Faletogo v. United States of America, No. 2:2012cv01224 - Document 9 (W.D. Wash. 2013)
Court Description: ORDER denying petitioner's 2255 motion by Judge Ricardo S Martinez. (RS)cc Faletogo
Download PDF
<![CDATA[
Faletogo v. United States of America Doc. 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 BRIAN BRIMM FALETOGO, Petitioner, 11 12 13 14 CASE NO. C12-1224-RSM v. UNITED STATES OF AMERICA, ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY Respondent. 15 16 17 I. INTRODUCTION Before the Court is Petitioner’s 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct 18 Sentence. (Dkt. # 1). Brian Brimm Faletogo challenges the 78 month sentence imposed on him 19 by this Court. On September 23, 2009, Petitioner pled guilty to one count of a felon in 20 possession of a firearm. At sentencing, the Court applied a four-level enhancement to Faletogo’s 21 base offense level and imposed a sentence above the calculated Guideline range. Faletogo 22 appealed his conviction and sentence. In Faletogo’s appeal, his counsel argued that the Court 23 could not impose the four-level upward adjustment because it did not have clear and convincing 24 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 1 Dockets.Justia.com 1 evidence that Faletogo used the firearm in connection with another felony. The Ninth Circuit 2 denied his appeal and held that the four-level sentencing enhancement was warranted for using 3 the firearm in connection with the felony offense of assault. Petitioner timely brought this 4 petition challenging his sentence for ineffective assistance of counsel and lack of evidentiary 5 support for the four-level enhancement. After full consideration of the record and for the reasons 6 set forth below, Faletogo’s § 2255 Petition is DENIED. 7 II. BACKGROUND 8 Petitioner was prosecuted after his arrest resulting from investigation of a 9-1-1 call 9 reporting an assault with a firearm at the El Toro Apartments. After his indictment, defense 10 counsel entered into plea negotiations with the United States and Petitioner entered a plea of 11 guilty to one count of felon in possession of a firearm on September 23, 2009. Prior to 12 sentencing, Faletogo moved to withdraw his plea and the Court held an evidentiary hearing on 13 December 7, 2010. At the hearing, the Court concluded that Faletogo was cognizant of the 14 charge against him and of the consequences of entering a guilty plea. Dkt. # 5-1, p. 257. The 15 Court also concluded that he entered the plea of his own volition. The Court denied Faletogo’s 16 motion to withdraw his guilty plea. Id. at 258. 17 The Court held an evidentiary hearing during sentencing to determine whether to impose 18 a four-level base offense upward enhancement. Probation’s Presentence Report recommended 19 that the Court impose a four-level enhancement for the unlawful possession of the firearm in 20 connection with another felony pursuant to USSG § 2K2.1(b)(6)(B). The Presentence Report 21 recommended this enhancement for assault in the second degree based on the grounds of assault 22 with a deadly weapon under RCW 9A.36.021(1)(c). Faletogo objected to the upward adjustment 23 and argued that he did not use the firearm in connection with another felony because he did not 24 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 2 1 point the gun at his brother. Faletogo and his brother then testified that Faletogo did not point 2 the gun at his brother. However, based on the witnesses’ written statements and other relevant 3 evidence such as the 9-1-1 call transcript and the reporting officer’s testimony, the Court found 4 Faletogo and his brothers’ testimony at the hearing not credible. Dkt. # 5-1, pp. 90-92. Upon 5 reviewing the facts, exhibits, witness testimony, and evidence before it, the Court held that 6 Faletogo was subject to a four-level upward adjustment because Faletogo used the unlawfully 7 possessed firearm in connection with assault in the second degree when he pointed it at his 8 brother. 9 Next, the Court imposed Faletogo’s sentence. It found the Guideline range to be 51 to 63 10 months. The Court considered whether to depart from the guidelines based on traditional factors 11 as well as the USSG 3553(a) factors. The Court, disturbed by Faletogo’s long criminal history 12 and the violent nature of that criminal history, held that an upward departure from the Guideline 13 range of 51 to 63 months was warranted because Faletogo’s criminal history score was under14 represented. The Court found that if Faletogo’s criminal history score was increased by one 15 level, the range would be 63 to 78 months. The Court sentenced Faletogo to 78 months of 16 imprisonment. Dkt. # 5-1, pp. 110-118. 