1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case No.: 17-cr-03399-DMS

12 Plaintiff,

ORDER DENYING DEFENDANT’S

13 v. MOTION TO VACATE, SET ASIDE

OR CORRECT SENTENCE UNDER

14 YEISON RENTERIA-VALENCIA, 28 U.S.C. § 2255 15 Defendant. 16 17 This case is before the court on Defendant Yeison Renteria-Valencia’s (“Defendant” 18 or “Renteria-Valencia”) motion to vacate, set aside, or correct his sentence for ineffective 19 assistance of counsel under 28 U.S.C. § 2255. After reviewing the parties’ briefs, the 20 record, and the relevant legal authority, the Court DENIES Defendant’s motion. 21 I. 22 BACKGROUND 23 On October 2, 2017, the United States Coast Guard (USCG) was alerted to a 24 suspicious vessel approximately 195 nautical miles southwest of the Nicaragua/Costa 25 Rica border. (Pre-Sentence Report (“PSR”), ECF No. 57, at ¶ 5.) Personnel aboard the 26 Cutter “Active” located a low profile vessel with four outboard engines and at least two 27 persons on board. (Id.) The USCG sent a crew to make contact with the vessel, and 28 located four individuals aboard, including Renteria-Valencia. (Id. at ¶ 6.) When the crew 1 arrived alongside the low profile vessel, they asked the crew who was “master” of the 2 vessel. (Id.) Neder Quinones-Vivas, a codefendant in this case, identified himself as the 3 master of the vessel, and informed the USCG that the vessel hailed from Colombia, three 4 of the crew were Colombian, and the fourth was Ecuadorian. (Id. at ¶ 7.) 5 Thereafter, the Coast Guard contacted the United States Department of State to 6 confirm the claim of Colombian nationality. (Ex. 2 to Opp’n at 2.) The Department of 7 State contacted the Colombian government, who replied that it could “neither confirm 8 nor refute the vessel’s registry or nationality.” (Id.) After the Coast Guard received word 9 of the Colombian response, they deemed the vessel “stateless” and boarded to conduct a 10 search pursuant to the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. 11 § 70502. (Id.) 12 The search revealed 69 bales of cocaine weighing approximately 1,500 kilograms, 13 and the crew of the low profile vessel was taken into custody. (PSR at ¶ 7.) On October 14 26, 2017, Renteria-Valencia was arraigned on an indictment charging him with 15 conspiracy to distribute cocaine on board a vessel and distribution of cocaine on board a 16 vessel, 46 U.S.C. §§ 70503 & 70506. (Indictment, ECF No. 1.) Renteria-Valencia was 17 also charged with aiding and abetting, in violation of 18 U.S.C. § 2. (Id.) Magistrate 18 Judge William Gallo appointed Robert C. Schlein as counsel to Renteria-Valencia. On 19 January 9, 2018, Renteria-Valencia entered a guilty plea to the Conspiracy charge, 20 pursuant to a written plea agreement. (ECF No. 48.) The Court sentenced Renteria- 21 Valencia to 87 months in custody, followed by 3 years supervised release, on April 26, 22 2018. (Judgment, ECF No. 81.) On April 16, 2020, Defendant, proceeding pro se, filed 23 this motion to vacate, set aside, or correct his sentence for ineffective assistance of 24 counsel. (ECF No. 104.) The Government filed an opposition, and Defendant filed a 25 reply. 26 II. 27 DISCUSSION 28 Under 28 U.S.C. § 2255, the Court may “vacate, set aside, or correct the sentence” 1 of a federal prisoner on “the ground that the sentence was imposed in violation of the 2 Constitution or laws of the United States, or that the court was without jurisdiction to 3 impose such sentence, or that the sentence was in excess of the maximum authorized by 4 law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). To warrant relief 5 under § 2255, a prisoner must allege a constitutional or jurisdictional error, or a 6 “fundamental defect which inherently results in a complete miscarriage of justice [or] an 7 omission inconsistent with the rudimentary demands of fair procedure.” United States v. 8 Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 9 (1962)). Unless “the motion and the files and records of the case conclusively show that 10 the prisoner is entitled to no relief,” the court must “grant a prompt hearing” on a § 2255 11 motion. 