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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:03-cr-00048-SPM -GRJ

ENRIQUE MALDONADO PINEDA,

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 287, a motion to vacate pursuant to 28

U.S.C. § 2255. The motion stems from Defendant’s conviction for one count of

conspiracy to distribute and possession with intent to distribute more than 50 grams of

methamphetamine and more than 500 grams of a substance containing

methamphetamine, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(A)(viii), for which

Defendant received a sentence of 169 months imprisonment. Defendant contends that

his trial counsel rendered ineffective assistance by: (1) failing to advise him adequately

regarding the benefits and consequences of going to trial versus entering a guilty plea;

(2) failing to object to the presentence report (PSR) and to argue for a reduction in

Defendant’s offense level for minor role in the offense; and (3) failing to argue that

Defendant was eligible for sentencing under the 18 U.S.C. § 3553(f) “safety valve.” The

Court conducted an evidentiary hearing on Defendant’s claims, at which Defendant was

represented by retained counsel. Upon due consideration, and for the following

reasons, the undersigned recommends that the motion to vacate be denied. 
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Background

Defendant and co-Defendant Omar Garcia Vazquez-Casares were tried together

by a jury on March 8, 2004. During the trial, co-Defendant Octavio Ugarte-Munoz

testified as a government witness, implicating both Defendant and Vazquez-Casares in

the conspiracy. As summarized by the Eleventh Circuit in affirming Defendant’s

conviction, the evidence adduced at trial showed that:

(1) [Defendant] was present when Vazquez-Casares placed a towelconcealed package into Ugarte-Munoz’s vehicle, which was found to be

methamphetamine, and Ugarte-Munoz was offered $5000 to drive the

package to Ocala, Florida; (2) [Defendant] and Vazquez-Casares followed

Ugarte-Munoz’s vehicle in a Camaro for approximately three hours and

stopped nearby, whenever Ugarte-Munoz stopped; (3) [Defendant] was in

the car while Vazquez-Casares made 12 calls to Ugarte-Munoz and

Ugarte-Munoz called Vazquez 4 times so that instructions could be given

to Ugarte-Munoz; (4) the methamphetamine smelled like soap and was

wrapped in Wal-Mart bags; (5) soap with the same fragrance as the

methamphetamine and wrapped in Wal-Mart bags was discovered tucked

behind the wheel well of [Defendant’s] Camaro; (6) [Defendant] gave an

explanation for his destination inconsistent with Vazquez-Casares’s

explanation; (7) [Defendant] and Vazquez-Casares stated that they did

not know Ugarte-Munoz even though they had been following him for

miles and Vazquez-Casares repeatedly had spoken on the telephone with

him; and (8) [Defendant] was carrying $600 in cash and a card with the

drug supplier’s phone number on it.

Doc. 224 at 4 (concluding that the evidence was sufficient to prove that Defendant and

Vazquez-Casares knowingly participated in a drug conspiracy).

Defendant was interviewed in connection with the preparation of his PSR. He

stated that on the day of his arrest he was going to the beach with his friend, and he

denied meeting Ugarte-Munoz on the day of his arrest or knowing Ugarte-Munoz.

Using the 2003 edition of the Sentencing Guidelines, Defendant’s PSR assigned

an offense level of 34 based on the quantity of methamphetamine involved in the

offense, pursuant to U.S.S.G. § 2D1.1(c). Noting that Defendant had failed to accept

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any personal responsibility for his involvement in the offense, the PSR did not adjust

the offense level for acceptance of responsibility under § 3E1.1. Defendant had no

criminal history points, and therefore his criminal history category was I. Defendant was

subject to a statutory mandatory minimum sentence of 10 years and a maximum of life,

pursuant to 21 U.S.C. § 841(b)(1)(A). With an offense level of 34 and criminal history

category of I, Defendant’s guideline imprisonment range was 151 to 188 months. 

Defendant’s trial counsel, Thomas Edwards, did not object to the PSR. Defendant was

sentenced to 169 months imprisonment and five years of supervised release.

Although the Eleventh Circuit affirmed Defendant’s conviction, his case was

remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005). 

Doc. 224 at 9. Defendant, represented by different counsel, interposed objections to

the PSR prior to resentencing. Defendant asserted that he qualified for sentencing

under the safety valve and that he was entitled to a downward departure for his minor

role in the offense pursuant to § 3B1.2. 

At the resentencing hearing on May 1, 2006, Defendant’s counsel argued that

Defendant had acted solely as a driver for Vasquez-Casares, and should be entitled to

a three-point adjustment in offense level for his minor role in the offense. Counsel also

argued that Defendant was eligible for sentencing under the safety valve, and was

prepared to debrief on that day. In response, the Government argued that Defendant

was not merely a driver but played an active role in the conspiracy. The Government

further argued that Defendant was not entitled to sentencing under the safety valve

because Defendant had never offered the Government any truthful information, and all

information that he had proffered was misleading or false.

