amendment. (Pet'r's Mot. at 2-3.) Accordingly, only facts relevant to these claims are presented here.

         When the Government charged Petitioner in September 2014, this Court appointed counsel to represent him. (See Min. Entry for November 6, 2014 Proceedings [Doc. No. 83].) Soon thereafter, CJA counsel Daniel L. Gerdts (“Gerdts”) entered an appearance on Petitioner's behalf. (Notice of Att'y Appearance [Doc. No. 85].) Gerdts served as Petitioner's court-appointed counsel from November 2014 through the beginning of January 2015, and then again from September 2015 until the end of Petitioner's criminal proceedings in October 2016.[2] (See Govt.'s Opp'n Mem. Attach. 1 (“Gerdts's Aff.”) at ¶ 1 [Doc. No. 593-1].)

         Upon his second appointment as Petitioner's counsel, Gerdts undertook repeated and lengthy plea negotiations with the Government. (Id. at ¶¶ 5, 7.) According to Gerdts's affidavit, these negotiations were especially difficult given the Government's evidence implicating Petitioner in large scale drug distribution and sales schemes. (Id. at ¶ 8.) The difficulty in reaching a plea agreement was further compounded by “[Petitioner's] distrust of the criminal justice system [and] general reluctance to admit to being guilty of any crime . . . .” (Id. at ¶ 9.)

         Gerdts's affidavit sets out additional details of his representation. In total, Gerdts met with Petitioner 32 times and spent nearly 30 hours discussing all aspects of the case with him. (Id. at ¶ 2.) Additional communication occurred through telephone calls and letters. (Id.) Gerdts also traveled to California to meet with Petitioner's family and hired an investigator to assist with the case. (Id. at ¶ 3.) Overall, before Petitioner pleaded guilty, Gerdts spent nearly 125 hours reviewing extensive discovery material and government disclosures. (Id. at ¶ 4.)

         Ultimately, with Gerdts's assistance, Petitioner pleaded guilty to one count of conspiracy to distribute a controlled substance. (See Plea Agreement at ¶1.) In exchange for the plea, the Government dismissed the 12-count Second Superseding Indictment, which contained allegations of money laundering as well as more serious drug distribution offenses. (See id.; Gerdts's Aff. at ¶ 5.) As part of the plea agreement, Petitioner waived his right to appeal or collaterally attack his guilty plea or sentence unless it exceeded 87 months. (Plea Agreement at ¶ 11.) The plea agreement expressly retained Petitioner's right to bring a § 2255 motion for ineffective assistance of counsel. (Id.) For its part, the Government waived its appeal rights unless Petitioner's sentence was lower than 70 months. (Id.) Gerdts asserts that he explained the plea agreement-and the benefits and drawbacks of pleas generally-to Petitioner on numerous occasions. (Gerdts's Aff. at ¶ 12.)

         At the plea hearing, this Court accepted Petitioner's guilty plea and found that it was “free and voluntary and knowing and informed[.]” (Plea Hr'g Tr. at 23-24.) This Court found that Petitioner was aware of the charges against him, the nature of the proceedings, and the consequences of pleading guilty. (Id. at 23.) Upon questioning by the Court, Petitioner stated that he had discussed the plea agreement fully with Gerdts and that it had been translated for him. (Id. at 12-13.) He further represented to the Court that he understood the plea's terms, including the implications of his waiver of the right to appeal. (Id. at 20.) Moreover, Petitioner expressed satisfaction with the services he had received from Gerdts, indicating that he was in fact “very grateful to him.” (Id. at 5.)

         Following the plea, Gerdts continued advocating for Petitioner, both in preparation for, and at the sentencing hearing. Gerdts filed multiple objections to the Presentence Investigation Report (“PSR”), see Gerdts's Aff. at ¶ 15, and later incorporated those objections into Petitioner's sentencing position paper. (See Def.'s Position Regarding Sentencing [Doc. No. 433].) Petitioner's sentencing hearing occurred in October 2016, and Gerdts addressed his objections to the PSR with this Court at that time. (Sentencing Hr'g Tr. at 3-5.) Most notably, Gerdts objected to the PSR's relevant conduct and base offense level computations-which deviated from the parties' plea agreement and would have resulted in a harsher Guidelines sentencing range-and this Court sustained his objections. (Id.) As previously stated, this Court sentenced Petitioner to a prison term of 75 months-within the Guidelines range contained in the plea agreement. (See Am. J. at 2.; Plea Agreement at ¶ 6.)

         Petitioner did not file a direct appeal. But in January 2017, he filed the instant pro se motion under § 2255. Petitioner claims that Gerdts provided ineffective assistance of counsel. (Pet'r's Mot. at 2.) More specifically, Petitioner contends that Gerdts: (1) failed to negotiate a plea bargain; (2) failed to explain the risks and benefits of a plea offer; (3) failed to protect his appellate rights; (4) failed to object to information on which his sentence was based; and, (5) failed to object to the sentence imposed. (Id.) Though unclear from his motion, so far as the Court can discern, ...


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