USA v. Agustin et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.
ADAM BOGEMA,
Defendant-Petitioner.
Cr. No. 16-00451 JMS (03)
Civ. No. 21-00159 JMS
ORDER (1) DENYING MOTION
UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A
PERSON IN FEDERAL
CUSTODY, ECF NO. 304; AND
(2) DENYING CERTIFICATE OF
APPEALABILTY
ORDER (1) DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY, ECF NO. 304; AND (2) DENYING CERTIFICATE OF
APPEALABILITY
I. INTRODUCTION
Currently before the court is Defendant-Petitioner Adam Bogema’s
(“Bogema” or “Defendant”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody (“Petition” or “§ 2255
Motion”). For the reasons discussed below, the court DENIES the Petition and
DENIES a Certificate of Appealability.
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II. BACKGROUND
A. 	Factual Background
Bogema was indicted by a federal grand jury on July 13, 2016 for one
count of conspiracy to distribute and possess with intent to distribute 50 grams or
more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846 (Count 1); and three counts of attempted possession with intent to
distribute 50 grams or more of methamphetamine in violation of 18 U.S.C. § 2 and
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Counts 2, 3, and 4). Amended
Presentence Investigation Report (“PSR”) ¶¶ 1-2, ECF No. 263 at PageID # 1488.1
On May 5, 2017, Bogema pled guilty pursuant to a plea agreement to Count 1 of
the Indictment. ECF Nos. 125, 128.
In a letter postmarked July 17, 2017, Bogema filed a pro se Motion to
Withdraw Plea and Dismiss Counsel. ECF No. 156. Also on July 17, 2017,
Bogema’s then-counsel filed a Motion to Withdraw as Attorney. ECF No. 151.
On July 25, 2017, the court granted the Motion to Withdraw and directed that new
counsel be appointed. ECF No. 157. That same day, the court denied Bogema’s
Motion to Withdraw Plea and Dismiss Counsel, finding that the dismissal of
1 For administrative purposes, the § 2255 Motion was filed both in the underlying
criminal matter, Cr. No. 16-00451 JMS (03), and in a separate civil matter, Civ. No. 21-00159
JMS. All references to filings in this order are to the docket in the criminal matter.
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counsel issue was moot and that Bogema, after consultation with his new counsel,
could file a new motion to withdraw plea. ECF No. 158.
On July 26, 2017, Attorney Marcus B. Sierra (“Sierra”) was appointed
to represent Bogema. ECF No. 161. After Sierra’s appointment, Bogema filed a
new Motion to Withdraw Plea, ECF No. 188, which the court granted on
September 20, 2017, ECF No. 200. On September 22, 2017, after consultation
with Sierra, Bogema pled guilty without a plea agreement to Counts 1 through 4 of
the Indictment. ECF No. 202; ECF No. 244 at PageID # 1327.
On June 12, 2018, Bogema was sentenced to a term of 300 months
imprisonment to be followed by a five-year term of supervised release. ECF Nos.
262, 264.2 The conviction and sentence were affirmed on appeal on June 8, 2020.
ECF No. 282.
Bogema now contends that Sierra provided constitutionally
ineffective assistance during sentencing. ECF No. 304. Bogema raises three
grounds of ineffective assistance of counsel, alleging that Sierra failed to (1) seek a
downward departure based on Bogema’s mental and emotional condition and
diminished capacity pursuant to United States Sentencing Commission Guidelines
2 Bogema’s Total Offense Level 35, Criminal History Category VI, resulted in a
Guideline range of 292 to 365 months. ECF No. 265 at PageID # 1542. The court imposed a
sentence of 300 months (concurrent as to all counts) to run concurrently with any future sentence
imposed in Bogema’s three other pending cases. ECF No. 264 at PageID # 1537.
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(“Guidelines”) §§ 5H1.3 (“Mental and Emotional Condition”) and 5K2.13
(“Diminished Capacity”); (2) seek a variance pursuant to 18 U.S.C. § 3553(a)(1)
based on Bogema’s mental and emotional conditions, educational efforts, and
family support; and (3) challenge the Guideline’s drug quantity table as
unreasonable and not based on empirical data. Id. at PageID ## 2405-11.
