Veras v. United States

Background

Nelson Veras moved under 28 U.S.C. § 2255, a federal procedure for challenging a sentence, to vacate his sentence based on ineffective assistance of counsel. He argued that his trial lawyer should have objected to a five-level sentencing increase under U.S.S.G. § 2B1.3(b)(2)(C), which applies when a firearm is brandished or possessed during a robbery. The challenged increase was part of the sentencing calculation for Veras’s guilty pleas to Hobbs Act robbery and carjacking.

The parties had agreed to a sentencing-guidelines range of 121 to 151 months. Their plea agreement also stated that Veras waived his rights to appeal or otherwise challenge a sentence at or below 151 months. At sentencing, the court imposed 121 months. The government stated that it was uncertain whether Veras or a co-defendant personally possessed the firearm during the home invasion, but stated that witnesses identified Veras as having used a bat during the carjacking and that both defendants participated in assaulting victims.

Procedural History and Arguments

Veras first filed a § 2255 motion challenging a different conviction based on the Supreme Court’s decision in Johnson v. United States. His appointed counsel later agreed with the government that that argument lacked merit. Veras then filed an amended motion, initially represented by counsel, arguing that his trial lawyer was ineffective for failing to object to the firearm increase. The court granted Veras’s request to dismiss his appointed counsel and treated the amended motion as the operative petition. Veras did not file a reply to the government’s opposition.

The government argued that the plea agreement’s waiver barred the amended motion and that the ineffective-assistance claim also lacked merit. Veras did not challenge the negotiation or execution of the plea agreement or argue that the waiver itself resulted from ineffective assistance. His claim concerned his lawyer’s failure to object during sentencing.

Court’s Analysis

Judge Alison J. Nathan first held that the waiver was knowing and voluntary. The plea agreement expressly covered both appeals and collateral challenges under § 2255 to a sentence of 151 months or less. During the plea hearing, the court confirmed that Veras had discussed the agreement with his lawyer, understood it, and understood that he could not appeal or otherwise challenge a sentence of 151 months or less. Because Veras’s ineffective-assistance claim concerned events after the plea—his lawyer’s conduct at sentencing—the court held that the waiver remained enforceable.

The court then addressed the merits as an alternative basis for denying the motion. Under the standard from Strickland v. Washington, Veras had to show both that his lawyer’s performance fell below an objectively reasonable standard and that there was a reasonable probability that the alleged error changed his sentence.

The court ruled that there was no valid objection to the firearm increase. The sentencing guidelines allow a defendant involved in jointly undertaken criminal activity to be sentenced based on another participant’s acts when those acts were within the jointly undertaken activity, furthered it, and were reasonably foreseeable. The court explained that a defendant need not personally possess the firearm if a co-participant’s firearm possession was reasonably foreseeable.

Even assuming that Veras himself did not possess a firearm, the court found that the increase applied. It relied on the plea agreement, plea hearing, presentence report, and sentencing hearing, which it said showed that Veras substantially helped plan and knowingly participated in the armed robbery and armed carjacking. The court also stated that Veras did not claim he was unaware that a firearm would be brought or brandished and that firearm use was foreseeable in the violent offenses to which he agreed.

Because an objection would have lacked merit, the court found that counsel’s failure to make it was not objectively unreasonable. The court separately found no reasonable probability that an objection would have produced a different sentence, so Veras also failed to show prejudice.

Disposition

The court denied Veras’s motion to vacate his sentence under § 2255. It also administratively denied the specified docket requests, declined to issue a certificate of appealability because Veras had not made the required substantial showing of a constitutional-right violation, and denied permission to pursue an appeal without paying court fees. The clerk was directed to mail the order to Veras and close the case.