                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

        v.                                                Criminal No. 04cr355-03 (CKK)
                                                             (Civil Action No. 12-1553)
 CARLOS AGUIAR,

    Defendant.


                           MEMORANDUM OPINION & ORDER
                                  (May 19, 2015)

       Presently before the Court is Carlos Aguiar’s [875] Motion to Alter or Amend Judgment,

requesting that the Court alter or amend its judgment as set forth in its [862] Order and

accompanying [863] Memorandum Opinion denying Aguiar’s Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence. Upon a searching review of Aguiar’s motion, the relevant

legal authorities, and the record as a whole, the Court finds no grounds to disturb its previous

rulings as laid out in its [862] Order and accompanying [863] Memorandum Opinion of February

12, 2015, as well as its [868] Order and accompanying [869] Memorandum Opinion of February

27, 2015. Accordingly, the Court shall DENY Aguiar’s [875] Motion to Alter or Amend

Judgment. In addressing the instant motion, the Court has focused on the narrow issues raised by

Aguiar in the motion and shall not readdress the other issues discussed in its Memorandum

Opinions of February 12, 2015, and February 27, 2015.

       In his original § 2255 motion, Aguiar argued that the Court should set aside his conviction

and sentence because his trial and appellate counsel rendered him ineffective assistance by

allegedly: (1) failing to explain the sentencing consequences of rejecting a plea offer and

proceeding to trial; (2) failing to investigate and object to Aguiar’s family members being excluded
from the courtroom during jury selection, and failing to object to certain portions of voir dire taking

place in the jury room; (3) failing to challenge an alleged constructive amendment to the

indictment; (4) failing to raise a duplicity challenge to Counts IV and XI of the indictment; and (5)

failing to challenge the jury instruction and verdict form related to Counts IV and XI. On February

12, 2015, the Court addressed each of Aguiar’s claims in its [863] Memorandum Opinion and

found each to be without merit. As such, the Court entered an [862] Order denying Aguiar’s

Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence in its entirety.

       In the instant motion, Aguiar requests that the Court alter or amend its judgment denying

his § 2255 motion pursuant to Federal Rule of Civil Procedure 59(e). Rule 59(e) permits a party

to file “[a] motion to alter or amend a judgment” within “28 days after the entry of the judgment.”

Fed. R. Civ. P. 59(e). Motions under Rule 59(e) are “disfavored” and the moving party bears the

burden of establishing “extraordinary circumstances” warranting relief from a final judgment.

Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001). Rule 59(e) motions are

“discretionary and need not be granted unless the district court finds that there is an intervening

change of controlling law, the availability of new evidence, or the need to correct a clear error or

prevent manifest injustice.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal

quotation marks omitted). Rule 59(e) does not provide a vehicle “to relitigate old matters, or to

raise arguments or present evidence that could have been raised prior to the entry of judgment.”

Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting C. Wright & A. Miller,

Federal Practice and Procedure § 2810.1 (2d ed. 1995)).

       Aguiar argues that the Court should reconsider its decision with regard to his § 2255 motion

because the Court committed a clear error and abused its discretion in reaching its holding.

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Specifically, Aguiar argues that the Court erred by failing to apply the summary judgment standard

pursuant to Federal Rule of Civil Procedure 56 to his claims before denying his § 2255 motion.

Further, Aguiar asserts that the Court erred in addressing his ineffective assistance of counsel

claims by: (1) failing to consider the facts set forth in his Traverse related the government’s plea

offer that Aguiar rejected; (2) incorrectly concluding that the alleged courtroom closure was trivial;

and (3) misconstruing his argument related to the firearms admitted into evidence. Finally, Aguiar

argues that the Court prematurely decided not to issue a Certificate of Appealability. The Court

shall address each argument in turn.

       First, Aguiar argues that the Court applied the incorrect legal standard to its analysis of his

claims. Specifically, Aguiar asserts that the Court improperly failed to consider the confines of

Federal Rule of Civil Procedure 56, addressing motions for summary judgment. Aguiar argues

that “Rule 56 of the Federal Rules of Civil Procedure does not authorize a court to grant a summary

judgment motion with outstanding dispute of material facts involved and the Court’s determination

was made against uncontroverted facts by the United States that establishes counsel’s ineffective

assistance . . . .” Def.’s Mot. to Alter or Amend Judgment, at 2. As the United States Court of

Appeals for the Second Circuit has explained, “[t]he procedure for determining whether a hearing

[on a § 2255 motion] is necessary is in part analogous to, but in part different from, a summary

judgment proceeding.” Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009). Specifically,

the Second Circuit noted, “[A] district court need not assume the credibility of factual assertions

[in a § 2255 motion], as it would in civil cases, where the assertions are contradicted by the record

in the underlying proceeding.” Id. at 214.