17 18 III. DISCUSSION Petitioner now brings a motion to vacate, set aside, or correct his sentence. A 28 U.S.C. § 19 2255 motion permits a federal prisoner, in custody, to collaterally challenge his sentence on the 20 grounds that it was imposed in violation of the Constitution or laws of the United States or that 21 the Court lacked jurisdiction to impose the sentence or that the sentence exceeded the maximum 22 authorized by law. Here, Petitioner challenges his sentence on the grounds that he received 23 ineffective assistance of counsel, and that the Court erred in imposing a sentence of 78 months of 24 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 3 1 imprisonment. The Court finds that Petitioner is not entitled to an evidentiary hearing in this 2 matter because the petition, files, and totality of the record conclusively demonstrate that 3 Faletogo is not entitled to relief. See United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004). 4 A. Ineffective Assistance of Counsel 5 Petitioner argues that he received ineffective assistance of counsel in two circumstances. 6 First, Petitioner asserts that he received ineffective assistance of counsel at his sentencing. 7 Second, Petitioner asserts that he received ineffective assistance of counsel for his appeal. 8 To establish a claim for ineffective assistance of counsel, Petitioner must prove (1) that 9 counsel's performance was deficient and, (2) that the deficient performance prejudiced the 10 defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to establish that counsel’s 11 performance was deficient, a petitioner must show that counsel's performance fell below an 12 objective standard of reasonableness. Id. at 688. There is a strong presumption that counsel was 13 within the range of reasonable assistance. Id. at 689. In order to establish that the counsel’s 14 performance prejudiced the defense, a petitioner “must show that there is a reasonable 15 probability that, but for counsel's unprofessional errors, the result of the proceeding would have 16 been different. A reasonable probability is a probability sufficient to undermine confidence in 17 the outcome.” Id. at 694. 18 Petitioner asserts that his counsel should have argued that the four-level enhancement 19 was not proper because the government did not prove the necessary elements of assault in the 20 second degree. Specifically, in his Reply brief, Petitioner argues that his counsel should have 21 argued that the government did not prove that Petitioner acted with intent or knowledge, and the 22 government did not show that “substantial bodily harm” occurred. 23 24 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 4 1 However, Petitioner misreads the elements of assault in the second degree. RCW 2 9A.36.021 sets forth seven separate grounds for assault in the second degree.1 The Court applied 3 the four-level enhancement based on just one of those grounds: assault with a deadly weapon. 4 RCW 9A.36.021(1)(c). Unlike some of the other grounds for assault in the second degree, 5 assault with a deadly weapon does not require a showing of intent, knowledge, or substantial 6 bodily harm. Therefore, Petitioner’s counsel at sentencing was well within the standard of 7 objective reasonableness when he failed to raise issues regarding intent, knowledge, or bodily 8 harm because the government did not need to prove these “elements.” 9 Additionally, a four-level enhancement under USSG § 2K2.1(b)(6)(B) applies in one of 10 two scenarios. Pursuant to USSG 2K2.1 (b)(6)(B), a four-level enhancement applies if the 11 12 1 (1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree: 13 14 (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or (b) Intentionally and unlawfully causes substantial bodily harm to an unborn quick child by 15 intentionally and unlawfully inflicting any injury upon the mother of such child; or 16 17 (c) Assaults another with a deadly weapon; or (d) With intent to inflict bodily harm, administers to or causes to be taken by another, poison or any other destructive or noxious substance; or 18 (e) With intent to commit a felony, assaults another; or 19 20 21 (f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or (g) Assaults another by strangulation or suffocation. (2)(a) Except as provided in (b) of this subsection, assault in the second degree is a class B felony. 