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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ELDERT VEJAR-NUNEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

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Case No. C05-2075-MJP-JPD

REPORT AND RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

Petitioner is a federal prisoner who has filed a motion under 28 U.S.C. § 2255 that

seeks to vacate, set aside, or correct his 2005 federal court sentence. Following a careful

review of the parties’ pleadings and the record, the Court recommends that petitioner’s 

§ 2255 motion be denied.

II. FACTS AND PROCEDURAL HISTORY

On June 16, 2004, petitioner and twenty-two other defendants were named in a first

superceding indictment in which petitioner was charged with one count of conspiracy to

distribute methamphetamine, one count of attempted possession of methamphetamine with

intent to distribute, and one count of conspiracy to engage in money laundering. Case No.

CR04-240-MJP, Dkt. No. 135. Petitioner was arrested with more than 1,700 grams of pure

methamphetamine. Dkt. No. 501 at 14-15. These charges carried a maximum possible

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Other charges against petitioner were dismissed at sentencing. Dkt. Nos. 437, 438. 

REPORT AND RECOMMENDATION

PAGE -2

sentence of life imprisonment, a mandatory minimum of ten years’ imprisonment, and a fine of

up to four million dollars. Dkt. No. 168; 21 U.S.C. § 841(b)(1)(A).

Following settlement negotiations conducted by a district court judge on December 10,

2004, petitioner entered into a plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C). He

pleaded guilty to conspiracy to distribute over fifty grams of methamphetamine and five grams

of pure methamphetamine in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B), and 846. Dkt.

No. 363. This was a lesser-included offense of the charge involving 500 grams or more

contained in the first superceding indictment.1 Id. The lesser-included offense carried a

maximum prison term of forty years, a mandatory minimum of five years, and up to a two

million dollar fine. 21 U.S.C. §§ 841(a), 841(b)(1)(B), and 846. As part of the plea

agreement, petitioner agreed to a specific term of 84 months’ imprisonment. Dkt. No. 363. 

Petitioner was represented by counsel and pleaded guilty before a United States

Magistrate Judge. Dkt. Nos. 360, 630. At the hearing, the petitioner was asked specifically if

he agreed to the term of 84 months’ incarceration and he responded, “Yes.” Id. at 8. He also

acknowledged that he could not withdraw his plea later because he had changed his mind about

the sentence, but that either party could withdraw if the District Judge imposed a sentence

other than 84 months’ of imprisonment. Id. at 12. The Magistrate Judge confirmed that

petitioner was not pressured to plead guilty, he had not been promised anything outside of the

plea agreement, and the decision to plead guilty was his own. Id. at 12-14. A finding was

made and subsequently adopted, that the “plea was made knowingly, intelligently, and

voluntarily.” Id. at 13; Dkt. Nos. 363, 364, 462. 

On March 3, 2005, a hearing was held and petitioner, represented by counsel, was

sentenced at that time. Dkt. No. 501. Before imposing the sentence, in response to a letter

sent by petitioner, the Court specifically inquired as to why an 84-month term of imprisonment

was appropriate, and why no § 5K1.1 motion was submitted by the government. Id. at 5. 

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The calculation included a three point downward departure for acceptance of

responsibility, and a criminal history of one. Dkt. No. 501 at 22.

REPORT AND RECOMMENDATION

PAGE -3

After explanations by both the government and defense counsel, the Court determined that the

agreed-upon sentence was appropriate because the constitutionality of the Sentencing

Guidelines was in question, and because the agreement facilitated resolution of a “very large

conspiracy” in which both parties were attempting to avoid a long and complex trial. Id. at 22-

23. The Court also determined that because petitioner had been found with more than 1,700

grams of pure methamphetamine, if convicted, his total offense level would have been 35.2 Id.

at 14-15, 22. Under the Guidelines, an offense level of 35 would have resulted in a range of

between 168 to 210 months. Id. at 22. Defense counsel acknowledged that if convicted, even

if other enhancements were resolved in petitioner’s favor, the amount of drugs involved would

have resulted in a much harsher sentence than the agreed-upon sentence. Id. at 501. The

Court held that petitioner would “receive the benefit of [his] bargain . . .” and imposed a

sentence of 84 months in custody followed by four years of supervised release. Id. at 24; Dkt.

No. 438. 