B. 	Procedural Background
Bogema filed the instant Petition on March 12, 2021.3 ECF No. 304.
The United States filed a Response on April 29, 2021. ECF No. 307. Bogema
filed an optional Reply on May 14, 2021. ECF No. 308. The court determines that
the Petition is timely filed. See 28 U.S.C. § 2255(f).
III. STANDARD OF REVIEW
The court’s review is governed by 28 U.S.C. § 2255(a), which
provides:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which
3 The Petition is deemed filed on the date Bogema gave it to prison officials for
mailing to the court. See Houston v. Lack, 487 U.S. 266, 276 (1988) (explaining prison mailbox
rule); Douglas v. Noelle, 567 F.3d 1103, 1108-09 (9th Cir. 2009). Here, the Petition is dated
March 12, 2021 and postmarked March 23, 2021. ECF No. 304 at PageID # 2397; ECF No.
304-4 (envelope). For purposes of this Motion, the court assumes that Bogema gave the Petition
to prison officials for mailing on March 12, 2021.
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imposed the sentence to vacate, set aside or correct the
sentence.
A court may deny a § 2255 motion if “it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief.” R. 4(b) Governing § 2255 Proceedings in the U.S.
Dist. Cts. A court need not hold an evidentiary hearing if the allegations are
“palpably incredible” or “patently frivolous or false” or if the issues can be
conclusively decided based on the evidence in the record. Blackledge v. Allison,
431 U.S. 63, 76 (1977) (internal quotation and citation omitted); see also United
States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (explaining that a “district
court has discretion to deny an evidentiary hearing on a § 2255 claim where the
files and records conclusively show that the movant is not entitled to relief”).
Conclusory statements in a § 2255 motion are insufficient to require a hearing.
United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). A petitioner must
allege specific facts that, if true, would entitle the petitioner to relief. See United
States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (citing United States v.
McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)).
Because the court concludes that the § 2255 Motion can be decided
conclusively on the basis of the existing record, the court will not hold an
evidentiary hearing. The court decides the § 2255 Motion without a hearing
pursuant to Local Rule 7.1(d).
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IV. ANALYSIS
As set forth above, Bogema raises three grounds of ineffective
assistance, alleging Sierra failed to (1) seek a downward departure based on mental
and emotional condition and diminished capacity pursuant to Guidelines §§ 5H1.3
(“Mental and Emotional Condition”) and 5K2.13 (“Diminished Capacity”); (2)
seek a variance pursuant to 18 U.S.C. § 3553(a)(1) based on Bogema’s mental and
emotional conditions, educational efforts, and family support; and (3) challenge the
Guidelines drug quantity table as unreasonable and not based on empirical data.
ECF No. 304 at PageID ## 2405-11.
The court begins by setting forth the applicable legal standards, and
then addresses each argument in turn.
A. 	Legal Standard for Ineffective Assistance of Counsel Claims
The Sixth Amendment guarantees the right to effective assistance of
counsel at all critical stages of a criminal proceeding, including sentencing. See
United States v. Gonzalez, 113 F.3d 1026, 1029 (9th Cir. 1997). To prevail on an
ineffective assistance of counsel claim, a petitioner must show that (1) counsel’s
representation fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687-88 (1984). That is, the petitioner must show not only that there was a
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deficiency, but that the deficiency was prejudicial. Id. at 692; see also Wiggins v.
Smith, 539 U.S. 510, 521 (2003) (“An ineffective assistance claim has two
components: A petitioner must show that counsel’s performance was deficient, and
that the deficiency prejudiced the defense.”). “[I]t is unnecessary to consider the
prejudice prong of Strickland if the petitioner cannot even establish incompetence
under the first prong.” Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998)
(citing Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995)).
Counsel “is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. at 690-91. Conclusory allegations of
ineffective assistance of counsel made with no factual or legal explanation fall well
short of stating a cognizable claim for ineffective assistance of counsel. See
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“[P]resentation of conclusory
allegations unsupported by specifics is subject to summary dismissal.”).
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B. 	Bogema’s Allegations of Ineffective Assistance
1. 	Failure to Seek a Downward Departure Based on Mental and
Emotional Condition and Diminished Capacity
Bogema contends that Sierra rendered ineffective assistance by failing
to seek a downward departure based on Guidelines policy statements §§ 5H1.34
(Mental and Emotional Condition) and 5K2.135 (Diminished Capacity). ECF No.
