Bello v. United States

Background

Andres Bello, representing himself, moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his federal sentence. He argued that his lawyers had been constitutionally ineffective. Bello had pleaded guilty to Count Two of the superseding indictment, which charged him with aiding and abetting a murder carried out with a firearm during and in relation to a drug-trafficking crime. The court later imposed a sentence of principally 212 months in prison.

The plea agreement described a possible Guidelines range of 262 to 405 months, depending on Bello’s criminal-history classification, and stated that the sentence would be decided by the court. At sentencing, the government concluded that Bello belonged in Criminal History Category III, producing a Guidelines range of 235 to 293 months. The court adopted that range and imposed the 212-month sentence.

Section 2255 claims

A motion under § 2255 allows a person in federal custody to challenge a conviction or sentence based on certain constitutional, jurisdictional, or fundamental legal errors. For ineffective assistance of counsel, the court applied the two-part test from Strickland v. Washington: the defendant must show that counsel’s performance fell below reasonable professional standards and that the deficiency likely affected the result.

Claim that the guilty plea involved an uncharged crime

Bello argued that his lawyers allowed him to plead guilty to using a firearm during an attempted cocaine purchase, rather than to the narcotics conspiracy charged in the indictment. The court treated this as an argument that the plea constructively amended the indictment—that is, that the proceedings broadened the possible basis for conviction beyond the charge presented to the grand jury.

The court rejected the claim. It concluded that Bello’s own description of the events showed his participation in a narcotics conspiracy, not a separate attempt offense. The court found that his plea was consistent with Count Two and that counsel was not ineffective for allowing him to plead guilty to that count.

Advice about consecutive sentences

Bello argued that the court and his lawyers incorrectly told him that the five-year mandatory minimum sentence under 18 U.S.C. § 924(j) had to run consecutively to any other sentence. The court explained that this advice was correct under the law of the circuit when Bello pleaded guilty and was sentenced. The Supreme Court later ruled in Lora v. United States that a § 924(j) sentence could run either concurrently or consecutively, but that decision came after Bello’s plea, sentencing, and judgment. The court therefore found no ineffective assistance on this ground.

Sentencing representation

Bello argued that his lawyers did not adequately present the difficult conditions of his pretrial confinement during the COVID-19 pandemic. The court found that the sentencing memorandum discussed those conditions, counsel raised them orally, and the court expressly considered them when explaining the sentence.

Bello also argued that counsel should have emphasized the victim’s alleged wrongdoing during the drug transaction. The court found that counsel had instead argued that the shooting occurred in a chaotic setting and that Bello played a lesser role in the violence. It concluded that counsel’s decision not to argue that the victim’s conduct helped cause the murder was a reasonable strategic judgment, particularly because that argument could have produced a negative response from the government or the court.

Failure to file a notice of appeal

Bello claimed that he immediately instructed his lawyer to appeal after sentencing. His former lawyers submitted sworn declarations stating that he never asked them to file a notice of appeal or said that he intended to appeal. The court also noted that, at sentencing, Bello was told that the clerk could immediately file a notice of appeal if he requested it, but he made no such request.

The court found Bello’s statements broad and self-serving and concluded that they did not require an evidentiary hearing. It therefore rejected his claim that counsel was ineffective for failing to file a notice of appeal.

Separate sentence-reduction motion

Bello separately moved under 18 U.S.C. § 3582(c)(1)(A)(i) for a sentence reduction. He later asked to withdraw that motion because he no longer believed it had merit. The court granted the request, and the sentence-reduction motion was voluntarily dismissed.

Disposition

The court denied Bello’s § 2255 motion. It voluntarily dismissed the § 3582(c)(1)(A)(i) motion, closed the related civil case, declined to issue a certificate of appealability, and denied permission to appeal without paying court fees.