Lobo v. United States

Background

Fabio Porfirio Lobo, proceeding without a lawyer, filed a petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a sentence in the sentencing court. He sought to vacate, set aside, or correct his sentence for conspiring to import five kilograms or more of cocaine, in violation of 21 U.S.C. § 963. He had pleaded guilty without a plea agreement and was represented by Manuel Retureta.

The court sentenced Lobo to 24 years in prison. The court calculated a Guidelines recommendation of 30 years to life, while the Probation Department recommended 25 years. In imposing a below-Guidelines sentence, the court considered publicly available Sentencing Commission data showing that similarly situated defendants received an average sentence of 24.5 years. On direct appeal, Lobo challenged the reasonableness of his sentence and the court’s use of that data; the Court of Appeals held that the sentence was reasonable. The Supreme Court later denied review.

Claims and analysis

Lobo raised four ineffective-assistance-of-counsel claims under the rule established in Strickland v. Washington. To prevail, he had to show both that counsel’s performance was objectively unreasonable and that the error caused prejudice, meaning a reasonable probability that the proceeding would have had a different result.

First, Lobo argued that counsel was ineffective for failing to object to the court’s use of Sentencing Commission data without advance notice. The court rejected the claim because the notice rule applies to a Guidelines “departure,” not to a “variance” based on statutory sentencing factors. The court treated its use of the data as supporting a variance below the Guidelines range. The court also found that the data benefited Lobo and that he had not shown surprise, prejudice, or a reason why a further objection would have produced a lower sentence.

Second, Lobo argued that counsel should have objected to the court’s fact-finding under Guidelines Amendment 790 and developed the issue for appeal. The court held that the objection would have lacked merit because it applied the Guideline provision concerning Lobo’s own conduct, not the provision concerning conduct attributable to other participants. Counsel therefore was not ineffective for failing to make that objection.

Third, Lobo claimed that counsel inaccurately told him that his sentencing exposure was six to ten years. The court assumed that claim was true for purposes of its analysis but held that Lobo could not show prejudice. During the guilty-plea hearing, he acknowledged that the offense carried a 10-year mandatory minimum and a possible life sentence, discussed the government’s preliminary Guidelines calculation with counsel, and agreed that sentencing predictions could be wrong and that he could not withdraw his plea merely because the sentence differed from those predictions. The court also found that his guilty plea secured consideration for accepting responsibility, that he had not identified a basis for doubting the government’s case, and that the government could have pursued additional firearm charges had he gone to trial.

Fourth, Lobo claimed that counsel failed to obtain discovery concerning a Department of Justice and Department of State Inspector General report about misconduct by Drug Enforcement Administration agents in Honduras. The court found that counsel did seek the requested information through a discovery demand and motions to compel and adjourn sentencing. After hearing the parties, the court had denied the request because the government represented that the report’s incidents and agents were unrelated to Lobo’s prosecution, the government’s witness, or the drug-trafficking organization involved in the case.

Lobo’s remaining claim asserted that due process required the indictment and guilty plea to allege and establish that he knew the specific type and amount of drugs involved. He relied on Rehaif v. United States, which held that the government must prove certain knowledge elements in firearm-possession prosecutions. Judge Schofield held that Rehaif addressed a different statutory scheme and did not alter Second Circuit precedent stating that a defendant who personally and directly participates in the drug transaction underlying a conspiracy need not have a separate mental state concerning drug type or quantity. The court also stated that the indictment charged the drug type and amount and that Lobo admitted them in his guilty plea, even though the indictment and plea did not specify knowledge of those details. The court therefore rejected the constitutional claim as meritless. It separately explained that the claim was not raised on direct appeal and was procedurally barred, assuming Lobo had not shown an exception to that bar.

Disposition

The court denied the § 2255 petition and denied Lobo’s motion for an evidentiary hearing. The court found that the existing files and records conclusively showed that he was not entitled to relief and that the disputed sentencing-advice claim would fail even if his factual allegations were accepted. The court did not issue a certificate of appealability because Lobo had not made a substantial showing that a constitutional right was denied. It also certified that an appeal from the merits judgment would not be taken in good faith, directed entry of judgment for the United States, and directed that the civil case be closed.