304 at PageID # 2405. More specifically, Bogema argues that a downward
departure pursuant to both §§ 5H1.3 and 5K2.13 was merited because of his
“lifelong struggle with debilitating social anxiety, hyperactivity, impulse control
and 25 year struggle self-medicating with methamphetamine, a cycle that began
and is tied to being medicated starting at age 6 with ADHD medication.” Id. at
PageID # 2408. Bogema further alleges that he “has supported his
methamphetamine addiction with drug dealing,” ECF No. 304 at PageID # 2411,
4 Guideline § 5H1.3 provides that “[m]ental and emotional conditions may be relevant in
determining whether a departure is warranted, if such conditions, individually or in combination
with other offender characteristics, are present to an unusual degree and distinguish the case
from the typical cases covered by the [G]uidelines.”
5 Guideline § 5K2.13 provides that “[a] downward departure may be warranted if (1) the
defendant committed the offense while suffering from a significantly reduced mental capacity;
and (2) the significantly reduced mental capacity contributed substantially to the commission of
the offense.”
Guideline § 5K2.13 also states that a departure is not authorized if “(1) the significantly
reduced mental the significantly reduced mental capacity was caused by the voluntary use of
drugs or other intoxicants; (2) the facts and circumstances of the defendant's offense indicate a
need to protect the public because the offense involved actual violence or a serious threat of
violence; (3) the defendant’s criminal history indicates a need to incarcerate the defendant to
protect the public; or (4) the defendant has been convicted of an offense under chapter 71, 109A,
110, or 117, of title 18, United States Code.”
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and cites to his diagnoses of schizophrenia, bipolar disorder, agoraphobia, and
antisocial personality disorder, id. at PageID ## 2399-400, 2409; ECF No. 308 at
PageID # 2514. These arguments lack merit.
First, “[a]fter [United States v.] Booker, [543 U.S. 220 (2005),] the
scheme of downward and upward departure has been replaced by the requirement
that judges impose a reasonable sentence.” United States v. Tankersley, 537 F.3d
1100, 1113 (9th Cir. 2008) (citing United States v. Mohamed, 459 F.3d 979, 986
(9th Cir. 2006)). Thus, post-Booker, the Ninth Circuit reviews a “district court’s
application of the advisory sentencing guidelines only insofar as they do not
involve departures . . . [and any] downward or upward departure [is treated as] an
exercise of post-Booker discretion to sentence a defendant . . . [that] is subject to a
unitary review for reasonableness, no matter how the district court styles its
sentencing decision.” Mohamed, 459 F.3d at 987. Stated another way, “framing
of the issue as one about ‘departures’ has been rendered obsolete . . . [because]
after Booker what is at stake is the reasonableness of the sentence, not the
correctness of the ‘departures.’” United States v. Johnson, 427 F.3d 423, 426 (7th
Cir. 2005).6
6 The Ninth Circuit has adopted the Seventh Circuit’s post-Booker framework for the
consideration of downward departures and variances. See, e.g., Mohamed, 459 F.3d at 987
(“[The Ninth Circuit] side[s] with the Seventh Circuit and . . . elect[s] to review the district
court’s application of the advisory sentencing guidelines only insofar as they do not involve
departures.”); see also United States v. Vasquez-Cruz, 692 F.3d 1001, 1008 (9th Cir. 2012)
(continued…)
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Under Mohamed, Sierra had no obligation to seek a downward
departure at sentencing based on Guidelines §§ 5H1.3 and 5K2.13, and his choice
not to do so was not objectively unreasonable. Stated differently, under the Ninth
Circuit’s unitary standard, Sierra should appropriately raise any issues involving
mental health or diminished capacity as a request for a variance (which, as
described below, he did), not a Guidelines departure. Thus, Bogema’s downward
departure argument does not meet the first prong of the Strickland test.