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The Court determined that the Defendant’s objections were not within the scope

of the Eleventh Circuit’s remand, but the Court noted “for the record that these

objections would be overruled in any event. The defendant has not shown that he is

any less culpable than other co-defendants of the case, and the defendant’s continued

denial to probation of his involvement in the offense, both before and after the trial,

precludes him from eligibility for safety valve treatment.” The Court resentenced

Defendant to 169 months’ imprisonment. His sentence was affirmed. Doc. 285. 

Defendant then filed the instant motion to vacate, alleging that his trial counsel

rendered ineffective assistance by not fully explaining to him the possible sentencing

benefits that he would receive had he pleaded guilty rather than going to trial. 

Defendant also alleges that his trial counsel rendered ineffective assistance by not

pursuing the sentencing objections that his counsel on resentencing attempted to raise. 

See Doc. 287. 

Ineffective Assistance of Counsel

Because Defendant’s claims raise the issue of counsel’s effectiveness, a review

of Strickland v. Washington, 466 U.S. 668 (1984), is appropriate. To prevail on a

constitutional claim of ineffective assistance of counsel, a defendant must demonstrate

(1) that his counsel’s performance was below an objective and reasonable professional

norm, and (2) that he was prejudiced by this inadequacy. Strickland, 466 U.S. at 686. 

The court may dispose of the claim if a defendant fails to carry his burden of proof on

either the performance or the prejudice prong. Id. at 697. The court need not address

the adequacy of counsel’s performance when a defendant fails to make a sufficient

showing of prejudice. Id.; see also Tafero v. Wainright, 796 F.2d 1314, 1319 (11 Cir. th

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1986).

With regard to the performance prong of Strickland, a defendant must provide

factual support for his contentions that counsel’s performance was constitutionally

deficient. Smith v. White, 815 F.2d 1401, 1406-07 (11 Cir. 1987). The court must th

consider counsel’s performance in light of all of the circumstances at that time and

indulge in a strong presumption that counsel’s conduct fell within the wide range of

reasonably professional assistance. Strickland, 466 U.S. at 689-90. To show counsel’s

performance was unreasonable, a defendant must establish that “no competent

counsel would have taken the action that his counsel did take.” Grayson v. Thompson,

257 F.3d 1194, 1216 (11 Cir. 2001) (emphasis omitted). This standard is objective, th

and “it matters not whether the challenged actions of counsel were the product of a

deliberate strategy or mere oversight.” Gordon v. United States, 496 F.3d 1270, 1281

(11 Cir. 2007). “The relevant question is not what actually motivated counsel, but what th

reasonably could have motivated counsel.” Id. “An ambiguous or silent record is not

sufficient to disprove the strong and continuing presumption . . . that [counsel] did what

he should have done and that he exercised reasonable professional judgment.” 

Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11 Cir. 2000) (en banc). “The th

relevant question is not whether counsel’s choices were strategic, but whether they

were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no

“absolute rules” for determining whether counsel’s actions were indeed reasonable, as

“[a]bsolute rules would interfere with counsel’s independence–which is also

constitutionally protected–and would restrict the wide latitude counsel have in making

tactical decisions.” Putnam v. Head, 268 F.3d 1223, 1244 (11 Cir. 2001). “To uphold th

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a lawyer’s strategy, [the Court] need not attempt to divine the layer’s mental processes

underlying the strategy.” Chandler, 218 F.3d at 1315 n.16. “No lawyer can be

expected to have considered all of the ways [to provide effective assistance].” Id. 

If a defense lawyer pursued course A, it is immaterial that some other

reasonable courses of defense (that the lawyer did not think of at all)

existed and that the lawyer’s pursuit of course A was not a deliberate

choice between course A, course B, and so on. The lawyer’s strategy

was course A. And [the Court’s] inquiry is limited to whether this strategy,

that is, course A, might have been a reasonable one.

Id.

To show prejudice, a defendant must show more than simply that counsel’s

unreasonable conduct might have had “some conceivable effect on the outcome of the

proceeding.” Strickland, 466 U.S. at 693. Instead, a defendant must show a

“reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A “reasonable probability is defined

as a probability sufficient to undermine confidence in the outcome.” Id. Of particular

relevance to this case, where a defendant challenges a not-guilty plea based on

ineffective assistance of counsel, he must “show that there is a reasonable probability

that, but for counsel’s errors, he would have pleaded guilty and would not have insisted

on going to trial.” Coulter v. Herring, 60 F.3rd 1499, 1504 (11 Cir. 1995) (internal th

quotations omitted).

