UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Franklyn Morillo

v. Case No. 20-cv-164-SM Opinion No.

United States of America

ORDER

Petitioner providently pled guilty to participating in a

drug distribution conspiracy. He and his wife operated a

substantial drug distribution business from their home in

Haverhill, Massachusetts. His plea was offered under a written

agreement with the government in which the parties stipulated

(Fed. R. Cr. P. 11(c)(1)(C)) that the Guidelines calculation in

his case would start with a base offense level of not less than

26 nor more than 30, depending on the drug weight attributable

to Petitioner.

The pre-sentence investigation report conservatively

estimated the attributable drug weight and the court determined

that the correct base offense level was 30, within the range

stipulated. Petitioner was sentenced, inter alia, to 168 months

in prison, a sentence at the low end of the applicable

Guidelines range. Petitioner appealed his sentence, seeking to

1 challenge enhancements under the Guidelines, as well as some

supervised release conditions imposed. The appeal was deemed

barred by the waiver provisions included in his written

agreement with the government. United States v. Morillo,

(1st Cir. 2018).

Petitioner now seeks similar relief, under

, on an ineffective assistance of counsel theory. He argues

that defense counsel 1) should have challenged the drug weight

attributable to him, as well as the leadership enhancement and a

premises or “stash house” enhancement, at sentencing; 2)

incorrectly advised him that he could be responsible for all

drugs involved in the conspiracy rather than just those

reasonably foreseeable to him; 3) failed to advise him of his

right to testify at sentencing, which he claims he would have

exercised; 4) failed to challenge conditions of supervised

release imposed; and, 5) generally failed to advise him that he

could plead guilty with no plea agreement and did not adequately

discuss the advantages and disadvantages of proceeding to trial

rather than pleading guilty.

Petitioner’s Burden - Ineffective Assistance

To prevail on an ineffective assistance of counsel claim, a

petitioner must show two things: First, that counsel’s

2 representation fell below an objective threshold of reasonable

care, and second, that he was prejudiced by that deficient

performance. See Strickland v. Washington,

(1984). The prejudice test is met only if Petitioner shows that

there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s

deficient representation.

In this case, Petitioner also seems to challenge the

providence of his guilty plea, saying he would not have pled

guilty if he had been advised by counsel of the advantages and

disadvantages of going to trial, or if he had been properly

advised that he would be held accountable under the Guidelines

only for those drug quantities involved in the conspiracy that

were reasonably foreseeable to him (instead of the full amount).

He further says that he would have negotiated an agreement that

did not include a waiver of his appellate rights had he been

told of that option. To the extent Petitioner challenges his

guilty plea, in order to meet the Strickland prejudice test, he

must demonstrate “a reasonable probability that but for

counsel’s errors, he would not have pled guilty and would have

insisted on going to trial.” Hill v. Lockhart,

(1984).

3 Discussion

Failure to Contest the Attributable Drug Quantities

Defense counsel’s acceptance of the drug quantities

estimated by the probation officer - and communicated in the

presentence investigation report, was not only reasonable and

well within the bounds of adequate representation, but, had

counsel “put the government to its proof,” as Petitioner claims

he should have done, that would have likely qualified as

ineffective assistance. It cannot be rationally disputed that

the evidence would easily have supported a much higher estimate

of drug quantities reasonably foreseeable to Petitioner. That

evidence included Petitioner’s own statements to police, and,

those captured on wiretaps, as well as the testimony of co-

conspirators. Petitioner was held accountable for only one year

of drug dealing, when he himself admitted that he had been

dealing for years, and, the attributed quantities during that

year were substantially less than quantities he himself had

acknowledged.

Had defense counsel made an issue of it, the government

would have been given the opportunity to present that evidence

and the resulting offense level would have been higher. Without

question, Petitioner would have lost the benefit of his plea

bargain, and would have been facing greater exposure to a much

4 longer sentence, which he likely would have received. Counsel’s

decision was wise, and, certainly no prejudice can be shown,

given the predictable adverse results for Petitioner had counsel

not accepted the conservative quantity estimates.

The Enhancements for Role in the Offense and Premises Use (“stash house”)

Defense counsel objected to each enhancement based on the

undisputed evidence and made appropriate legal arguments

supporting his objections. That his objections were not

sustained does not alter the fact that his representation fell

well within the bounds of reasonable and competent

representation. Petitioner’s claims that counsel should have

done more (call witnesses, call the Petitioner, etc.) are

unaccompanied by any proffer that would undermine in any way the

rulings on those enhancements. The record is clear and supports

both enhancements, and counsel vigorously and appropriately

challenged their imposition, within the bounds of reasonable

representation. Counsel was not ineffective in that regard, and

Petitioner cannot show prejudice, as he cannot demonstrate a

reasonable probability that but for counsel’s actions the

outcome would have been different.