But even if Sierra should have sought downward departure
specifically based on Guidelines §§ 5H1.3 and 5K2.13—which, to be clear, he did
not have to do—neither guideline applies in Bogema’s case. As to his mental and
emotional condition argument, § 5H1.3 provides that departure based on mental
and emotional condition may be warranted when those conditions are “present to
an unusual degree and distinguish the case from typical cases covered by the
[G]uidelines.” Bogema asserts that because he “suffers from three separate and
(“[The Ninth Circuit’s] reading of Mohamed accords with the Seventh Circuit’s . . . Mohamed
followed the Seventh Circuit’s approach in declining to review departures for procedural
correctness.”); see Johnson, 427 F.3d at 426 (“Now, instead of employing the pre-Booker
terminology for departures, we have moved toward characterizing sentences as either fitting
within the advisory guidelines range or not.”).
Nevertheless, district courts continue to “tak[e] genuine guidance from all the Guidelines,
including their departure provisions, as required under the amended [Guideline § 1B1.1].”
Vasquez-Cruz, 692 F.3d at 1008 (citing United States v. Guyton, 636 F.3d 316, 319 n.2 (7th Cir.
2011)); see also Mohamed, 459 F.3d at 987.
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distinct conditions,” his “is not a ‘typical case covered by the guidelines.’” ECF
No. 308 at PageID # 2514.
But having several diagnosed conditions does not, without more
evidence, demonstrate that any condition is present to an unusual degree. As
Bogema himself explains, “[m]any people with schizophrenia have other mental
disorders that often include[] an anxiety disorder,” suggesting that his is not an
unusual situation. Id. at PageID # 2516.
Further, the record demonstrates that Bogema’s mental and emotional
condition is not so unusual that it is beyond control. That is, when properly
medicated, Bogema’s mental and emotional condition is stabilized. See, e.g., ECF
No. 304-1 at PageID ## 2417-18 (“When he is not on prescription medications and
then self-medicates, the ‘Evil Ways’ surface. Conversely, when he is on those
prescription medications, a kind, respectful man that prays with his children and
family emerges.”). Yet Bogema has admitted to a history of choosing to self-
medicate with illicit substances rather than to remain on a prescribed medication
regimen. See, e.g., PSR ¶ 96, ECF No. 263 at PageID # 1513 (“He recalled seeing
a therapist regularly during [high school]; however, he only took medication when
it suited him, and he often self-medicated these feelings with illicit substances.”);
PSR ¶ 101, id. at PageID # 1514 (“The defendant . . . was stable while taking anti-
psychotic medications [and] felt comfortable enough . . . to increase his
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independence. He over-estimated the stability of his mental health and went off
his medications. Thereafter, he relapsed on controlled substances[.]”).
Although Bogema’s long-standing mental and emotional health
challenges are not to be minimized, see, e.g., PSR ¶¶ 96-101, id. at PageID
## 1513-14; ECF No. 304-1 at PageID ## 2417-18; ECF No. 304-2 at PageID
## 2425, 2428-42, he offers nothing more than his own conclusory assertions to
show that he has suffered from any mental or emotional condition to an unusual
degree as required by § 5H1.3. This is not enough.
And as for diminished capacity, Bogema’s arguments fail as well.
Section 5K2.13 applies where “a defendant suffers from significantly reduced
mental capacity that contributed to the commission of his or her offense.” United
States v. Cantu, 12 F.3d 1506, 1509 (9th Cir. 1993) (citing United States
Sentencing Commission, Guidelines Manual, § 5K2.13 p.s. (Nov. 1991)). “[T]o
qualify for a diminished capacity departure, a defendant must show an inability ‘to
process information or to reason.’” United States v. Withers, 100 F.3d 1142, 1148
(4th Cir. 1996) (quoting United States v. Goossens, 84 F.3d 697, 701 (4th Cir.
1996)).
Clearly, Bogema was not suffering from diminished capacity during
the commission of the instant offenses. He carried out a sophisticated drug
distribution operation, arranging and engaging in complex drug transactions that
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involved drug procurement, transport, and payment among numerous individuals
for more than one year. PSR ¶¶ 7, 19-20, 25, 30, ECF No. 263 at PageID ## 1488-
89, 1491-93; see also ECF No. 271 at PageID # 1588. Bogema himself explained
to the court that he engaged in this criminal conduct because he was “blinded by
greed.” ECF No. 243-1 at PageID # 1309; ECF No. 304-1 at PageID # 2414.