Finally, the Eleventh Circuit has recognized that given the principles and

presumptions set forth above, “the cases in which habeas petitioners can properly

prevail . . . are few and far between.” Chandler, 218 F.3d at 1313 (11 Cir. 2000). This th

is because the test is not what the best lawyers would have done or even what most

good lawyers would have done, but rather whether a reasonable lawyer could have

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acted in the circumstances as defense counsel acted. Williamson v. Moore, 221 F.3d

1177, 1180 (11 Cir. 2000). th

Evidentiary Hearing

At the evidentiary hearing held before the undersigned on January 7, 2011,

Defendant, through an interpreter, testified that prior to trial he met with Mr. Edwards on

four or five occasions, for 15 or 20 minutes each time. An interpreter was present at

the meetings. He testified that although Mr. Edwards discussed the applicable

sentencing guideline offense levels with him, he did not explain that Defendant could

get a reduction in the offense level for acceptance of responsibility by pleading guilty, by

being considered a minor participant in the offense, or by meeting the requirements of

the safety valve. Defendant learned of these possible sentence reductions while he

was in prison. Defendant testified that had he understood all of the possible sentence

reductions, he “would have accepted culpability for guilt.” On cross-examination,

Defendant admitted that he was guilty of the charged offense, but that he had never

told that to another lawyer prior to telling his current attorney, Mr. Charles Banker, who

represented him at the evidentiary hearing.

Mr. Edwards testified on behalf of the Government. Mr. Edwards testified that

following his appointment to represent Defendant he met at length with the Defendant

on several occasions, with the assistance of a certified interpreter. Mr. Edwards

testified that throughout his case Defendant insisted that he had no involvement in drug

trafficking, and steadfastly denied any involvement in the charged conspiracy. Mr.

Edwards testified that he “absolutely” discussed with Defendant the benefits and

consequences of going to trial versus pleading guilty, and that he always does so with

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clients, particularly in drug cases which could result in imposition of lengthy mandatory

sentences. Defendant’s “steadfast decision was I’m not pleading because I don’t know

anything.” Defendant never indicated that he had changed his mind regarding his notguilty plea. Mr. Edwards testified that the Government believed Defendant had a great

deal of information and could assist himself even following the trial, but Defendant

maintained his innocence throughout the proceeding. 

On cross-examination, Mr. Edwards stated that Defendant’s insistence on his

innocence did not cause him to overlook explaining to Defendant how a guilty plea

might affect his sentencing exposure. Mr. Edwards testified that he felt frustrated with

Defendant’s denial of certain aspects of the case, and his stubbornness, but that he

would have had an in-depth discussion with him regarding a plea. He also discussed

with Defendant the benefits of cooperating with the Government and testifying as to

what he knew in order to obtain the benefit of a U.S.S.G. 5K1 reduction. He testified

that he did not know whether he would have discussed a sentence reduction based

solely on minor role in the offense, because Defendant denied knowing anything about

the offense and therefore his role could not be assessed. Mr. Edwards testified that in

his experience once a client has steadfastly maintained a position of innocence, the

lawyer-client relationship can deteriorate if an attorney continues to express doubt

about his client’s position. Mr. Edwards testified that notwithstanding Defendant’s

insistence on his innocence, he would have discussed the safety valve with him due to

the fact that Defendant had no scoreable criminal history. After discussing the benefits

of Defendant cooperating with the Government and Defendant’s insistence that he did

not know anything and was innocent, Mr. Edwards did not discuss with Defendant the

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possibility of simply entering a “straight-up” guilty plea with no cooperation agreement. 

In his view, it would have been problematic for a client who maintained his innocence to

go into court and testify under oath that there was a factual basis for his guilty plea. 

Mr. Edwards testified that he did not argue for a minor role adjustment at

sentencing because he did not believe he could make a credible argument for that, in

light of the evidence adduced at trial. He testified that he did not believe the Court

would consider that argument favorably, and that he has an obligation to present the

Court with only colorable, credible arguments. Mr. Edwards testified that he was aware

that the DEA had information that Defendant’s relationship with the other conspirators

went beyond the scope of the one charged transaction. 

Discussion

Claim One: Advice Regarding Benefit of Plea Versus Trial

Defendant contends that Mr. Edwards did not adequately advise him regarding

the benefits and consequences of pleading guilty versus going to trial. On this record,

the undersigned concludes that Defendant has established neither the deficient

performance nor prejudice prongs of Strickland with regard to his first claim. The Court

finds Mr. Edwards’ testimony more credible than Defendant’s on this point. Mr.

