United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255
ROBERTO A. LANGE, District Judge.
Charles His Law is serving a 96-month sentence after having pleaded guilty to a reduced charge of assault resulting in serious bodily injury under a plea agreement. United States v. His Law, 11-CR-30154-RAL, Doc. 1, Doc. 26, Doc. 47. His Law now has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. His Law v. United States, 13-CV-3016-RAL, Doc. 1. In his § 2255 motion, His Law asserts the following grounds: 1) the Government allegedly breached the plea agreement by not recommending a "within guideline sentence;" 2) His Law's court-appointed counsel allegedly was ineffective at the sentencing hearing and in an appeal; and 3) this Court allegedly erred in how it sentenced His Law. His Law filed a lengthy memorandum in connection with his § 2255 motion making clear that he is challenging the Government's urging of the sentence at the top end of the guideline range at the sentencing hearing, his counsel's preparation for and performance at the sentencing hearing and on appeal, and this Court's rulings during the sentencing hearing. CIV Doc. 2. For the reasons explained herein, this Court denies His Law's § 2255 motion.
I. Facts from Underlying Criminal Case
A. Procedural History, Plea Agreement, and Guilty Plea
On December 14, 2011, His Law was indicted on four counts. CR Doc. 1. Count I of the Indictment alleged that His Law on November 3, 2011, unlawfully assaulted Evon Ortiz with a dangerous weapon, that being shod feet, with the intent to do bodily harm to Evon Ortiz, and that federal jurisdiction existed in that His Law is an Indian and the offense occurred in Indian country. CR Doc. 1. Count II of the Indictment alleged that His Law, on November 15, 2011, used the threat of physical force against Evon Ortiz to compel her to call law enforcement and give false information about the assault investigation, thereby tampering with a victim. CR Doc. 1. Count III of the Indictment alleged that, between November 12, 2011 and December 7, 2011, His Law threatened to kill Evon Ortiz for having cooperated in the assault investigation by federal officials, thereby committing the crime of retaliating against a victim. CR Doc. 1. Count IV of the Indictment alleged that between November 12, 2011 and December 7, 2011, His Law had taken Evon Ortiz, his intimate and dating partner, outside of Indian country by force and had assaulted her thereby committing the crime of interstate domestic violence. CR Doc. 1. His Law was arraigned on December 15, 2011, and was appointed David W. Siebrasse as his counsel under the Criminal Justice Act. CR Doc. 6.
His Law and Siebrasse reached a Plea Agreement with the Government, which was filed on April 12, 2012. CR Doc. 26. The terms of the Plea Agreement contained concessions by the Government favorable to His Law. Under the Plea Agreement, His Law agreed to waive Indictment and plead guilty to an Information charging one count of assault resulting in serious bodily injury. CR Doe. 26 at ¶ C. In exchange for that guilty plea, the Government would dismiss the charges in the Indictment thereby greatly reducing the maximum penalty His Law was facing if convicted on all counts of the Indictment. CR Doc. 26 at ¶¶ B, C. Under the Plea Agreement, Siebrasse secured for His Law's benefit a commitment from the Government to agree, based on the information known to it at the time, that His Law was entitled to a reduction for acceptance of responsibility in his offense level. CR Doc. 26 at ¶¶ E, F. The Government also agreed in the Plea Agreement that "it will recommend that the Court impose a sentence of imprisonment within the applicable Guideline range." CR Doc. 26 at ¶ G. As a part of the Plea Agreement, His Law waived all defenses and any right to appeal any non-jurisdictional issues. CR Doc. 26 at ¶ Q. That waiver excluded His Law's "right to appeal any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or upward variance pursuant to 18 U.S.C. § 3553(a)." CR Doc. 26 at ¶ Q.
As a part of the Plea Agreement, His Law signed a Factual Basis Statement. CR Doc. 28; CR Doc. 57. In the Factual Basis Statement, His Law acknowledged the following facts to be true:
On or about the 3rd day of November, 2011, at Fort Thompson, in Indian country, in the District of South Dakota, Charles His Law, an Indian, did unlawfully assault Evon Ortiz, and said assault resulted in serious bodily injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6).
During October and early November 2011, the Defendant, Charles His Law, and the victim of this offense, Evon Ortiz, were in a dating and intimate relationship. They were cohabitating together at 88 Jones Drive in Fort Thompson, South Dakota, on the Crow Creek Sioux Indian Reservation. During the early morning hours of November 3, 2011, the Defendant became upset with the victim and grabbed her by the hair and dragged her into the southwest bedroom of the home. Once inside the bedroom, the Defendant began to assault the victim by punching her with a closed fist to the face and upper body area multiple times. The force of these blows knocked the victim to the floor inside the closet of the bedroom. Once the victim was on the floor inside the closet, the Defendant continued to strike her on her head and body with a closed fist. The victim was eventually able to get away, ran to a neighbor for help, and law enforcement was summoned.
The victim received medical treatment in Chamberlain, South Dakota. Medical records reveal the victim suffered two black eyes, a right nasal bone fracture, probably left nasal bone fracture, buckling of the mid nasal septum related to fracture, bilateral facial, periorbial nasal and frontal soft tissue swelling and multiple bruises to her face and body. The parties stipulate and agree the victim suffered serious bodily injury as a result of this assault.
