United States District Court, W.D. Missouri, Western Division
FERNANDO J. GAITAN, Jr., District Judge.
Currently pending before the Court is movant's Motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C § 2255. (Doc. #1).
On November 18, 2008, an indictment was returned charging Garcia with four counts: 1) conspiracy to distribute 500 grams or more of methamphetamine, five kilograms or more of cocaine, and 50 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846; (2) being an illegal alien in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2); 3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) and 2 and 4) illegal entry into the United States in violation of 8 U.S.C.§ 1325(a)(1). On August 19, 2009, Custodio Garcia pled guilty to the charges. On October 28, 2010, Garcia was sentenced to a total term of 180 months, 120 months on the drug counts and a mandatory consecutive sentence of 60 months on the firearm charge. Garcia appealed, arguing that the Court had erred in not granting him the safety valve relief under 18 U.S.C. § 3553(f)(2). The Eighth Circuit affirmed. Garcia's §2255 motion seeks to vacate the 60 month sentence for the firearm charge. Garcia raises two grounds in support of his motion: 1) the consecutive sentence imposed for the § 924(c) violation punishes movant for how his co-defendant exercised his Second Amendment rights and 2) counsel was ineffective for failing to raise this issue.
28 U.S.C. § 2255 provides, in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
The district court must hold an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. "Accordingly, a claim may be dismissed without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Shaw v. United States , 24 F.3d 1040, 1043 (8th Cir. 1994) (citing Larson v. United States , 905 F.2d 218, 220-21 (8th Cir. 1990), cert. denied, 507 U.S. 919 , 113 S.Ct. 1278, 122 L.Ed.2d 672 (1993)).
A. Imposition of Consecutive Sentence for Violation of 18 U.S.C. § 924 (c)
Garcia states in his first ground for relief that his sentence includes a five year consecutive sentence for aiding and abetting possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. §924(c). He states that Detective Mark Corbin testified at the sentencing hearing that the firearm at issue was possessed by a co-defendant, Jose Luis Flores-Pagaza, whom Detective Corbin made undercover firearms purchases from. Garcia states that Detective Corbin also testified that he bought the firearm after he had completed the drug purchase and that the two transactions were independent of each other. Garcia argues that independence between the transactions means that his punishment has been increased on the basis of how Jose Luis Flores-Pagaza exercised his individual Second Amendment rights. Garcia cites to District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) in support of his position.
The Government responds first that Garcia's claim was forfeited by his failure to raise the issue on direct appeal. In Grooms v. United States, 556 Fed.Appx. 548, 551 (8th Cir. 2014), the Court stated, "[a] prisoner who fails to raise a claim on direct appeal generally may not raise it in a §2255 motion." However, the Government argues that even if the Court considers Garcia's claim on the merits, it should be denied. In his initial motion, Garcia argues that the drug sale and the gun sale were two separate transactions and were independent of each other. He states that the independence of these transactions means that Garcia's punishment was increased "on the basis of how Jose Luis Flores-Pagaza exercised individual Second Amendment rights as they have been defined by the Supreme Court. See District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)." (Garcia's § 2255 Motion, p. 4A). The Government argues that in Heller, the Supreme Court did not invalidate all laws restricting the possession or use of guns and the Court specifically stated, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id . 554 U.S. at 626-27. Similarly, in United States v. Bryant , 711 F.3d 364, 368-70 (2d Cir.) cert. denied, 134 S.Ct. 804 (2013), the Court stated that "given the Supreme Court's guidance, our own jurisprudence, and the pervasive authority from our sister circuits that have addressed this issue directly, we hold that the Second Amendment does not protect the unlawful purpose of possessing a firearm in furtherance of a drug trafficking crime and that 18 U.S.C. §924(c) as applied in this case does not violate the Second Amendment." Id. at 370 (internal citations omitted). In McDonald v. City of Chicago, Illinois , 561 U.S. 742, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894 (2010), the Supreme Court stated, "It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' [ Heller] , 554 U.S. at 626, 128 S.Ct. at 2816." Thus, Garcia's punishment was not increased because his co-defendant exercised a legitimate Second Amendment right to possess a handgun. As noted above, simply because the Court in Heller struck down the District of Columbia's handgun ban does not mean that it is permissible to possess a handgun during the commission of a crime.
In his reply suggestions, Garcia states, "[w]hen [he] pleaded guilty to the § 924(c) offense he believed that all that was required to complete the offense was his assistance to the drug trafficking offense (which Garcia has admitted) while his associate in the crime possessed a firearm. Under this view Garcia would be guilty of the aiding and abetting offense on the simple basis of knowing that his co-defendant possessed a firearm, even if he did not know that his associate would use or carry the firearm during the drug trafficking offense. Under these circumstances, Garcia would be guilty of the § 924(c) offense even if the associate's possession of the firearm was within the associate's Second Amendment rights." (Reply Suggestions, pp. 2-3). In support of this argument, Garcia cites to Rosemond v. United States , 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014). Garcia states that he admitted his participation in the drug trafficking offense, but the indictment did not allege that he had advance knowledge that his co-defendant would use or carry a firearm and he did not admit any advance knowledge when he pled guilty.
The Supreme Court in Rosemond , 134 S.Ct.1240, 188 L.Ed.2d 248, stated:
An active participant in a drug transaction has the intent needed to aid and abet a § 924(c) violation when he knows that one of his confederates will carry a gun.... For all that to be true, though, the § 924 (c) defendant's knowledge of a firearm must be advance knowledge - or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. When an accomplice knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense.
Id. at 1249. In the instant case, there is ample evidence that Garcia had advance knowledge of the firearm. During his change of plea hearing, Garcia was asked:
Q. And in conjunction with that conspiracy, you heard the government talk about you selling a silver Ruger to ...