Edwards’ testimony supports a finding that he informed Defendant of the benefits and

consequences of entering a plea with respect to Defendant’s sentencing exposure, to

an extent consistent with Defendant’s steadfast insistence that he was innocent of the

charged conspiracy and had no information about drug trafficking. Mr. Edwards

testified that in view of Defendant’s adherence to his position, he focused on trial

preparation and advising Defendant on the sentencing benefits of cooperation. In the

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absence of any evidence in the record that Defendant ever expressed an interest in

admitting his guilt of the charged conspiracy – and in fact only admitted his guilt while

preparing for this proceeding – Defendant has not overcome the strong presumption

that Mr. Edwards exercised reasonable professional judgment in advising Defendant. 

At the evidentiary hearing, Defendant’s counsel argued that Mr. Edwards should

have advised Defendant about the possibility of pleading guilty, without cooperating

with the Government, and possibly receiving a two or three level reduction in the

offense level for acceptance of responsibility. Again, based on Defendant’s insistence

to his counsel that he was innocent, the undersigned does not find that it was deficient

performance not to so advise Defendant. 

Further, Defendant has failed to show that he was prejudiced by not receiving

such advice. Defendant’s after the fact testimony that he would have entered a guilty

plea under such circumstances, viewed through the distorting lens of hindsight, does

not alone establish prejudice. Defendant has pointed to no evidence in the record that

would support a conclusion that prior to his conviction he expressed a desire to plead

guilty and would have done so, but for counsel’s asserted error. See Diaz v. United

States, 930 F.2d 832, 835 (11 Cir. 1991) (rejecting claim that defendant was th

prejudiced by counsel’s advice that plea offer was unacceptable, when there was no

evidence that defendant had any desire to plead guilty, and defendant offered only his

after the fact testimony to support his claim that he would have pled guilty). 

Claims Two and Three: Sentencing Objections

Defendant contends that Mr. Edwards rendered ineffective assistance during the

sentencing phase by failing to pursue sentence reductions based on his allegedly minor

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role in the offense and his eligibility for the safety valve. Mr. Edwards testified at the

evidentiary hearing that he did not believe that he could credibly argue for a downward

adjustment in Defendant’s offense level based on his minor role, particularly when

Defendant continued to assert that he had no role in the offense at all.

There was tangible evidence adduced at trial which strongly suggested that

Defendant was an active participant in the conspiracy, including a business card from

Defendant’s wallet that contained the name and phone number of the drug supplier,

and the memory of Defendant’s cell phone which reflected calls received from and to

Vazquez-Casares’ and the drug supplier on the days prior to his arrest. Further,

counsel was aware that the DEA had information that implicated Defendant in drug

activity beyond the charged conspiracy. On this record, Defendant has not overcome

the strong presumption that Mr. Edwards exercised reasonable professional judgment

in refraining from pursuing an adjustment for minor role. Moreover, the Court’s

statement at resentencing that it would have rejected such an argument provides strong

support for a conclusion that Defendant was not prejudiced by counsel’s decision not to

pursue that adjustment.

Defendant’s claim that counsel was ineffective for not pursuing sentencing under

the safety valve is similarly unpersuasive. To qualify for relief pursuant to the safety

valve provision of 18 U.S.C. § 3553(f), a defendant must, inter alia, “truthfully provide

the government with all information and evidence he has concerning the offense.” 

United States v. Suarez O’Neill, 2006 WL 1153748, at *3 (11 Cir. May 2, 2006) th

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(unpublished). This is a “tell-all” provision and places an affirmative responsibility on 1

the defendant to “truthfully disclose to the government all information and evidence that

he has about the offense and all relevant conduct.” United States v. Johnson, 375 F.3d

1300, 1302 (11 Cir. 2004). Defendant points to nothing in the record that suggests th

during Mr. Edwards’ representation he would have been willing to fully and truthfully

debrief regarding his involvement in the conspiracy and all relevant conduct, and thus

Mr. Edwards’ decision not to pursue sentencing under the safety valve was neither an

unreasonable exercise of professional judgment nor did it cause prejudice to

Defendant. As the Court noted at resentencing, Defendant’s continued denial of

involvement in the conspiracy would have made him ineligible for the safety valve.

Conclusion

In light of the foregoing, it is respectfully RECOMMENDED:

That the motion to vacate, Doc. 287, be DENIED and that a certificate of

appealability be DENIED. 

IN CHAMBERS this 26 day of January 2011. th

s/ Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to the

proposed findings and recommendations within 14 days after being served with a copy of this report

and recommendation. A party may respond to another party’s objections within 14 days after being

served with a copy thereof. Failure to file specific objections limits the scope of review of proposed

factual findings and recommendations.

Unpublished opinions of the Eleventh Circuit are not considered binding 1

precedent but may be cited as persuasive authority pursuant to 11 Cir. R. 36-2. th

Case No: 1:03-cr-00048-SPM -GRJ