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Date: 11-19-2021
Case Style:
United States of America v. Leonard Walter
Case Number: 19-16056
Judge: Before: WALLACE and COLLINS, Circuit Judges, and RAKOFF,** District Judge.
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
On appeal from The United States District Court
for the Eastern District of California
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
San Francisco, CA - Criminal defense lawyer represented defendant charged with conspiring to possess, with intent to distribute, at least 50 grams of methamphetamine.
In February 2019, Walter was sentenced to the 10-year mandatory minimum
sentence based on his earlier plea of guilty to a single count of conspiring to
possess, with intent to distribute, at least 50 grams of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 846. See id. § 841(b)(1)(A)(viii) (providing
for 10-year mandatory minimum sentence). He alleges ineffective assistance of
counsel at sentencing due to his attorney’s failure to request so-called “safetyvalve” relief under 18 U.S.C. § 3553(f), which allows a district court to impose a
sentence below the statutory mandatory minimum if certain conditions are met.
Although Walter’s criminal history points had rendered him categorically
ineligible for safety-valve relief at the time of his guilty plea, the First Step Act—
enacted in December 2018, shortly before Walter’s sentencing—amended
§ 3553(f) in a way that eliminated that particular obstacle in Walter’s case.
Walter’s attorney, however, failed to recognize this change prior to his sentencing
and did not seek relief from the mandatory minimum at sentencing under the
amended version of § 3553(f).
In March 2019, Walter filed this § 2255 motion alleging that his attorney
had been ineffective in failing to seek safety-valve relief under the amended
version of § 3553(f). The district court referred the motion to a magistrate judge,
who recommended denying the motion. The district court denied Walter’s request
for an evidentiary hearing and adopted the magistrate judge’s findings and
recommendation. Walter timely appealed, and we issued a certificate of
appealability. We review a district court’s denial of § 2255 relief de novo, see
United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016), and its decision not to
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hold an evidentiary hearing for abuse of discretion, see United States v. Leonti, 326
F.3d 1111, 1116 (9th Cir. 2003).
Even assuming arguendo that Walter’s counsel performed deficiently in
failing to recognize the significance of the First Step Act’s amendment of
§ 3553(f), we conclude that Walter failed to make a sufficient showing that he was
prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The
First Step Act left intact § 3553(f)’s requirement that, to qualify for safety-valve
relief, “not later than the time of the sentencing hearing, the defendant [must]
truthfully provide[] to the Government all information and evidence the defendant
has concerning the offense or offenses that were part of the same course of conduct
or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5). The district court
correctly concluded that Walter failed to make a sufficient showing that, but for his
counsel’s error, he would have satisfied this requirement.
As an initial matter, the § 2255 motion and accompanying materials address
this crucial point in wholly conclusory terms that are devoid of supporting factual
detail. See Rule 2(b)(2), § 2255 Rules (motion must “state the facts supporting
each ground”); cf. Rule 4, § 2254 Rules, advis. comm. note (1976) (stating that, for
collateral attacks, “‘notice’ pleading is not sufficient, for the petition is expected to
state facts that point to a ‘real possibility of constitutional error’”). Although
Walter verified the motion under penalty of perjury, the motion simply stated that
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“he was and remains willing to satisfy” this safety-valve requirement. Neither his
motion nor its supporting materials set forth any sufficient facts bolstering this
conclusory assertion. As the magistrate judge noted, Walter provided no
supporting declaration of his own. Walter’s attorney provided a declaration stating
that when she discussed the safety valve with Walter prior to sentencing, Walter
expressed a willingness “to participate in a safety valve debriefing.” Willingness
to sit for a debriefing, however, does not establish, without more, that Walter
would have “truthfully provided to the Government all information and evidence
the defendant has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5)
(emphasis added).
This omission was especially significant because, as the magistrate judge
observed, the record in this case indicated that Walter “was in fact not willing to
‘tell all he knew’ prior to sentencing.” Specifically, at Walter’s sentencing, the
Government noted that Walter had declined to cooperate with the Government,
which would have allowed him to receive a below-mandatory-minimum sentence
under an entirely separate provision of law. See 18 U.S.C. § 3553(e). As the
Government explained, “given some of the atmospherics and his affiliation with a
certain [criminal] group that’s identified” throughout the presentence report,
Walter “chose to maintain his cred, and that’s his choice.” Defense counsel
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described Walter as having “chose[n] the path that he chose more out of safety
concerns for himself and his family.”
Walter contends that, unlike cooperation, which would have entailed
potentially testifying in court against others involved in the organization, a safetyvalve debriefing only requires disclosing to prosecutors all of the information that
he knows about the relevant criminal conduct. See United States v. Shrestha, 86
F.3d 935, 939 (9th Cir. 1996) (describing § 3553(f)(5) as a “tell all you can tell”
requirement that requires disclosing “all information at [the defendant’s] disposal
which is relevant to the offense, whether or not it is relevant or useful to the
government’s investigation”). Walter’s previous hesitation, however, underscores
the need for him to support his § 2555 motion with sufficient facts to show that he
would have made the thorough disclosures required by § 3553(f) prior to his
sentencing. He failed to do so.1
Outcome: Because the record confirms that Walter failed to demonstrate that his
counsel’s error prejudiced him at sentencing, the district court properly denied his
§ 2255 motion without an evidentiary hearing.
AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: