Almonte v. United States

Background

Maria Magdalena Almonte pleaded guilty to one count of using interstate commerce to promote unlawful activity, in violation of 18 U.S.C. §§ 1952(a)(3) and 2. The charged conduct involved using a cellular telephone and the Internet to promote a criminal business engaged in sex trafficking and prostitution. Under the plea agreement, the parties stipulated to a Sentencing Guidelines range of 60 months. Almonte was sentenced to 60 months’ imprisonment on March 26, 2018.

The plea agreement preserved Almonte’s ability to challenge her conviction or sentence based on ineffective assistance of counsel, but otherwise waived direct appeal and collateral challenges. Proceeding without a lawyer, she filed a petition under 28 U.S.C. § 2255 on October 15, 2018. She raised ineffective-assistance claims based on the Supreme Court’s decision in Sessions v. Dimaya and on counsel’s failure to seek a minor-participant reduction under the Sentencing Guidelines. She also argued that Dimaya meant she was no longer subject to deportation.

Legal standards

A court may grant relief under § 2255 when a sentence violates the Constitution or federal law, the sentencing court lacked jurisdiction, the sentence exceeds the lawful maximum, or the sentence is otherwise subject to collateral attack. For an ineffective-assistance claim, the petitioner must show both that counsel’s performance was objectively unreasonable and that there is a reasonable probability that the alleged error affected the result. The court also explained that a hearing is required unless the motion and case records conclusively show that the prisoner is not entitled to relief.

Court’s analysis

Dimaya and ineffective assistance. Almonte argued that counsel should have claimed that the court’s use of 18 U.S.C. § 25 was unconstitutional under Dimaya. Section 25 increases penalties when a defendant intentionally uses a minor to commit a crime of violence. Dimaya held that the residual clause in the federal definition of “crime of violence” was unconstitutionally vague.

The court ruled that counsel’s failure to cite Dimaya at sentencing was not objectively unreasonable because lawyers are not required to predict changes in the law. The court also held that the proposed Dimaya argument lacked merit even if Dimaya had already been binding when Almonte was sentenced. The court had not applied § 25 to Almonte’s sentence; she was not charged with a crime of violence or with using a minor to commit one. The court therefore found Dimaya irrelevant to her conviction and sentence.

Sentencing role reduction. Almonte argued that counsel should have sought a two-point reduction under Sentencing Guidelines § 3B1.2(b) for being a minor participant in the criminal activity. The court rejected this ineffective-assistance claim because the parties’ stipulated Guidelines calculation did not include that reduction, and the plea agreement stated that neither side would seek a Guidelines departure or adjustment not included in the agreement. The court held that it was not unreasonable for counsel to decline to make an argument plainly barred by the plea agreement.

Deportation issue. The court held that Almonte’s request concerning deportation was outside the jurisdiction granted by § 2255. That statute allows a court to vacate, set aside, or correct a sentence; it does not allow the district court to review an order of removal. Under 8 U.S.C. § 1252(a)(5), a petition for review in the appropriate court of appeals is the sole and exclusive method for judicial review of an order of removal.

Disposition

The court dismissed the § 2255 petition. It also ruled that no certificate of appealability would issue because Almonte had not made a substantial showing that a constitutional right was denied. The Clerk of Court was directed to close the case.