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United States v. Ventura-Serafin

United States District Court, D. Nebraska

May 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
APRIL VENTURA-SERAFIN, Defendant.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge.

         This matter is before the Court on petitioner April Ventura-Serafin's (“Serafin”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Filing No. 48). For the reasons stated below, the motion is denied and no certificate of appealability shall issue.

         I. BACKGROUND

         On December 2, 2016, Serafin pled guilty pursuant to a written plea agreement to (1) possessing fifty grams or more of a mixture or substance containing methamphetamine with intent to distribute, see 21 U.S.C. § 841(a)(1) and (b)(1), and (2) carrying a firearm in relation to a drug trafficking crime, see 18 U.S.C. § 924(c). Each crime carried a mandatory minimum of five years, and the terms could not run concurrently. Id.

         In the plea agreement, Serafin admitted the offense involved between 350 and 500 grams of a mixture or substance containing methamphetamine. The government agreed that, if Serafin was eligible for an offense-level reduction for acceptance of responsibility, it would move for an additional reduction of one level under United States Sentencing Guidelines (“Guidelines”) § 3E1.1. Section V(B) of the plea agreement stated:

The parties further agree the defendant will make no “blanket” objections to the criminal history calculation (specific objections based on stated grounds are permitted). Objections to criminal history on the basis that the defendant was not the person who was convicted of the offense(s) described in the presentence investigation report or on the basis that the defendant was not represented by counsel in connection with such conviction(s), if determined to be unfounded, are evidence the defendant has not accepted responsibility and the parties agree no credit for acceptance of responsibility should be given.

         Finally, the plea agreement contained a provision waiving any right to challenge the conviction and sentence both on direct appeal and collateral attack with two exceptions. The first exception allowed Ventura-Serafin to challenge her conviction and sentence “should the Eighth Circuit Court of Appeals or the United States Supreme Court later find that the charge to which the defendant is agreeing to plead guilty fails to state a crime.” The second allowed her “to seek post-conviction relief based on ineffective assistance of counsel.”

         Ventura-Serafin's Presentence Investigation Report (“PSR”) attributed between 1, 000 and 3, 000 kilograms of marijuana equivalent to her, which would normally result in a base offense level of 30. Id. § 2D1.1(c)(5). The PSR stated she was a career offender based on two state drug convictions, which automatically raised the offense level to 34.[1] Id. § 4B1.1(b). After a two-level decrease for acceptance of responsibility and an additional one-level decrease in accordance with the plea agreement, the total offense level was 31. Ventura-Serafin's criminal history score was 12. While that criminal history score would normally result in a criminal history category of V, Ventura-Serafin's designation as a career offender resulted in a criminal history category of VI. See id.

         A total offense level of 31 and a criminal history category of VI resulted in a Guidelines range for incarceration of 262 to 327 months. Id. § 4B1.1(c)(2). The Guidelines range for supervised release was four to five years for the drug charge and two to five years for the gun charge. The probation officer recommended a downward variance to 200 months imprisonment, 140 months for the drug charge and 60 months for the gun charge, with the sentences to run consecutively. The probation officer recommended two five-year supervised release terms to run concurrently.

         Ventura-Serafin's attorney, Donald L. Schense (“Schense”), did not object to the career-offender designation and stated in a filing, “Unfortunately, but true, it appears this Chapter 4 Enhancement is correctly applied pursuant to U.S.S.G. 4B1.1. [sic] and as such, the Defendant will offer no non-frivolous objections.” The government adopted the PSR with no objections.

         At the sentencing hearing on February 24, 2017, the Court accepted the plea agreement. Neither party made any objections or argument during the hearing beyond allocution. The Court accepted the recommendation of the probation officer and sentenced Ventura-Serafin to consecutive sentences of 140 months imprisonment for the drug charge and 60 months imprisonment for the gun charge, followed by concurrent five-year terms of supervised release on each charge.

         On December 4, 2017, Ventura-Serafin filed the present motion alleging four claims of ineffective assistance of counsel. Ventura claims Schense was ineffective because he failed to (1) adequately inform her that the plea agreement prohibited any challenge to her criminal history and waived appeal, (2) object to her designation as a career offender, (3) object to the PSR, and (4) prosecute a direct appeal. The Court held an evidentiary hearing on these issues on April 20, 2018.

         II. DISCUSSION

         A. Standard of Review

         “A defendant ‘faces a heavy burden' to establish ineffective assistance of counsel pursuant to section 2255.” Deroo v. United States, 223 F.3d 919, 925 (8th Cir. 2000) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)). “To sustain [her] ineffective assistance of counsel claim[s], [Ventura-Serafin] must show ‘[her] counsel's representation was deficient and that the deficient performance prejudiced the defendant's case.'” Id. (quoting Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988)).

         B. Explanation of the Plea Agreement

         Ventura-Serafin asserts Schense “failed to adequately inform her she was entering into a plea agreement that prohibited any challenge to her criminal history and her waivers of appeal.” Ventura-Serafin believed Schense “could make any argument to mitigate the sentence exposure” and “misrepresented the specific paragraphs which ...


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