United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge
petitioner Sherwin Santos has moved the Court to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
He alleges ineffective assistance of counsel in violation of
the Sixth Amendment. Docket No. 30. The motion is
pleaded guilty, without a plea agreement, to one count of
Illegal Reentry in violation of 18 U.S.C. § 1326.
According to the Presentence Report (“PSR”)
prepared by the United States Probation Office, Santos'
base offense level was 8. Santos received a 12-level increase
as he was previously deported after a conviction for a felony
drug trafficking offense for which the sentence imposed was
13 months or less and which receives criminal history points.
See U.S.S.G. § 2L1.2(b)(1)(A)(i). Santos
received a three-level reduction for acceptance of
responsibility, bringing his total offense level
(“TOL”) to 17 with a criminal history category of
II, resulting in an advisory guideline range of 27-33 months.
initially objected to the PSR and the 12-level enhancement,
arguing the total enhancement under U.S.S.G. §
4A1.2(d)(2)(B) should be 8, not 12, which would result in a
TOL of 13 and an advisory guideline range of 15-21 months.
While probation responded to these objections in the final
PSR, the advisory guideline range remained the same in the
final PSR and the government and Santos ultimately agreed
with the calculations contained in the PSR, including the
12-level increase. See Docket Nos. 24, 22.
sentencing hearing was held on June 15, 2016. Both Santos and
the government submitted sentencing memoranda. Santos was
represented by Charlie McGinty of the Federal Public
Defender's Office. McGinty did not contest the guideline
sentencing range as calculated in the PSR and the Court
adopted those calculations. The government recommended a
sentence of 27 months, the low end of the advisory guideline
range as calculated in the PSR. McGinty requested a variance
by recommending a sentence of 6 months, significantly below
the low end of the guideline range. McGinty argued that
Santos had been in unbroken federal custody for eleven
months, six of which was for an unrelated state sentence and
unavailable as credit for the instance offense. As of the
date of sentencing, Santos had spent five months in custody
for the illegal reentry case. Docket No. 24, PSR.
Court adopted the PSR guidelines calculations but granted a
variance and sentenced Defendant to 18 months'
imprisonment. In granting the variance, the Court reasoned
that the 12-level increase in offense level overstated the
seriousness of Santos' first drug conviction where he
received a suspended sentence and which occurred when he was
seventeen years old. See Docket No. 28, Statement of
Reasons, section VI (C).
did not file a notice of appeal in this case. On November 18,
2016, Santos filed this pro se motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. Docket No. 29.
claims his attorney's failure to argue for a
non-guidelines sentence under the application of the
“Fast Track” program implicates the Sixth
Amendment right to effective assistance of counsel. To
succeed on an ineffective assistance of counsel claim, the
petitioner must establish that (1) counsel's
representation fell below “an objective standard of
reasonableness, ” and (2) a reasonable probability
exists that, “but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” United States v. De La Cruz, 514
F.3d 121, 140 (1st Cir. 2008) (citing Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984)). “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Review of counsel's
performance is “highly deferential” and subject
to “a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance.” Id. at 689. A
“defendant's failure to satisfy one prong of the
Strickland analysis obviates the need for a court to
consider the remaining prong.” Tevlin v.
Spencer, 621 F.3d 59, 66 (1st Cir. 2010).
argues that his counsel, McGinty, was ineffective in failing
to request and secure a plea under the “Fast
Track” program. In Santos' sentencing memorandum,
Docket No. 22, it is clear that McGinty contemplated the
“Fast Track” program: “Second, defendant
does not have the benefit of the Fast Track here, as the
government awards it only if a person executes a plea
agreement to a fixed sentence. This, of course, eliminates
consideration of 18 U.S.C. § 3553 factors, and thereby
discourages access to the discount.” Docket No. 22 at
3. Instead of entering into a Fast Track agreement, McGinty
argued for a below guidelines sentence of six months. McGinty
was successful in securing a below guidelines sentence of 18
Strickland, a defendant is prejudiced by his
counsel's deficient performance if ‘there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.'” Porter v. McCollum,
130 S.Ct. 447, 453 (2009) (citing Strickland, 466
U.S. at 694). In order to establish prejudice, petitioner
“must show that but for his counsel's deficiency,
there is a reasonable probability he would have received a
different sentence.” Id. at 453.
Santos had entered into a Fast Track agreement, he would have
been granted a two-level reduction in accordance with
U.S.S.G. § 5K3.1. With this two-level
reduction, his total offense level would have been 15 and his
criminal history category would have remained at II,
resulting in an advisory guideline range of 21-27 months. The