The Court explained that it could not award a downward departure for substantial

assistance to the government in the absence of a motion by the government. Dkt. No. 501 at

24. The government, however, determined that such a motion was unwarranted. 

Petitioner appealed to the Court of Appeals for the Ninth Circuit, arguing that the

District Court erred in determining that the government’s failure to file a United States

Sentencing Guideline (“Guidelines”) § 5K1.1 substantial-assistance motion was not subject to

review. In an unpublished opinion, the Court of Appeals held that petitioner provided no

evidence that the government improperly declined to file such a motion and affirmed his

conviction. U.S. v. Vejar-Nunez, 154 Fed. Appx. 588 (9th Cir. 2005). On December 7, 2005,

petitioner filed the present 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. 

Dkt. No. 1.

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REPORT AND RECOMMENDATION

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III. CLAIMS FOR RELIEF 

Petitioner argues that he received ineffective assistance of counsel at sentencing in

violation of the Sixth Amendment to the United States Constitution. He argues that his lawyer

(1) should have moved to qualify him for a sentencing reduction under the Guidelines’ “safety

valve” provision; (2) should have sought a downward departure for “aberrant behavior;” and (3)

“misrepresented and misadvised” him. Dkt. No. 1.

IV. DISCUSSION

In order to challenge the validity of a guilty plea on the basis of ineffective assistance of

counsel, petitioner must “attack the voluntary and intelligent character of the guilty plea[.]” 

Washington v. Lampert, 422 F.3d 864, 872-73 (9th Cir. 2005) (citing Hill v. Lockhart, 474 U.S.

52, 58 (1985)). The Supreme Court has held that the two-prong analysis set forth in Strickland

v. Washington, applies to ineffective-assistance-of-counsel challenges to guilty pleas. Id. Thus,

petitioner must show (1) that his lawyer’s representation “fell below the range of competence

demanded of attorneys in criminal cases,” and (2) that he was prejudiced by that behavior. 

Riggs v. Fairman, 399 F.3d 1179, 1182 (9th Cir. 2005) (citing Strickland v. Washington, 466

U.S. 668, 687 (1986)).

The first prong requires petitioner to show that defense counsel’s performance fell below

an objective standard of reasonableness. Id. The second prong requires petitioner to show a

reasonable probability that, but for counsel’s errors, he would not have pleaded guilty. Id. This

probability must be so serious that it undermines the Court’s confidence in the outcome of the

case. Id. “Because of the difficulties in evaluating attorney performance in hindsight, courts

indulge a strong presumption that counsel’s performance fell within the wide range of reasonable

professional assistance.” U.S. v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005) (internal

citations and quotations omitted).

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The so-called “safety valve” provision instructs the sentencing judge to disregard the

mandatory minimum sentence if the court finds the defendant has met the following five

criteria: (1) the defendant has no more than one criminal history point; (2) the defendant did

not use violence or threats of violence or possess a firearm or other weapon in connection with

the offense; (3) the offense did not cause death or bodily injury; (4) the defendant did not

receive an upward adjustment for an aggravating role in the offense under section 3B1.1; and

(5) the defendant, no later than the time of sentencing. “truthfully provided to the Government

all information and evidence the defendant has concerning the offense or offenses that were

part of the same course of conduct or of a common scheme or plan, but the fact that the

defendant has no relevant or useful other information to provide or that the Government is

already aware of the information shall not preclude a determination by the court that the

defendant has complied with this requirement.” 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2; U.S. v.

Brinton, 139 F.3d 718, 721 (9th Cir. 1998), overruled on other grounds by U.S. v. Nordby,

225 F.3d 1053, 1059 (9th Cir. 2000). The safety valve, in practice, provides relief only if the

defendant’s offense level results in a sentencing range below the mandatory minimum. See

Brinton, 139 F.3d at 721. Here, the safety valve would not have applied because petitioner’s

offense level led to between 168 to 210 months’ incarceration. Dkt. No. 501 at 22.

REPORT AND RECOMMENDATION

PAGE -5

A. Petitioner Has Not Shown That Counsel’s Assistance Fell Below an

Objective Standard of Reasonableness for Criminal Defense, Nor

Prejudice.

Petitioner has failed to demonstrate that his lawyer rendered objectively unreasonable

assistance of counsel. Petitioner argues that he received ineffective assistance because his

attorney failed to qualify him for the Guidelines’ 5C1.2 “safety valve” provision,3 and that his

attorney erroneously failed to seek a downward departure for aberrant behavior under Section

5K2.20. Dkt. No. 1. Id. Assuming, that petitioner’s allegations are true, they fail to state a

claim for relief because they do not demonstrate that his lawyer rendered objectively

unreasonable assistance. 