22 (b) Assault in the second degree with a finding of sexual motivation under RCW 9.94A.835 or 23 13.40.135 is a class A felony. 24 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 5 1 defendant “used or possessed any firearm or ammunition in connection with another felony 2 offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason 3 to believe that it would be used or possessed in connection with another felony offense.” 4 Therefore, under the first scenario, the government must only prove that the defendant actually 5 used or possessed the firearm during, or in connection with, another felony offense. Under the 6 second scenario, the government must prove that the defendant possessed or transferred the 7 firearm to another individual with the intent, knowledge, or reasonable belief that the firearm 8 would be used by himself, or another, to commit a felony offense in the future. Thus, in contrast 9 to the second scenario, the government did not need to prove intent for application of the four10 level enhancement application under USSG § 2K2.1(b)(6)(B) because Faletogo possessed a 11 firearm in connection with a felony assault. 12 The Court found overwhelming evidence at the evidentiary hearing in support of the fact 13 that Faletogo “reached into his jacket, pulled out a silver or nickel plated pistol, racked or cycled 14 a round into the chamber, pointed the gun at his brother – at the chest of his brother, who was 15 sitting on the couch in the living room.” Dkt. # 5-1, p. 91. Based on this fact, the Court held that 16 clear and convincing evidence existed to support the four-level enhancement because Faletogo’s 17 conduct amounted to the felony offense of assault in the second degree. Dkt. # 5-1, pp. 91–93. 18 Because the four-level enhancement for using the firearm in assault in the second degree does 19 not require a showing of intent knowledge, or reasonable belief, counsel’s failure to raise the 20 issue of intent or knowledge at sentencing was neither unreasonable nor prejudicial. 21 Petitioner also asserts that his counsel should have argued that the four-level 22 enhancement does not apply because Petitioner’s actions regarding the firearm are a 23 misdemeanor rather than a felony. Petitioner cites RCW 9.41.230(1)(a), which states that a 24 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 6 1 person is guilty of a gross misdemeanor, when that person “[a]ims any firearm, whether loaded 2 or not, at or towards any human being.” However, RCW 9.41.230 only applies “[f]or conduct not 3 amounting to a violation of chapter 9A.36 RCW.” At the evidentiary hearing, the Court held that 4 Petitioner violated RCW 9A.36, assault in the second degree, when he pointed a loaded firearm 5 at his brother. Dkt. # 5-1, pp. at 91–93. Thus, counsel’s failure to raise RCW 9.41.230 was 6 neither unreasonable nor prejudicial because RCW 9.41.230 does not apply to a situation where a 7 defendant’s conduct amounts to the felony offense of assault in the second degree. 8 Petitioner also fails to show that he received ineffective counsel for his appeal. Petitioner 9 argues that his appellate counsel failed to argue that the facts, even as found by the Court, did not 10 establish that he committed the felony offense of assault in the second degree by clear and 11 convincing evidence. However, his appellate counsel did argue that “[t]there was not sufficient 12 evidence to support the district court’s finding that he used a gun in connection with an assault 13 by clear and convincing evidence.” Dkt. 5-1, pp. 12–15. Thus, appellate counsel’s representation 14 was neither unreasonable nor prejudicial because counsel did in fact make the argument on 15 appeal that Petitioner now presents in his motion to vacate sentencing. 