Appeal from the United States District Court for the Northern District of Iowa.
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Ricardo Martinez-Salinas appeals the district court's*fn1 denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Martinez-Salinas stipulated to the application of the U.S.S.G. § 2D1.1(b)(1) enhancement for possession of a firearm but argues that his Sixth Amendment right to effective assistance of counsel was violated by his trial counsel's failure to explain that the application of the enhancement required proof of a connection between the firearm and his offenses. We reject Martinez-Salinas's argument and affirm the judgment of the district court.
Martinez-Salinas was indicted on one count of distributing methamphetamine within 1000 feet of an elementary school and one count of distributing cocaine within 1000 feet of a playground, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860(a). The government presented Martinez-Salinas with a proposed plea agreement providing that Martinez-Salinas would plead guilty to the two counts charged and that the government would not file additional drug-related charges against him. The plea agreement stated that a .380 caliber pistol was found at Martinez-Salinas's residence and contained the stipulation that the two-level § 2D1.1(b)(1) enhancement should be applied for his "possession of a firearm during the commission of the offenses." Martinez-Salinas signed the plea agreement after his trial counsel had it translated into Spanish and reviewed it with him in detail.
Martinez-Salinas subsequently pleaded guilty to the charged offenses. At his plea hearing, Martinez-Salinas affirmed that he had read the plea agreement and had asked his trial counsel about the provisions that he did not understand. Martinez-Salinas and his trial counsel testified that they had spent approximately an hour and a half to two hours reviewing the agreement.
Thereafter, Martinez-Salinas wrote a letter to the district court in which he complained about his trial counsel's representation and argued that the court should not apply the § 2D1.1(b)(1) enhancement because he did not use the firearm found at his residence in connection with his offenses. Additionally, Martinez-Salinas's trial counsel objected to the inclusion of the § 2D1.1(b)(1) enhancement in the presentence investigation report (PSR) "without seeking to diminish the intent of the plea agreement."
At his sentencing hearing, Martinez-Salinas stated that he had reviewed the PSR with his trial counsel and an interpreter and that he understood its contents. Martinez- Salinas requested that the district court adopt the plea agreement and proceed with sentencing, explaining that he did not "want to go to trial." Martinez-Salinas's trial counsel informed the court that he had discussed the § 2D1.1(b)(1) enhancement with Martinez-Salinas again that day and that Martinez-Salinas "indicated that he understood the nature of the law with respect to the use of a gun in connection with the charged offense." Applying the § 2D1.1(b)(1) enhancement, the court calculated Martinez-Salinas's Guidelines range as 78--97 months' imprisonment and sentenced him to concurrent 78-month terms on the two counts.
Martinez-Salinas appealed from the district court's judgment, arguing that the court committed plain error in applying the § 2D1.1(b)(1) enhancement and that he received ineffective assistance of counsel during the plea negotiations and at the plea hearing. We rejected Martinez-Salinas's § 2D1.1(b)(1) argument, concluding that he abandoned the issue by withdrawing his objection at sentencing. United States v. Martinez-Salinas, 110 Fed. Appx. 733, 733--34 (8th Cir. 2004) (unpublished per curiam). As to Martinez-Salinas's ineffective assistance of counsel claim, we stated that it "should be raised-if at all-in collateral proceedings, not on direct appeal." Id. at 734.
Martinez-Salinas then brought a pro se motion to vacate, set aside, or correct his sentence pursuant to § 2255, arguing that his trial counsel's failure to challenge the application of the § 2D1.1(b)(1) enhancement violated his Sixth Amendment right to effective assistance of counsel. Martinez-Salinas contends that effective counsel would have argued that the government failed to establish a nexus between the firearm and the criminal activity. In response, the government filed an affidavit in which Martinez-Salinas's trial counsel stated that he had explained to Martinez-Salinas prior to sentencing that if he "continued to maintain the objection to the [§ 2D1.1(b)(1)] enhancement, the United States Attorney's Office would consider that action to be a breach of the plea agreement." Martinez-Salinas's trial counsel stated that "Mr. Martinez-Salinas indicated that he did not want to abrogate the intent of the plea agreement" because "he hoped to receive substantial assistance motions in the future."
At the § 2255 hearing, Martinez-Salinas's trial counsel testified as follows:
I was aware at the very beginning of the case that there was an issue with the small caliber handgun . . . , but Mr. Martinez-Salinas very early on in the case indicated to me that he did not want a jury trial of this matter and basically gave me marching orders that I was to negotiate the best deal possible. And in my negotiations with the United States Attorney's Office, they were not willing to give up the gun enhancement in this particular case. However, we did receive some other concessions with regard to other charges that would not be filed. And also Mr. Martinez-Salinas was very concerned about whether or not ...