5 Failure to Properly Advise of Right to Testify at Sentencing; Properly Advise About Drug Quantity Attribution; to Properly Advise of Possible Guilty Plea Without an Agreement Containing a Waiver of Appellate Rights or of the Advantages or Disadvantages of Going to Trial Rather Than Plead Guilty; and, Failure to Call Mitigation Witnesses

Petitioner asserts that defense counsel did not advise him

of his right to testify at sentencing. Had counsel so advised,

he says he would have exercised his right and testified in

opposition to the drug weights ascribed to him, the enhancement

for using his home to deal drugs, and the enhancement for his

supervisory role in the distribution conspiracy.

“A criminal defendant’s right to testify on his own behalf

– or, conversely, not to testify – is a critically important

right. Given the salience of the right, a defendant is entitled

to be fully briefed so that he may make an informed choice.”

Casiano-Jimenez v. United States,

(1st Cir.

2016). Crediting Petitioner’s assertions as true for the

purposes of resolving this issue, counsel’s failure to advise

Petitioner of both his right to testify and his right to make

the choice between testifying or not, would constitute

ineffective assistance.1

1 Obviously, no finding of fact is made in that regard as no hearing, at which defense counsel would have the opportunity to challenge the assertion of fact has been held.

6 Turning to the second part of the Strickland test,

prejudice, the record reveals none, and Petitioner demonstrates

none. Petitioner proffers nothing that he would have said or

offered had he been called as a witness that might show a

reasonable probability that, but for counsel’s failure, the

result of the sentencing proceeding would have been different –

“different” meaning a result more favorable to him.

As discussed earlier, the attributed drug weight was a

decidedly low estimate, but an estimate based almost wholly on

Petitioner’s own prior statements and admissions, as well as

wiretap evidence and co-conspirator testimony. Petitioner

proffers nothing but general denials that he would have

contributed had he been called to testify. But such self-

serving denials would hardly have proven effective in lowering

the quantity estimate or undermining either enhancement, given

the record. The evidence definitely militated against his

testifying; the government’s case was not “thin,” but

overwhelming with respect to drug quantities, Petitioner’s role

in the offense, and the use of Petitioner’s premises to

distribute drugs; Petitioner’s general denials would not have

“tipped the scales in his favor” or “turned the tide” with

respect to those sentencing issues. The record in this case

does offer a basis for believing that if Petitioner had been

7 properly advised he would not have testified. See generally,

Similarly, counsel’s failure to call

mitigation witnesses resulted in no determinable prejudice.

Petitioner proffers no testimony from potential mitigation

witnesses that might show a reasonable probability that the

outcome would have been different.

Petitioner bargained for and received a sentence resting on

a base offense level between 26 and 30. Indeed, he was

sentenced at the bottom of the applicable Guideline Sentencing

Range. He has not and cannot show prejudice, because his

argument offers nothing that would have supported either a

different ruling on the enhancements or the drug quantity, or

with respect to a departure or variance below the bottom-of-the-

range sentence imposed. Speculative potential mitigation

witness testimony not directed to the factors underlying

imposition of the challenged adjustments, or warranting a

departure or variance, does not support a conclusion that the

outcome would have been different had counsel called the

potential witnesses.

Petitioner says, on different grounds, that he would not

have pled guilty had defense counsel not erroneously told him

that he could be held accountable for all drugs involved in the

8 conspiracy, rather than just those drugs that were reasonably

foreseeable to him. Petitioner concedes, however, that counsel

did correct any misadvice on that score before Petitioner pled

guilty. Yet he went forward without comment and offered a fully

vetted and provident guilty plea under the agreement he had

signed, fully aware of the correct calculation method under the

Guidelines. And, he was sentenced according to the correct drug

quantity attribution. He was not prejudiced because the

attribution was very conservative – well below what the

government likely would have established if put to its proof.

Finally, Petitioner says he would not have pled guilty if

counsel had properly explained that he could plead guilty

without a plea agreement; and he would not have pled guilty

under the agreement negotiated with the government had he been

advised properly about the drug quantities attributable to him

(those that were reasonably foreseeable); and, perhaps, that he

would not have pled guilty had counsel fully described the

advantages and disadvantages of going to trial. Even accepting

Petitioner’s allegations of ineffective assistance in those

regards, he again fails to meet the Strickland prejudice test.

