Romero v. United States

Background

Ludwig Criss Zelaya-Romero filed a petition under 28 U.S.C. § 2255, a federal procedure allowing a person in federal custody to challenge a sentence in limited circumstances. He represented himself. He sought to vacate, set aside, or correct the sentence imposed after his guilty plea to one conspiracy count involving the importation of cocaine, in violation of 21 U.S.C. § 963, and one conspiracy count involving the use and carrying of firearms in relation to a drug-trafficking conspiracy, in violation of 18 U.S.C. § 924(o).

The court sentenced him on May 10, 2021. The applicable Guidelines range was 235 to 293 months. His lawyer requested 84 months and presented mitigating information, including Zelaya-Romero’s surrender and confession, health problems, possible safety concerns in prison, expected deportation after release, difficult upbringing, rehabilitation efforts, and confinement conditions. The court imposed 144 months, a 91-month reduction from the low end of the Guidelines range.

Claims

Zelaya-Romero argued that his lawyer was ineffective for failing to seek either a lower Guidelines departure or an additional discretionary variance based on the consequences of his deportable non-citizen status. He pointed to possible ineligibility for benefits under 18 U.S.C. § 3624(c), the CARES Act, the First Step Act, and the Residential Drug Abuse Treatment Program. He also cited alleged harsher conditions in private prisons and broader concerns about racism in the criminal justice system.

He separately argued that counsel should have relied on the Honduras extradition order to limit prosecution to conduct beginning in 2014, limit the conduct considered at sentencing, or advise him not to plead guilty to charges covering conduct from 2004 through 2014.

Legal standards

To establish ineffective assistance of counsel under the Sixth Amendment, a petitioner must show both that the lawyer’s performance fell below an objective standard of reasonableness and that the deficient performance probably affected the result. The court may deny a § 2255 petition without a hearing when the motion and existing records conclusively show that the petitioner is not entitled to relief.

Court’s analysis

The court held that counsel was not ineffective for failing to seek a Guidelines departure based on the consequences of deportable non-citizen status. Under Second Circuit precedent, such a departure would require extraordinary circumstances that the Sentencing Commission had not considered. The court concluded that the claimed loss of access to reentry, home-confinement, halfway-house, First Step Act, or drug-treatment benefits did not meet that standard. It also concluded that the claimed possibility of harsher confinement in private prisons did not qualify as an extraordinary circumstance.

The court also rejected the related variance claim. Counsel had requested a substantial variance and presented many mitigating arguments, and the court ultimately imposed a sentence 91 months below the Guidelines minimum. The court concluded that counsel was not deficient merely because he chose other mitigating arguments instead of the additional arguments Zelaya-Romero proposed. The court also found no reasonable probability that raising those arguments would have produced a different sentence.

Regarding the extradition order, the court noted that counsel had raised the issue in a 2018 discovery motion, and the trial court had rejected it on the merits. Not raising the same issue again at sentencing was a reasonable strategy, particularly because counsel focused on arguments that produced a substantial sentencing reduction. The court further held that sentencing courts may consider relevant conduct beyond the charged offense, so limiting the charges would not necessarily have prevented consideration of the broader conduct.

The court rejected the challenge to the guilty plea because Zelaya-Romero did not allege or provide evidence that the plea was involuntary or unintelligent, that counsel concealed information, failed to explain alternatives, or coerced him. Advising him to accept a plea with a maximum prison term of less than 25 years, when he faced multiple charges carrying a combined maximum of 60 years, was not outside the range of competent representation.

Disposition

The court denied the § 2255 petition and denied the motion for an evidentiary hearing. It also declined to issue a certificate of appealability because Zelaya-Romero had not made a substantial showing that a constitutional right was denied. The court directed entry of judgment for the United States and closure of the civil case.