28 U.S.C. § 2255(b). However, “if the record refutes the applicant's factual 12 allegations or otherwise precludes habeas relief, a district court is not required to hold an 13 evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). 14 A. Waiver 15 As a preliminary matter, the Government contends Defendant’s motion is barred 16 because Defendant knowingly and voluntarily waived his right to appeal and collateral 17 attack pursuant to his plea agreement. (Opp’n at 10.) Accordingly, the Government 18 contends this waiver “forecloses [Defendant] from seeking any relief under 28 U.S.C. § 19 2255, with limited exceptions.” (Id.) To that end, the Government cites United States v. 20 Abarca, where the Ninth Circuit held a waiver of appeal cannot be circumvented by filing 21 a motion under § 2255. (Id.) (citing 985 F.2d 1012, 1014). In Abarca, the defendant filed 22 a consolidated appeal challenging his sentence and the district court’s denial of his § 2255 23 motion for modification of his sentence. 985 F.2d at 1013. There, the defendant waived 24 the right to appeal “any pretrial issues or sentencing issues” on condition that he received 25 a sentence that did not exceed the applicable guideline range. Id. at 1013. Because the 26 defendant’s motion was based on newly discovered exculpatory evidence related to his 27 involvement in the crimes, the Ninth Circuit concluded it was a “sentencing issue” barred 28 by the defendant’s waiver. Id. However, the court noted they did “not hold that 1 [defendant’s] waiver categorically forecloses him from bringing any section 2255 2 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of 3 waiver.” Id. at 1014. 4 Here, Defendant’s § 2255 motion is based on a claim of ineffective assistance of 5 counsel—an issue “not clearly contemplated by, and subject to, his plea agreement 6 waiver.” See id. Accordingly, Defendant’s motion is not barred and the Court can address 7 the merits of his claim. 8 B. Ineffective Assistance of Counsel 9 The Sixth Amendment guarantees criminal defendants the right to effective 10 assistance of counsel. United States v. Span, 75 F.3d 1383, 1386 (9th Cir. 1996) (citing 11 Strickland v. Washington, 466 U.S. 668 (1984)). Prisoners may raise Sixth Amendment 12 ineffective assistance of counsel claims on a Section 2255 motion. Id. (citing United States 13 v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). Because “the purpose of the effective 14 assistance guarantee . . . is simply to ensure that criminal defendants receive a fair trial,” 15 review of the effectiveness of defense counsel is “highly deferential.” Strickland, 466 U.S. 16 at 689; see Span, 75 F.3d at 1387 (citing United States v. Cochrane, 985 F.2d 1027, 1030 17 (9th Cir.1993)). 18 A prisoner asserting an ineffective assistance claim must specifically identify the 19 elements of counsel’s conduct he believes to be deficient. The Court must then determine 20 whether such conduct was “outside the wide range of professionally competent assistance” 21 expected of defense counsel. Strickland, 466 U.S. at 690. The defendant bears the burden 22 of overcoming a strong presumption that counsel “rendered adequate assistance.” Id. Even 23 if counsel’s actions are professionally unreasonable, an error by counsel does not warrant 24 relief unless it is prejudicial. See id. at 691. An error is prejudicial if there is “a reasonable 25 probability” that the error altered the result of the proceeding. Id. at 694; see also Lockhart 26 v. Fretwell, 506 U.S. 364, 372 (1993) (“Unreliability or unfairness does not result if the 27 ineffectiveness of counsel does not deprive the defendant of any substantive or procedural 28 right to which the law entitles him.”). “A reasonable probability is a probability sufficient 1 to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 2 Defendant alleges his counsel did not conduct an adequate pretrial/presentence 3 investigation, which resulted in counsel unreasonably failing to object to United States 4 jurisdiction under the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. 