United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
Higinio Tafolla-Gonzalez was convicted of twenty-six federal offenses, all stemming from his leadership of a methamphetamine distribution operation. He now raises five challenges to his convictions and sentence pursuant to 28 U.S.C. § 2255. Because his challenge to his conviction for conspiracy to distribute methamphetamine and engaging in a continuing criminal enterprise makes out a Double Jeopardy Clause violation, the Court will grant his motion in part. The appropriate remedy for this violation is to vacate the conspiracy conviction. The double jeopardy violation does not, however, require Tafolla-Gonzalez be resentenced. His remaining challenges are meritless.
In February 2008, Higinio Tafolla-Gonzalez stood trial on a thirty-two counts for his involvement in an interstate methamphetamine distribution operation. United States v. Tafolla-Gonzalez , No. 4:07-cr-00088-BLW. According to Tafolla-Gonzalez, once prior to the start of his trial and twice during, the prosecutor approached Tafolla-Gonzalez through his counsel in an effort to initiate plea negotiations. The government sought Tafolla-Gonzalez's testimony against another individual involved in the distribution ring. However, Tafolla-Gonzalez did not know the individual, and so informed the government. As a result, the government never extended to Tafolla-Gonzalez a formalized plea offer, and the trial continued.
Ultimately, the jury returned a special verdict form that convicted Tafolla-Gonzalez of twenty-six counts. Most important to this motion are Tafolla-Gonzalez's convictions for (1) conspiracy to distribute methamphetamine, 21 U.S.C. § 846, under Count One of the Indictment, and (2) engaging in a continuing criminal enterprise ("CCE") under count thirty-nine of the Indictment. The jury found Tafolla-Gonzalez's involvement in the CCE began on July 28, 2004, and lasted until April 3, 2007.
At sentencing, the Court grouped Tafolla-Gonzalez's convictions together pursuant to Sentencing Guideline § 3D1.2 (d), and imposed a sentence based upon the most serious offense, the CCE conviction. Tafolla-Gonzalez's base offense level was determined primarily upon the quantity of methamphetamine for which Tafolla-Gonzalez was found responsible. See §§ 2D1.1, 2D1.5. Based upon the unopposed recommendation contained in the presentence report, the Court found that Tafolla-Gonzalez was responsible for trafficking three pounds of methamphetamine per month for twenty-two months, which is the equivalent of 29.937 kilograms. That amount of methamphetamine translates to a base offense level of 38 under the drug quantity tables. See § 2D1.1(c)(1). After the four level increase required by § 2D1.5 for his leadership role in the operation, Tafolla-Gonzalez's base offense level was 42. His criminal history category was zero. Thus, Tafolla-Gonzalez's guideline range was 360 months to life. After considering the § 3553(a) factors, the Court concluded that the appropriate sentence for Tafolla-Gonzalez's crimes was 360 months.
Tafolla-Gonzalez appealed his conviction and sentence, and the Ninth Circuit affirmed. United States v. Tafolla-Gonzalez , 2010 WL 3377647 (9th Cir. 2010). With respect to Tafolla-Gonzalez's sentence, the panel held that this Court "correctly determined the Guidelines range for [Tafolla-Gonzalez's] crimes." Id. at *3.
Acting pro se, Tafolla-Gonzalez now challenges his sentence under 28 U.S.C. § 2255. He makes five claims: (1) that his conspiracy conviction and CCE conviction constitute double punishment in violation of the Double Jeopardy clause of the Fifth Amendment because conspiracy to distribute is a lesser-included offense of the CCE offense; (2) that he was denied due process at his sentencing hearing because there was some initial confusion over which counts he had been convicted; (3) that the Court's drug quantity calculation was not supported by the evidence; (4) that by withholding a formal plea offer, the Government violated his Sixth Amendment right to counsel in light of the Supreme Court's holding in Lafler v. Cooper , 132 S.Ct. 1376 (2012); and (5) that by failing to raise the double jeopardy challenge, his counsel has committed conduct that gives rise to a claim for ineffective assistance of counsel (IAC).
In response, the Government moves to dismiss Tafolla-Gonzalez's motion. The government argues that, with the exception of his IAC claim, Tafolla-Gonzalez procedurally defaulted his claims. Furthermore, the Government argues that Tafolla-Gonzalez has failed to satisfy the elements for an IAC claim.
The Court turns first to the Government's claims of procedural default. The general rule is that "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States , 538 U.S. 500, 504 (2003). Tafolla-Gonzalez has failed show any reason why he failed to raise in his direct appeal his claims other than his IAC claim. Those claims existed at the time of his direct appeal and could have been raised there. Accordingly, those claims must be dismissed. The IAC claim remains because it could not be raised on direct appeal. U.S. v. McKenna, 327 F.3d 830, 845 (9th Cir.2003).
The Court would also note that with respect to Tafolla-Gonzalez's claim that the Court erred in calculating his drug quantity, the Ninth Circuit considered and rejected that argument in his direct appeal. In his direct appeal, the Circuit questioned "whether the district court abused its discretion in imposing a 360-month sentence." Tafolla-Gonzalez , supra at *3. The court answered its question as follows:
The district court correctly determined that the Guidelines range for Tafolla's crimes is 360 months to life. In imposing the low-end, 360-month sentence, the district court considered the 18 U.S.C. § 3553(a) factors and noted that Tafolla was the leader of a large scale methamphetamine conspiracy spanning at least 32 months. The district court also considered Tafolla's education level and family relationships, his history of substance abuse, his age, his likelihood of recidivism, and ...