The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Torres was charged in a two-count indictment with violations of
21 U.S.C. §§ 841(a)(1) and 846. Following a "blind" plea of
guilty to both counts of the indictment, the district court
sentenced Torres to 120 months' imprisonment, the mandatory
minimum sentence. The district court considered whether Torres
was eligible for the safety valve provision and found that he was
not because of his criminal history. Torres appealed the
sentence. Torres's appellate counsel filed an Anders brief,
contending that there were no nonfrivolous issues for appeal. The
Seventh Circuit affirmed Torres's sentence, specifically
rejecting Torres's claim that the district court judge could have
applied the safety valve provision in his case.
Torres has since filed this motion to vacate, set aside, or
correct his sentence, pursuant to 28 U.S.C. § 2255. Torres
alleges that he received ineffective assistance of counsel for
the following three reasons: his trial and/or appellate counsel
(1) failed to properly object to and appeal the district court's
alleged abuse of discretion in not recognizing its authority to
apply the safety valve provision, (2) failed to argue for a
diminished capacity downward departure, and (3) failed to argue
for the application of an intervening amendment to the sentencing
guidelines that, Torres argues, would have led to a reduction in
his base offense level. To establish that he received ineffective assistance of
counsel, Torres must show that his attorney's representation fell
below an objective standard of reasonableness and that but for
his attorney's errors, there was a reasonable probability that
the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 694-94 (1984).
Furthermore, the defendant must overcome a strong presumption
that his counsel rendered reasonably effective assistance under
the totality of the circumstances. United States v. Moralez,
964 F.2d 677, 683 (7th Cir. 1992).
First, Torres argues that his trial and appellate counsel were
ineffective for failing to properly object to and appeal the
district court's alleged abuse of discretion in not recognizing
its authority to sentence him pursuant to the safety valve
provision, 18 U.S.C. § 3553 (f)(1) and USSG § 5C1.2. The Seventh
Circuit has held that a district court may not depart downward to
make a defendant eligible for the safety valve. United States v.
Vega-Montano, 341 F.3d 615 (7th Cir. 2003). Here, the
district court did what it was required to do and found that it
could not depart downward for the purpose of making Torres
eligible for the safety valve provision. Since this was clearly
the result required by the law, neither Torres's trial counsel
nor his appellate counsel can be faulted for failing to argue
that the district court's decision was erroneous.
Second, Torres argues that his appellate counsel was
ineffective because he did not appeal the trial counsel's failure
to argue for a diminished capacity downward departure. This
argument, however, is a non-starter. A defendant can receive a
sentence below the mandatory minimum only if the government makes
a motion for departure based on the defendant's substantial
cooperation, see 18 U.S.C. § 3553(e); USSG § 5K1.1, or if the
defendant qualifies for sentencing under the safety valve
provision. See 18 U.S.C. 3553(f); USSG § 5C1.2. Since Torres was
sentenced under the mandatory minimum and since he was not
eligible for the safety valve and did not cooperate with the government, his sentence
would not have been affected by a downward departure in the
guideline range for diminished capacity. Torres's counsel cannot
be faulted for failing to pursue an initial motion or an appeal
that would be futile.
Finally, Torres argues that his appellate counsel was
ineffective for failing to appeal an intervening amendment to the
sentencing guidelines that, according to Torres, requires his
base offense level to be lowered pursuant to § 2D1.1(a)(3). This
argument fails for two reasons: the amendment could not be
applied retroactively and, as was stated above, Torres would not
have benefitted from a change in the guideline range. USSG §
2D1.1(a)(3) was amended in 2002 to provide a "cap" of level 30
for narcotics offenders who received adjustments pursuant to USSG
§ 3B1.2. See Amendment 640, USSG Supp. to App. C. at 264 (2002).
According to USSG § 1B1.10, Amendment 640 is not to be applied
retroactively. Thus, Torres's counsel was not ineffective in not
seeking the retroactive application of the amendment since it was
clearly not applicable. Even if the amendment could have been
applied retroactively, it would still not have altered Torres's
sentence. Torres was sentenced under the ten year mandatory
minimum and would have received the ten years regardless of his
For the reasons stated herein, Torres's Motion to Vacate, Set
Aside, or Correct His Sentence is DENIED.
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