Based upon the drug charges in the first superseding indictment, if convicted, petitioner

would have faced a minimum term of ten years’ imprisonment, and a maximum term of life on

each count. Case No. CR04-240-MJP, Dkt. No. 168; 21 U.S.C. § 841(b)(1)(A). At sentencing,

the Court determined that petitioner’s offense level would have resulted somewhere between

168 to 210 months’ incarceration, nearly twice the amount he agreed to in the plea agreement. 

Dkt. No. 501 at 22. Facing these charges, petitioner entered into a plea agreement in which he

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REPORT AND RECOMMENDATION

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pleaded guilty to a lesser-included offense in exchange for a specified term of 84 months’

imprisonment. Dkt. No. 363. Pursuant to Fed. R. Crim. P. 11(c)(1)(C) and the explicit terms

of the plea agreement, if the petitioner was not sentenced to the agreed upon 84 months, then

either party could withdraw. Dkt. No. 363. If this happened, then petitioner would be facing

the more inclusive and onerous charges that were dismissed as part of the plea agreement. The

sentencing transcript and sentencing memoranda submitted by both parties reflect their

understanding that potentially more than 1,700 grams of methamphetamine were involved in the

case. Dkt. Nos. 433, 434, 501. 

The plea agreement specifically noted that the only potential for a downward departure

would be upon the government’s motion for petitioner’s possible cooperation in its ongoing

investigation. Dkt. No. 363 (emphasis added). “No other agreement [had] been made with

regard to imposition of . . . [petitioner’s] sentence[.]” Id. By entering into the plea agreement,

petitioner agreed to serve a specific sentence that was significantly shorter than the potential

sentence he otherwise faced had he been convicted. Even though petitioner’s counsel did not

move for a safety valve or aberrant behavior reduction at sentencing, his action was reasonable. 

Indeed, doing so would have violated the agreement. Petitioner cannot show prejudice since the

sentence he agreed to was far shorter than what he would have faced if convicted at trial. 

Petitioner cannot satisfy either prong of the Strickand analysis, and his claim for relief must fail.

B. Petitioner’s Vague Allegations Do Not Demonstrate Ineffective Assistance.

Petitioner also claims:

Defence [sic] counsel was ineffective at sentencing for misrepresenting and

misadvised [sic] the plea to defendant, that defendant was going to receive a

sentence of 84 months in custody, to induce the guilty plea. Invoking this

knowledge, defendant entered a plea of guilty with the full assurance and hope

from defence [sic].

Dkt. No. 1. This argument is unclear. In fact, petitioner received the 84-month sentence agreed

to in the plea agreement and in the parties’ sentencing memoranda. There is no indication that

the sentence was erroneous, nor that the plea was not knowingly and voluntarily made. 

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REPORT AND RECOMMENDATION

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Petitioner acknowledged that the plea agreement was made “freely and voluntarily, and that no

threats or promises, other than the promises contained in [the agreement], were made to induce

[him] to enter [his] plea of guilty.” Dkt. No. 363. At sentencing, he specifically stated that he

“was [not] hoping for a lesser sentence . . . , [and that he] signed for 84 months.” Dkt. No. 501

at 21. The Magistrate Judge accepting the guilty plea found specifically that the plea was “was

knowingly, intelligently, and voluntarily entered.” Dkt. Nos. 364, 462. The petitioner also

acknowledged that he was satisfied with the representation he had received from his attorney. 

Dkt. No. 603 at 5. In light of the record, petitioner’s vague and conclusory claims do not show

that his counsel was ineffective. See Shah v. U.S., 878 F.2d 1156, 1161 (9th Cir. 1989)

(observing that vague and conclusory allegations of ineffective assistance do not require an

evidentiary hearing). 

C. An Evidentiary Hearing is Not Required.

An inmate filing a claim for federal habeas relief under 28 U.S.C. § 2255 is entitled to 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 ¶ 2. The Ninth Circuit has explained

that, under this standard, an evidentiary hearing is not required when a petitioner’s allegations

“do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant

summary dismissal.” U.S. v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (internal citations and

quotations omitted). Here, an evidentiary hearing is not required. Petitioner’s allegations, even

if true, fail to state a claim of ineffective assistance of counsel. The present record demonstrates

that petitioner’s guilty plea was knowingly and voluntarily made, and that defense counsel could

not have moved for a departure since both parties had agreed to the 84-month sentence

contained in the plea agreement. An evidentiary hearing is not required.

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REPORT AND RECOMMENDATION

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V. CONCLUSION

For the reasons discussed above, the Court recommends that petitioner’s 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct his 2005 federal court sentence be denied. A

proposed order accompanies this Report and Recommendation. 

DATED this 1st day of May, 2006. AJAMES P. DONOHUE

United States Magistrate Judge 

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