Additionally, on at least two occasions, Bogema determined that
certain shipments of methamphetamine were not of an approved quality. PSR
¶¶ 20, 22, ECF No. 263 at PageID ## 1491-92. And in one of those instances,
Bogema arranged for an additional shipment of higher quality methamphetamine
based on the poor quality of a particular shipment. PSR ¶ 20, id. at PageID # 1491.
An individual with the type of diminished capacity contemplated by § 5K2.13
could not have done this. See, e.g., Withers, 100 F.3d at 1148 (finding that a
downward departure based on diminished capacity was not warranted in a case in
which a defendant “was fully capable of following a complex set of instructions to
transport heroin successfully into the United States”).
Thus, in addition to there being no reason for Sierra to have sought a
downward departure based on Guidelines §§ 5H1.3 or 5K2.13 (as opposed to
seeking a variance), Bogema’s conclusory allegations have not shown “that
counsel made errors so serious that [he] was not functioning as the ‘counsel’
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guaranteed [to Petitioner] by the Sixth Amendment.” Strickland, 466 U.S. at 687.
Bogema’s § 2255 arguments based on §§ 5H1.3 and 5K2.13 necessarily fail.
2. 	Failure to Seek a Variance Pursuant to 18 U.S.C.
§ 3553(a)(1)
Closely related to the prior ground, Bogema next contends that Sierra
failed to seek a variance pursuant to 18 U.S.C. § 3553(a)(1) based on Bogema’s
mental and emotional conditions, educational efforts, and family support, thus
providing ineffective assistance. ECF No. 304 at PageID # 2405. But this
argument is simply wrong—Sierra did seek a variance based on these factors.
Despite the sophistication of Defendant’s criminal conduct and his
serious prior criminal history, Sierra nevertheless repeatedly argued that Bogema’s
mental and emotional conditions warranted a variance below the advisory
Guideline range. First, Sierra’s Sentencing Memorandum set forth a number of
arguments in support of a variance to a sentence of 188 months from the Guideline
range of 292 to 365 months. ECF No. 242 at PageID # 1295. In part, Sierra
argued for a variance based on Bogema’s “long history of mental illnesses that [he]
has been battling for most of his lifetime, e.g., ADHD, bi-polar disorder and
schizophrenia,” which “were a primary cause of his involvement in the use and
distribution of methamphetamine.” ECF No. 242 at PageID # 1297. In further
support, Sierra provided a letter from Defendant’s psychotherapist in support of a
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sentence well below the Guidelines based on Bogema’s “mental and emotional
issues.” ECF No. 242-5 at PageID # 1306.
Next, at the sentencing hearing, Sierra asked the court to consider that
Bogema has “a mental condition which he had since a juvenile” that “weaken[s]
his resistance to certain temptations [and] puts him in a position where his social
skills are impaired.” ECF No. 271 at PageID # 1572. And although characterizing
Bogema as “not dealing with a full deck of cards” was inelegant, Sierra argued that
Bogema’s mental and emotional conditions are “well-documented,” and while
“[i]t’s not an excuse, . . . it is something to consider” and “we can’t ignore it.” Id.
Bogema further asserts that Sierra did not “consult a professional
either to testify or provide declaration as to the effects of reduced mental capacity
and criminality.” ECF No. 308 at PageID # 2515. There is no requirement for the
presentation of a mental health provider’s assessment in arguing for a sentencing
variance based on § 3553(a). Regardless, as stated above, Sierra included in his
Sentencing Statement a letter from a former psychotherapist who treated Bogema
in 2012. ECF No. 242 at PageID # 1296; ECF No. 242-5 at PageID # 1306
(“[Bogema] was eager . . . to get help for the mental and emotional issues from
which he suffered,” and “he and society would benefit from him getting
specialized treatment for his mental illness.”). To the extent that Sierra failed to
retain a mental health professional to provide direct testimony or otherwise attest
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to “the effects of reduced mental capacity and criminality” for the purposes of
sentencing, this failure does not amount to ineffective assistance.