5 § 70502. (Mot. at 4.) Specifically, Defendant alleges his lawyer failed to object to the 6 Government’s assertion that the vessel at issue was a “vessel without nationality.” Such 7 vessels are subject to United States jurisdiction under 46 U.S.C. § 70502(c)(1)(A). (Id.) 8 Section 70502(d)(1)(C) defines a vessel without nationality as “a vessel aboard which the 9 master or individual in charge makes a claim of registry and for which the claimed nation 10 of registry does not affirmatively and unequivocally assert that the vessel is of its 11 nationality.” Under 46 U.S.C. § 70502(e)(3), a claim of nationality includes “a verbal 12 claim of nationality or registry by the master or individual in charge.” 13 Defendant argues counsel’s failure to make this objection was prejudicial because 14 he believes the jurisdictional challenge would have been successful. (Mot. at 4-5.) He 15 contends that the United States lacked jurisdiction over the vessel because the Coast Guard 16 boarding team failed to ask each individual aboard the boat for a claim of nationality after 17 the master verbally claimed Colombian nationality. (Id.) In support, Defendant cites 18 United States v. Guerro, 789 F. App'x 742 (11th Cir. 2019). In Guerro, the Eleventh 19 Circuit vacated a sentence in a similar case because “the Coast Guard never asked for the 20 individual in charge and never requested the defendants to make a claim of nationality or 21 registry for the vessel.” 789 F. App'x at 784. The circuit court found this was insufficient 22 to meet the jurisdictional requirements of 46 U.S.C. §§ 70502(d) and (e), since no one 23 aboard the vessel was afforded the opportunity to claim nationality. 24 The Government contends the instant case differs from Guerro because the Coast 25 Guard officer (through an interpreter) asked the men aboard the vessel, “Who is the 26 master?” and Quinones-Vivas raised his hand. (Opp’n at 11, 14.) The officer then asked 27 Quinones-Vivas, “Where is your vessel from?” to which Quinones-Vivas replied 28 “Colombia.” (Id. at 12.) The officer also indicated that the vessel did not have a 1 |/registration number. (/d.) After Quinones-Vivas verbally claimed Colombian nationality 2 || for the vessel, see 46 U.S.C. § 70502(e)(3), the United States Department of State contacted 3 ||Colombia to confirm the claim. However, the Colombian government “could neither 4 ||confirm nor refute the vessel’s registry or nationality.” (Opp’n at 11-12.) Thus, the instant 5 || case is distinguishable from Guerro. Based on the aforementioned facts, the Coast Guard 6 appropriately deemed Defendant’s vessel a “vessel without a nationality” pursuant to 46 7 U.S.C. §§ 70502(c)(1)(A), (d)(1)(C). 8 II. 9 CONCLUSION 10 Once the master of the vessel asserted Colombian nationality and the Colombian 11 || government did not “affirmatively and unequivocally” confirm his claim, the vessel was 12 ||deemed stateless pursuant to 46 U.S.C. § 70502(d)(1)(C). Under 46 U.S.C. § 13 || 70502(c)(1)(A), stateless vessels are subject to United States jurisdiction. Because any 14 || objection to United States jurisdiction under 46 U.S.C. § 70502 could not have succeeded 15 if raised, Defendant cannot meet his burden of showing that his attorney’s decision 16 || not to raise the objection “undermine[s] confidence in the outcome.” Strickland, 466 U.S. 17 694. Accordingly, Defendant has not suffered any prejudice because of his counsel’s 18 ||decision.! Defendant’s motion to vacate, set aside, or correct his sentence under 28 U.S.C. 19 || § 2255 is therefore DENIED. 20 || IT IS SO ORDERED. 21 ||Dated: August 13, 2020 9 ns my. L4\ Hon. Dana M. Sabraw 23 United States District Judge 24 25

27 The Court “need not determine whether counsel's performance was deficient . . . [i]f it is 28 easier to dispose of [the] ineffectiveness claim on the ground of lack of sufficient prejudice.” Strickland, 466 U.S. at 697.