A federal search warrant was executed on the home at 88 Jones Drive, Fort Thompson, South Dakota. During the search, a red blood-like substance was observed in the southwest bedroom and closet. Samples were taken and submitted to the South Dakota Forensic Lab. Lab results indicate that the red blood-like substance was human blood and the DNA profile extracted from the blood matches that of a known sample of the victim, Evon Ortiz.
That His Law's date of birth is April 21, 1983, and the Defendant was 28 years of age at the time of the offense.
That the Defendant is an "Indian" under the provisions of 18 U.S.C. § 1153 in that he is an enrolled member of the Rosebud Sioux Tribe, enrollment number RSU-26246, and is 15/32 degree Indian by blood, and that the offense occurred in Ft. Thompson, in Buffalo County, South Dakota, in Indian country, which is within the exterior boundaries of the Crow Creek Indian Reservation. This location is "Indian country" within the provisions of 18 U.S.C. §§ 1151 and 1153.
CR Doc. 28.
His Law appeared before this Court on April 17, 2012, at a change of plea hearing. Doc. 57. His Law was placed under oath and acknowledged his understanding that he had to answer questions truthfully. CR Doc. 57 at 2-3. Toward the beginning of the change of plea hearing, this Court had the following dialogue with His Law:
THE COURT: Have you had an ample opportunity to talk with your attorney Mr. Siebrasse about your case and about what you should do here today?
THE DEFENDANT [His Law]: Yeah.
THE COURT: Are you fully satisfied with the counsel, advice, and representation provided to you by Mr. Siebrasse?
THE DEFENDANT [His Law]: Yeah.
CR Doc. 57 at 4. The change of plea colloquy demonstrated that His Law was competent and was voluntarily and knowingly changing his plea with an understanding of his rights. CR Doc. 57. Among other things, His Law acknowledged signing the Factual Basis Statement, carefully reading and understanding the Factual Basis Statement, and going over the Factual Basis Statement with his attorney before signing it. CR Doc. 57 at 14. His Law acknowledged the accuracy of that statement as follows:
THE COURT: Is the factual basis statement accurate in what it sets forth?
THE DEFENDANT [His Law]: Yeah.
CR Doc. 57 at 14. Before taking His Law's change of plea, this Court again probed whether His Law had any complaint about his CJA counsel:
THE COURT: Have you had enough time to talk with Mr. Siebrasse about your case and about what you should do here today?
THE DEFENDANT [His Law]: Yeah.
THE COURT: Are you happy with the work that Mr. Siebrasse has done on your behalf?
THE DEFENDANT [His Law]: Yeah.
CR Doc. 57 at 15. His Law then changed his plea to guilty to the charge in the Information of assault resulting in serious bodily injury. CR Doc. 57 at 16. This Court ordered a Presentence Investigation Report (PSR) to be done and set a sentencing hearing.
B. Presentence Investigation Report and Initial Sentencing Hearing
The PSR on His Law contained a calculation of both the offense level and the criminal history category into which His Law fit under the United States Sentencing Commission Guideline Manual. With His Law having plead guilty to assault resulting in serious bodily injury, the base offense level was drawn from U.S.S.G. § 2A2.2. Because Evon Ortiz, His Law's victim, had suffered nasal fractures, buckling of the mid-nasal septum related to, the nasal fracture, facial swelling, and multiple bruises to her face and body as a result of His Law's assault, a five-level increase applied under U.S.S.G. § 2A2.2(b)(3)(B). There were other offense level enhancements deemed applicable in the initial PSR. The initial PSR also contained a Chapter 4 enhancement under § 4B 1.1 because His Law was deemed a career offender, thus increasing the offense level further. The initial PSR contemplated acceptance of responsibility credit, but noted behavior by His Law that might justify withholding the acceptance of responsibility discount in the offense level calculation.
As far as his criminal history category, His Law received three criminal history category points for a third degree burglary conviction from Davison County, South Dakota in 2003, and an additional three points for a first degree robbery conviction in Davison County, South Dakota in 2006. There was other criminal conduct in which His Law had engaged that did not result in assignment of criminal history points. Although His Law's total criminal history score was six, the initial PSR deemed His Law a career offender based on the two prior convictions for crimes of violence under U.S.S.G. § 4B1.1(b). Other information in the PSR reflected poorly on His Law and his past conduct.
Through a letter dated June 14, 2012, Siebrasse on behalf of His Law objected to multiple paragraphs of the PSR. Those objections fit into six categories: 1) objections to the victim's characterization of the assault and the characterization of His Law's conduct in connection with the assault and its aftermath; 2) an objection to an enhancement for obstructing or impeding justice based on His Law's alleged intimidation of the victim and other criminal conduct as had been charged in the indictment; 3) an objection to a notation in the PSR that His Law's conduct put in jeopardy acceptance of responsibility credits; 4) an objection to information that the victim had been restrained as a part of the assault; 5) an objection to categorization of His Law as a "career offender" both for the offense level calculation and his criminal history category; and 6) an objection to certain information about His Law's criminal conduct when he was a young man or juvenile. Based on these arguments, Siebrasse objected to the guideline range calculation in the initial PSR.
This Court convened a sentencing hearing on July 18, 2012. CR Doc. 55. The Government called as a witness Tino Lopez, a special agent with the Bureau of Indian Affairs who was the case agent involved in the investigation of His Law's assault of Ortiz. CR Doc. 55 at 6. Siebrasse objected to Agent Lopez's testimony ...