Additionally, Bogema’s PSR—reviewed carefully by the court—
summarized in detail his mental and emotional history and conditions, as well his
substance abuse history. PSR ¶¶ 86-87, 92, 96-107, ECF No. 263 at PageID
## 1511-15. The court accepted these facts as true and considered them when
imposing Bogema’s sentence. ECF No. 271 at PageID # 1577 (court stating that “I
do adopt . . . the factual findings in the [PSR] as my own”); id. at PageID # 1591
(“[T]here’s some mitigating factors here, the mental health issues, and Mr. Sierra
went through that and it’s in the report . . . I do certainly take that into account.”);
id. at PageID # 1593 (specifying that the court believed a “substantial sentence
under [§ 3553](a)(2) [was] required,” even after “taking into account the mitigating
circumstances, including mental health”).7 And the prison sentence imposed by
the court—300 months—fell at the lower end of the Guideline range of 292 to 365
months, see ECF No. 263 at PageID # 1528, despite numerous aggravating factors,
including Bogema’s substantial criminal history, his leadership role, and the
significant amount of drugs involved in his criminal conduct, see, e.g., id. at
PageID # 1531; ECF No. 271 at PageID # 1588.
7 The Government, too, raised Bogema’s mental health as a mitigating factor for the court
to consider during sentencing. ECF No. 271 at PageID # 1581 (“And as stated by his counsel,
Mr. Bogema has been diagnosed with mental health issues.”).
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Bogema further argues that his “family support and his significant
efforts while incarcerated to pursue his education are positive and mitigating
factors.” ECF No. 304 at PageID # 2411. But Sierra did, in fact, raise Bogema’s
educational strides and familial support as mitigating factors during sentencing.
ECF No. 271 at PageID ## 1573-74. These, too, were considered and accepted by
the court. Id. at PageID # 1591 (“Now I do understand there’s some mitigating
factors here . . . I do understand that you’ve taken courses at FDC and have the
support of family.”).
In short, the record plainly reflects that Sierra argued for a variance
based on Bogema’s mental and emotional conditions, educational pursuits, and
family support. Thus, there is no basis for finding that performance of counsel in
this regard was deficient. See Strickland, 466 U.S. at 687-88.
3. 	Failure to Challenge the Court’s Reliance on § 2D1.1 of the
Guidelines Regarding Drug Quantity
Finally, Bogema claims that his counsel’s failure to challenge the
court’s alleged “over reliance” on the Guidelines drug quantity table constitutes a
violation of his constitutional right to effective assistance. ECF No. 304 at PageID
# 2405. This claim, too, lacks merit.
Bogema argues that because the Guidelines drug quantity table is not
based on empirical data, his base offense level—a calculation determined by drug
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quantity—should not be presumed reasonable. Id. at PageID # 2406.8 But Sierra’s
failure to challenge, on policy grounds, any reliance of the court on § 2D1.1 does
not indicate a failure to provide reasonably effective assistance, particularly in light
of the totality of Bogema’s criminal conduct and history. Bogema’s policy
argument plainly ignores many of the salient facts of his case—specifically his
leadership role in the criminal conduct for which he was sentenced as well as his
very lengthy criminal history—that distinguish his from another drug case that may
warrant consideration of a § 2D1.1 policy disagreement. It also ignores the court’s
obligation pursuant to § 3553(a)’s parsimony clause to impose a sentence that is
“sufficient, but not greater than necessary” to comply with the goals of sentencing.
And, here, a sentence of 300 months was appropriate under the parsimony clause.
To be clear, the court understands that § 2D1.1 is not based on
empirical data. That is, “in developing the Guidelines sentences for drug-
trafficking offenses,” the United States Sentencing Commission developed a drug
quantity table based on drug type and weight and “did not use [the same] empirical
approach” that it used when developing the rest of the Guidelines. Kimbrough v.
United States, 552 U.S. 85, 96 (2007). Given this non-empirical approach, district
8 In his Petition, Bogema states that he “doesn’t disagree with the ‘accuracy’ of the level
38 starting base offense level” based on the substantial quantity of methamphetamine trafficked
in his case. ECF No. 304 at PageID # 2406. In fact, Bogema’s base offense level was 34. PSR
¶ 45, ECF No. 263 at PageID # 1496.
