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United States v. Portillo

United States District Court, N.D. Ohio

November 7, 2017


          OPINION & ORDER [RESOLVING DOCS. 71, 73, 76, 77]


         Defendant Juan Portillo filed a motion to vacate his sentence under 28 U.S.C. § 2255.[1]Following a guilty jury verdict, the Court sentenced Portillo to a mandatory minimum of twenty years in prison because of his previous felony drug conviction.

         Portillo alleges he received ineffective assistance of counsel because his counsel failed to advise him about a sentencing enhancement possibility if he rejected a plea agreement. Portillo also alleges that his counsel failed to object to the government's improper vouching of its testifying trial witnesses.

         For the following reasons, the Court DENIES Portillo's motion.

         I. BACKGROUND

         On August 12, 2014, a federal grand jury returned a one-count indictment against Portillo for conspiring to possess with intent to distribute cocaine and heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846.[2]

         On September 25, 2014, government counsel e-mailed Portillo's counsel, Jeffrey Hastings, about a potential plea agreement.[3] In the e-mail, the government offered to recommend an 87 to 108 month sentence if Portillo pleaded guilty to responsibility for three kilograms of cocaine and 600 grams of heroin.[4] More than a week later, Hastings replied that Portillo “has not given [him] authority to enter into plea negotiations with the Government and is insisting on a trial.”[5]

         On October 7, 2014, government counsel sent Hastings an unsolicited draft plea agreement.[6] The draft plea agreement would allow Portillo to plead to a reduced drug quantity under 21 U.S.C. § 841(b)(1)(B), instead of under 21 U.S.C. § 841(b)(1)(A) for which he was indicted.[7] Under this draft plea agreement, Portillo would be subject to a five-year mandatory minimum.[8]

         The draft plea agreement also included a provision entitled “Statutory Enhancement Notice.”[9] As part of this draft agreement, if Portillo pled guilty, the government would agree not to file a 21 U.S.C. § 851 notice of Portillo's prior felony drug conviction.[10] The agreement noted that if the government filed the § 851 notice, Portillo's penalty would be enhanced to a mandatory minimum of ten years.[11] The ten-year sentence was seemingly based on the drug quantity for which Portillo would plead responsibility and not the quantity for which he was indicted. The proposed Rule 11(c)(1)(B) plea agreement acknowledged that the sentencing judge would independently determine Guidelines calculations and the sentencing judge was not required to accept the plea agreement's drug quantity.[12]

         Portillo rejected the plea agreement.

         On October 27, 2014, the government filed the § 851 notice seeking an enhanced statutory penalty based on Portillo's prior felony drug conviction in Wisconsin.[13] The notice indicated that Portillo would be subject to a twenty-year minimum sentence should he be found guilty for the indictment count.[14]

         On the first scheduled trial day, the government stated to the Court that it had offered an initial plea proposal to Portillo and that Portillo rejected it.[15] The Court asked Portillo whether Portillo had been advised about the plea agreement:

The COURT: Mr. Portillo, were you advised that there had been some offer of a plea agreement?
THE DEFENDANT (through interpreter): Yes.
THE COURT: And did you reject the idea of entering a guilty plea?
THE DEFENDANT (through interpreter): Yes.[16]

         At trial, cooperating witnesses, Alexander Abreu and Richard Price, testified against Portillo. During direct examination, government counsel elicited testimony concerning their cooperation:

Q: And early on, after you were charged, did you cooperate with the Government and sit down with us and tell us what you did and who you were doing it with?
A (Price): Yes, I did.
Q: Okay. And did -- did the Government give you some consideration for your cooperation?
A (Price): Yes, sir.
Q: So the time that you're serving is less than it would have been had you not cooperated; is that correct?
A (Price): Yes.
Q All right. And you have a plea agreement which spells that out, which allows for you to be sentenced by Judge Gwin to less time; is that correct?
A (Price): Yes, sir.
Q: All right. Does the plea agreement also require that you continue to cooperate and provide truthful testimony if called upon to do so by the Government?
A (Price): Yes, sir.[17]
Q: I'll rephrase the question. As part of the plea agreement, are you required or did you agree to testify if the Government asked you?
A (Abreu): Yes.
Q: Did you agree to provide truthful testimony?
A (Abreu): Yes.
Q: Were you already sentenced in this case?
A (Abreu): Yes.
Q: And are you currently serving a sentence in federal prison?
A (Abreu): Yes.
Q When you were sentenced, did you receive a lower sentence because you agreed to cooperate with the Government?
A (Abreu): Yes.[18]

         On November 4, 2014, a jury returned a guilty verdict on count one of the indictment.[19]On February 3, 2015, the Court imposed a 240-month statutory minimum sentence.[20]

         Portillo appealed his conviction to the Sixth Circuit, which affirmed the judgment on November 18, 2015.[21] The Supreme Court denied Portillo's writ of certiorari on March 28, 2016.[22]

         On March 28, 2017, Portillo filed a timely Motion to Vacate under 28 U.S.C. § 2255.[23]With his motion, Portillo argues that he had received ineffective assistance of counsel because Hastings had failed to (1) advise him of the consequences of a § 851 notice and (2) object to the government's improper vouching of its cooperating testifying witnesses.[24] Portillo also sought an evidentiary hearing concerning Hastings' advice about the § 851 enhancement issue.[25]

         On October 27, 2017, the Court held an evidentiary hearing on the § 851 enhancement issue.[26]

         At the evidentiary hearing, Hastings testified that he had communicated with Portillo about a sentencing enhancement if Portillo rejected a plea agreement and the government consequently filed the § 851 notice.[27]

         Hastings' timesheet indicates that he met with the government on October 7, 2014 regarding Portillo's case.[28] His notes indicate that he had discussed with the government the possibility of the § 851 enhancement filing. His notes reflect that the § 851 enhancement would require Portillo to serve at least twenty years.[29] Hastings met with Portillo in person on October 9, 2014. Hastings' timesheets support this.[30] At the final pretrial conference on October 10, 2014, Hastings stated that Portillo had not authorized him to negotiate a plea agreement.[31] Portillo was present when Hastings stated that Portillo refused to negotiate any plea agreement.

         Almost two years after his conviction and on June 15, 2016, Portillo sent Hastings a letter claiming Hastings never informed him that he could receive 240 months of imprisonment if he testified.[32]

         At the hearing, Portillo testified that Hastings never informed him about the § 851 enhancement.[33] He testified he believed he would face at most thirteen years should he reject the plea agreement.[34] Portillo was sixty-six years old when he considered the plea agreement and had heart problems since he was 10 years old, had been hospitalized numerous times due to heart issues and saw his cardiologist quarterly.[35]

         Hastings and Portillo both testified that they did not have a Spanish language interpreter during their in-person meetings.[36] Hastings testified that Portillo had a basic command of English and would seek clarification if he did not understand.[37]

         Although Portillo testified he did not understand the legal discussions with Hastings, he acknowledged that he would always seek clarification if he did not understand.[38] Portillo also testified that he could understand English numbers discussions.[39] At his arraignment, Portillo told the Court that he sufficiently understood English and said he did not need an interpreter.[40]


         Title 28 United States Code Section 2255 gives a federal prisoner post-conviction means of collaterally attacking a conviction or sentence that violates federal law. Section 2255 provides four grounds upon which a federal prisoner may challenge his conviction or sentence:

1) That the sentence was imposed in violation of the Constitution or laws of ...

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