Of course, “[c]ourts should not upset a plea solely because

of post hoc assertions from a defendant about how he would have

9 pleaded but for his attorney’s deficiencies. Judges should

instead look to contemporaneous evidence to substantiate a

defendant’s expressed preferences.” Lee v. United States,

(2017).

Petitioner was facing overwhelming evidence of his guilt of

participating, in a supervisory role, in a major years-long drug

distribution conspiracy. He pled guilty under an agreement that

“offered sufficient advantages in limiting his exposure in the

face of strong evidence of guilt:”

The evidence included multiple witnesses against Morillo as well as co-conspirators he supervised. He also had a substantial criminal history and committed the present offense while on probation. In exchange for Morillo’s guilty plea, the government agreed to sentencing stipulations. First, Morillo’s base offense level would be no lower than twenty-six but no higher than thirty. Second, the government would not oppose a reduction in Morillo’s adjusted offense level based upon his acceptance of personal responsibility for the offense. But for the plea bargain, a much longer sentence could easily have been imposed and almost certainly would have been.

United States v. Morillo,

(1st Cir. 2018).

Under these circumstances it is inconceivable that

Petitioner would have seriously considered pleading guilty with

no agreement limiting his exposure to a substantially more

severe sentence, or that he would have elected to go to trial

10 after discussing the advantages and disadvantages of such a

course. Petitioner offers no rationale that is even remotely

plausible – there were no realistic advantages to going to

trial, and there were undeniable and substantially beneficial

reasons to plead guilty under the sentence-limiting agreement.

The contemporaneous circumstances do not substantiate

Petitioner’s post hoc assertions that he would not have pled

guilty.

It is equally inconceivable that Petitioner would have

refused the offered plea agreement had he known at the outset

that he would be held accountable under the Guidelines only for

those drugs and quantities involved in the conspiracy that were

reasonably foreseeable to him. He of course knew that before

the plea colloquy in court, where he testified under oath that

he fully understood the terms of the agreement and the

consequences of his plea, and he stated that he wished to waive

his rights to a trial and other important rights and plead

guilty. His motivation was clear – the agreement benefitted him

considerably by limiting what otherwise would have been a

substantially more severe sentence. And, he received a sentence

that was consistent with his bargain (base offense level 30),

and one at the low end of the applicable Guidelines range as

well.

11 Petitioner’s suggestion that, had he been better informed

by defense counsel, he would not have pled guilty unless the

plea agreement did not include a waiver of appellate rights, is

also implausible. While Petitioner suggests that would have

been the case, nothing in the record supports that post hoc

assertion. The waiver is standard practice for the government.

Defendant, had he asked, would have been so advised. There is

nothing peculiar or different about this case, and Petitioner

suggests nothing, that might have led the government to excise

that provision. And, those waiver provisions were fully

explored with the Petitioner during the plea hearing – he fully

understood them and their effect, and he chose to go forward

with his guilty plea. This argument, too, has all the earmarks

of one arising from a post-sentencing disappointment rather than

from a contemporaneous preference thwarted by ineffective

counsel.

Conditions of Supervised Release

Finally, defendant seeks to challenge the imposed terms of

supervised release, also on grounds that counsel provided

ineffective assistance. The conditions imposed are standard and

are consistent with those recommended by the Sentencing

Guidelines. See e.g.

. Counsel did not

12 fall below an objective threshold of reasonable care in not

objecting to the terms of supervised release, and, even if he

had, Petitioner suffered no prejudice as he is not yet on

supervised release. When released to the term of supervision,

he will have an opportunity to request changes to or relief from

the conditions imposed, in the context of the circumstances then

prevailing.

Conclusion

Petitioner, having failed to show that the sentence imposed

was not authorized by law or otherwise open to collateral

attack, or that there has been such a denial or infringement of

his constitutional rights so as to render the judgment unlawful,

the petition is hereby dismissed.

Rule 11 Certification

As Petitioner has not made a substantial showing of the

denial of a constitutional right, the court declines to issue a

certificate of appealability. However, Petitioner is free to

seek such a certificate from the United States Court of Appeals

for the First Circuit, located in Boston, Massachusetts.

13 SO ORDERED.

____________________________ Steven J. McAuliffe United States District November 30, 2020

cc: Franklyn Morillo, pro se Seth R. Aframe, Esq.

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