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courts have discretion to vary downward based on a policy disagreement with the
drug quantity table. Id. at 109-10; see, e.g., United States v. Dafang, Cr. No. 14-
00722 JMS, ECF No. 22 at PageID ## 132-359 (varying downward based on a
policy disagreement with the Guidelines drug quantity table and explaining that
this authority is derived from Kimbrough); United States v. Ibarra-Sandoval, 265
F. Supp. 3d 1249, 1253-54 (D.N.M. 2017). But discretion is not a mandate; simply
because a court may vary downward based on a policy disagreement, it does not
follow that it must.
Here, the court rightfully relied on § 3553(a)’s parsimony clause to
reach its sentence:
So when I take a look at all the factors and the parsimony
clause, I do think a significant sentence in this case is
required given the nature and circumstances of the
offense conduct and the defendant’s role in this
conspiracy, looking at his criminal history and his
inability to comply with conditions of parole and
probation, and his just continually committing crimes and
taking into account the mitigating circumstances,
including the mental health . . . . You know, the
parsimony clause calls for a sentence that is sufficient,
but not greater than necessary—has to be sufficient, but
not greater than necessary to comply with the purposes of
sentencing—of [§3553](a)(2), and here I just believe a
significant sentence is required.
9 This court has long been aware of its discretion to vary downward based on a § 2D1.1
policy disagreement, and, in Dafang, it did so by varying downward two levels based on a policy
disagreement as it pertains to the 500 to 1 MDMA sentencing ratio. Id.
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ECF No. 271 at PageID ## 1593-94. In short, while the court could have varied
downward based on a policy disagreement with § 2D1.1, it chose not to, given its
consideration of Bogema’s criminal conduct, criminal history, and the interests of
justice in the aggregate.
Likewise, Sierra’s decision to concentrate on the § 3553(a) factors,
rather than raise a policy-based objection to § 2D1.1, was not objectively
unreasonable. See, e.g., Gustave v. United States, 627 F.2d 901, 904 (9th Cir.
1980) (“Mere criticism of a tactic or strategy is not in itself sufficient to support a
charge of inadequate representation.”). Sierra’s representation of Bogema during
the sentencing phase of the underlying matter clearly fell “within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689; see Siripongs,
133 F.3d at 736 (“[T]he relevant inquiry under Strickland is not what defense
counsel could have pursued, but rather whether the choices made by defense
counsel were reasonable.”); see also Chandler v. United States, 218 F.3d 1305,
1319 (11th Cir. 2000) (“Counsel is not required to present every nonfrivolous
defense[.]”). Accordingly, the court denies Bogema’s Petition as to his § 2D1.1
claim.
///
///
///
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V. CERTIFICATE OF APPEALABILITY
In denying the Petition, the court must also address whether Bogema
should be granted a certificate of appealability (“COA”). See R. 11(a) Governing
§ 2255 Proceedings in the U.S. Dist. Cts. (providing that “[t]he district court must
issue or deny a certificate of appealability when it enters a final order adverse to
the applicant”). A COA may issue only if the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
“The standard for a certificate of appealability is lenient.” Hayward v.
Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc), overruled on other grounds
by Swarthout v. Cooke, 562 U.S. 216 (2011). The petitioner is required to
demonstrate only “that reasonable jurists could debate the district court’s
resolution or that the issues are adequate to deserve encouragement to proceed
further.” Id. (internal quotations and citation omitted); see also Slack v. McDaniel,
529 U.S. 473, 484 (2000) (holding that a certificate of appealability should issue
only if a prisoner shows, among other things, “that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling”). The
standard “requires something more than the absence of frivolity but something less
than a merits determination.” Hayward, 603 F.3d at 553.
The court carefully reviewed Bogema’s assertions and gave him every
benefit by liberally construing them. Bogema had the opportunity to explain his
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assertion in response to the Government’s Opposition and evidence. Based on the
above analysis, and considering all of the allegations in Bogema’s Petition and
Response, the court find that reasonable jurists could not find the court’s rulings
debatable. Accordingly, a COA is DENIED.
VI. CONCLUSION
For the foregoing reasons, the court DENIES Bogema’s § 2255
Motion and DENIES a Certificate of Appealability. The Clerk of Court is directed
to close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 22, 2021.
United States v. Bogema, Cr. No. 16-00451 JMS (03), Civ. No. 21-00159 JMS, Order (1)
Denying Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody, ECF No. 304; and (2) Denying Certificate of Appealability
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
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