United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
Timothy L. Brooks Judge.
pending before the Court is the Report and Recommendation
("R&R") (Doc. 83) filed in this case on April
29, 2016, by the Honorable Mark E. Ford, United States
Magistrate Judge for the Western District of Arkansas. On May
18, 2016, Defendant/Petitioner Jonni Diaz timely filed
Objections (Doc. 85) to the R&R, and the Court undertook
a de novo review of the record pursuant to 28 U.S.C.
§ 636(b)(1)(C). For the reasons explained herein, the
Court will ADOPT the R&R in its entirety and DENY Ms.
Diaz's Motion to Vacate (Doc. 58) under 28 U.S.C. §
Diaz pleaded guilty on August 13, 2014, to Count Two of the
Indictment (Doc. 13), charging her with aiding and abetting
the distribution of methamphetamine. She appeared with her
Court-appointed counsel, Ms. Sammi Wilmoth, for the change of
plea hearing. Then, on January 27, 2015, Ms. Diaz and her
counsel appeared before the Court for sentencing. Prior to
the sentencing hearing, Ms. Wilmoth had, on behalf of Ms.
Diaz, filed objections to the Presentence Investigation
Report ("PSR") in order to correct certain factual
details. However, none of these objections affected the
Guideline range of imprisonment, which was determined to be
168 to 210 months.
the sentencing hearing, Ms. Diaz stated on the record that
she was satisfied with her counsel's representation. She
was sentenced below the Guidelines to 120 months
imprisonment. See Doc. 50, p. 2. She also was
ordered to serve the statutory minimum term of supervised
release of three years and pay a below-the-Guidelines fine of
$1, 000.00, along with the mandatory special assessment of
$100.00. Id. at p. 3. The Statement of Reasons
explains that the Court varied downward in imposing Ms.
Diaz's sentence because "[r]elatively speaking, the
defendant's role in comparison to that of her husband was
less, and she should receive a lesser term of
imprisonment." See Doc. 51, p. 3. Ms. Diaz did
not appeal the Judgment but instead filed a Motion to Vacate
(Doc. 58) on September 25, 2015, arguing that her counsel was
ineffective for failing to seek a sentencing reduction for
minor or mitigating role, as provided at U.S.S.G. §
Diaz contends that "[a]t bottom, [she] believed she had
no other choice but to take the plea offer and her attorney
assured her she would get some kind of reduction based on her
minor role in the offense." (Doc. 58, pp. 18-19). Below,
the Court addresses Ms. Diaz's objections in turn.
Diaz's first objection is that Magistrate Judge Ford
failed to give her pleadings the appropriate level of
consideration due to a pro se litigant. This
objection is overruled, as the R&R clearly acknowledges
the fact that Ms. Diaz is a pro se litigant, and it
appropriately interprets her pleadings liberally.
second objection is that her attorney had "the burden of
proving that she was entitled to a mitigating role
adjustment" and failed to meet that burden. (Doc. 85, p.
2). Ms. Diaz believes she was plainly among the least
culpable of those involved in the drug enterprise at issue in
her case, and that she was entitled to a Guideline role
reduction because of her lack of knowledge of the scope and
structure of the enterprise and of the activities of others
in the enterprise. A defendant "faces a heavy
burden" to establish ineffective assistance of counsel
pursuant to § 2255. DeRoo v. United States, 223
F.3d 919, 925 (8th Cir. 2000). To establish such a claim, Ms.
Diaz must satisfy the two-part test set forth in
Strickland v. Washington, 466 U.S. 668 (1984).
First, under the "deficient performance" component,
she must show that her counsel "made errors so serious
that counsel was not functioning as the 'counsel'
guaranteed [her] by the Sixth Amendment." Id.
at 687. That showing can be made by demonstrating that
counsel's performance "fell below an objective
standard of reasonableness." Wiggins v. Smith,
539 U.S. 510, 521 (2003) (internal citations omitted).
Second, under the "prejudice" component, she must
demonstrate that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
Id. at 694.
respect to the first prong of the Strickland test,
Ms. Diaz has failed to establish that it was objectively
unreasonable for her counsel to choose not to seek a
mitigating or minor role adjustment under the Guidelines and
instead argue in favor of a downward variance for her role in
the offense. Considering the facts Ms. Diaz pleaded guilty to
at her change of plea hearing,  it was reasonable for her counsel
to pursue the course of action she did. Although Ms. Diaz
maintains that she was entitled to a mitigating or minor role
adjustment, as in her view, she was "[v]ery clearly ...
not a drug dealer" and would not have faced criminal
charges "had she not been in the car" during the
transaction that prompted her arrest, see Doc. 58,
p. 20, these claims are contrary to the facts she admitted in
her plea agreement. First, Ms. Diaz admitted to aiding and
abetting in the distribution of methamphemine in Northwest
Arkansas-not simply by participating in a single transaction,
but by "occasionally accompan[ying] Andres Diaz during
drug transactions that he conducted with other individuals,
" sometimes "help[ing] in some of the transactions
by carrying the methamphetamine to the drug deals and once
accepting] money from another individual to pay for
methamphetamine." (Doc. 29, p. 3). Second, the Eighth
Circuit has held that even if Ms. Diaz's involvement in
the drug enterprise could be characterized as that of a drug
mule or courier, this "does not necessarily entitle
[her] to a 'minor participant' reduction."
United States v. Snoddy, 139 F.3d 1224, 1228 (8th
Cir. 1998) (reviewing other Eighth Circuit cases in which the
Court upheld the denial of minor or mitigating role
reductions). Accordingly, the Court finds that, under the
facts of Ms. Diaz's case, it was not objectively
unreasonable for her attorney to make the tactical decision
to advocate in favor of a downward variance, rather than a
mitigating or minor role reduction.
Ms. Diaz has satisfied the first Strickland prong,
she fails to meet the second prong, as she cannot show she
was prejudiced by her counsel's decision. According to
the PSR, Ms. Diaz was held accountable for her knowledge of
and/or personal involvement in a number of different drug
transactions. (Doc. 38, p. 8). She was also held accountable
for a quantity of methamphetamine found in her residence,
which she shared with her husband. Id. Based on the
total drug quantity attributable to Ms. Diaz, her base
offense level was determined to be a 36. See Doc.
38, pp. 9. Her criminal history placed her in category III.
Id. at p. 12. After receiving a three-level decrease
in her base offense level for acceptance of responsibility,
Ms. Diaz's Guideline range of imprisonment was 168-210
months. Based on her counsel's oral argument at
sentencing that Ms. Diaz was entitled to a downward variance
due to her role in the offense, her sentence was
significantly reduced to 120 months-equivalent to a
three-level decrease of 48 months. Under these facts, Ms.
Diaz cannot show that her counsel's decision-making
actually prejudiced her. The objection as to ineffective
assistance is therefore overruled.
Diaz's third and final objection is that she was entitled
to an evidentiary hearing on her Motion to Vacate, but the
Magistrate Judge refused to give her one. This objection is
overruled, as the Court agrees with Judge Ford that all
claims were capable of full and fair evaluation based on the
existing record alone.
reasons stated herein, the Report and Recommendation (Doc.
83) is APPROVED AND ADOPTED IN ITS ENTIRETY, and
Defendant/Petitioner Jonni Diaz's Motion to Vacate (Doc.