16 In addition, Petitioner asserts that his counsel should have argued that the Court cannot 17 apply the four-level enhancement because Petitioner committed a misdemeanor rather than a 18 felony. According to Petitioner, the Court did not have clear and convincing evidence of the 19 felony crime of assault in the second degree; rather, the Court had clear and convincing evidence 20 of the gross misdemeanor crime of aiming a loaded or unloaded gun at another human being 21 under RCW 9.41.230(1)(a). Again, RCW 9.41.230(1)(a) only applies to conduct not in violation 22 of RCW 9A.36, however Petitioner violated chapter RCW 9A.36 when, as the Court held in the 23 evidentiary hearing, Petitioner assaulted his brother with the unlawfully possessed firearm. Dkt. 24 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 7 1 # 5-1, pp. 91–93. Even if the Court found clear and convincing evidence of a misdemeanor 2 crime, the Court still would find clear and convincing evidence of the felony crime of assault in 3 the second degree because the Court found overwhelming evidence that Faletogo pointed the 4 loaded and unlawfully possessed firearm at his brother. Dkt. # 5-1, pp. at 91–93. Thus, appellate 5 counsel’s failure to raise RCW 9.41.230(1)(a) was neither unreasonable nor prejudicial. 6 B. Base Offense Four-Level Enhancement 7 Pursuant to USSG 2K2.1(b)(6)(B), a four-level enhancement applies if the defendant 8 “used or possessed any firearm or ammunition in connection with another felony offense; or 9 possessed or transferred any firearm or ammunition with knowledge, intent, or reason to 10 believe that it would be used or possessed in connection with another felony offense.” Again, 11 there are two scenarios in which this enhancement applies. In the first scenario, if a defendant 12 actually uses the unlawfully possessed firearm in connection with another felony, then the 13 enhancement applies regardless of the defendant’s intent. In the second scenario, if the 14 defendant did not actually use the unlawfully possessed firearm in connection with another 15 felony but knew, intended to, or reasonably believed the firearm would be used in another 16 felony, then the enhancement applies if the government proves intent, knowledge, or 17 reasonable belief. 18 Here, the Court applied the enhancement under the first scenario because it found that 19 Petitioner actually assaulted his brother with the unlawfully possessed firearm. The Court did 20 not assume that Petitioner used the firearm to assault his brother. Rather, the Court held an 21 evidentiary hearing to make this determination. Upon finding the testimony at the evidentiary 22 hearing not credible, and after reviewing all of the facts and evidence, the Court concluded 23 that the Petitioner “reached into his jacket, pulled out a silver or nickel plated pistol, racked or 24 cycled a round into the chamber, pointed the gun at his brother – at the chest of his brother, ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 8 1 who was sitting on the couch in the living room.” Dkt. # 5-1, pp. at 91. Based on the totality 2 of the evidence, the Court held that clear and convincing evidence exists to support the 3 conclusion that defendant’s conduct amounted to felony assault in the second degree. Because 4 a showing of intent is not necessary for the application of the four-level enhancement in this 5 circumstance under USSG 2K2.1(b)(6)(B), the Court correctly applied the four-level 6 enhancement. 7 C. Certificate of Appealability 8 9 A petitioner seeking post-conviction relief under § 2255 may appeal a district court’s 10 dismissal of his federal habeas petition only after obtaining a certificate of appealability from a 11 district or circuit judge. A certificate of appealability may issue only where a petitioner has 12 made “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(3). 13 A petitioner satisfies this standard “by demonstrating that jurists of reason could disagree with 14 the district court’s resolution of his constitutional claims or that jurists could conclude the issues 15 presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 16 U.S. 322, 327 (2003). Under this standard, the Court concludes that petitioner is not entitled to a 17 certificate of appealability with respect to any of the claims in his § 2255 motion. IV. CONCLUSION 18 19 The Court, having considered Petitioner’s motion, Respondent’s response thereto, the 20 reply, and the remainder of the record, hereby finds and ORDERS: 21 (1) Petitioner’s 28 U.S.C. § 2255 motion (Dkt. #1) is hereby DENIED. 22 (2) In accordance with Rule 11 of the Rules Governing Section 2255 Proceedings for 23 the United States District Courts, a certificate of appealability is DENIED; and 24 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 9 1 (3) 2 and all counsel of record. 3 Dated this 3rd day of January 2013. The Clerk of the Court is directed to forward a copy of this Order to Petitioner 4 5 6 A 7 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY - 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