       In addressing his § 2255 motion, the Court did accept all of Aguiar’s factual assertions as

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true for the purposes of its analysis. See Memo. Op. (Feb. 12, 2015), at 14 (accepting as true

Aguiar’s assertion that his trial counsel did not explain the sentencing implications of being

convicted of two violations of § 924(c) for the purposes of its analysis); id. at 21 (accepting as true

the sworn statements in the affidavits related to the alleged courtroom closure for the purposes of

its analysis); Memo. Op. (Feb. 27, 2015), at 4 (accepting as true Aguiar’s assertion that his trial

counsel never showed him the plea letter provided by the government for the purposes of its

analysis); id. at 7 (noting that even if Aguiar’s trial counsel failed to inform him that he would not

have had to cooperate to accept the government’s plea offer, the record establishes that Aguiar was

provided with this information during a hearing and still rejected the plea offer). Nevertheless,

relying on the record and the relevant legal authorities, the Court found each claim was without

merit. See Memo. Op. (Feb. 12, 2015), at 15 (finding that based on the record, Aguiar could not

establish that his trial counsel acted in an objectively unreasonable manner by failing to inform

him of the sentencing implications of violations to which he was not charged at the time that the

plea offer was extended and expired); id. at 24, 26 (finding that the alleged courtroom closure was

too trivial based on the relevant legal authority to amount to a Sixth Amendment violation); id. at

35 (rejecting Aguiar’s claim that his trial and appellate counsel improperly failed to object to a

constructive amendment to the indictment when the indictment alleged Aguiar’s use of both a

semiautomatic assault weapon and a machinegun); id. at 40-41 (finding that Aguiar’s argument

that his counsel should have challenged the alleged duplicity of Counts IV and XI was without

merit based on the language in the indictment, jury instructions, and verdict form); Memo. Op.

(Feb. 27, 2015), at 9 (“The Court cannot conclude that there is a reasonable probability that Aguiar

would have accepted the plea offer such that he was prejudiced by counsel’s alleged failures

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because he expressly rejected the plea offer in open court after being presented with the terms of

the offer and informed that the plea offer did not require his cooperation.”). Accordingly, the

Court shall not reconsider its ruling based on Aguiar’s argument that the Court should have applied

the summary judgment standard set forth in Federal Rule of Civil Procedure 56 because the Court

accepted the facts presented by Aguiar as true for the purposes of its analysis. However, in light

of the record and the relevant legal authorities, the Court found that Aguiar’s arguments were

without merit. As such, the Court shall not reconsider its decision to deny Aguiar’s claims in his

§ 2255 without an evidentiary hearing.

       Second, Aguiar argues that the Court erred by failing to consider a Traverse and

accompanying sworn declaration sent by him to the Court. The Court finds this argument is

without merit because it issued another Memorandum Opinion on February 27, 2015, addressing

the arguments raised in Aguiar’s Traverse and the facts set forth in the accompanying declaration.

Specifically, the Court noted that the Traverse was not considered by the Court in its earlier

Memorandum Opinion because the Traverse had been mistakenly forwarded by the Clerk’s Office

to the U.S. Probation Office rather than to the Court. The error was discovered after the Court

entered its ruling on Aguiar’s § 2255 motion. The Traverse was entered in ECF and the Court

issued a Memorandum Opinion treating the Traverse as a motion for reconsideration of its earlier

decision denying Aguiar’s § 2255 motion. In the Traverse, Aguiar raised three issues related his

trial counsel’s alleged failure to properly advise him regarding a plea offer that was extended to

and rejected by him. Specifically, Aguiar attached a sworn declaration indicating that his trial

counsel never showed him the plea letter filed by the government, that his counsel never advised

him that the plea offer would not have required him to cooperate with the government, and that he

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would have accepted the plea offer if he had fully understood the terms of the plea offer. See

Memo. Op. (Feb. 27, 2015), at 3, ECF No. [869]. Ultimately, the Court found that Aguiar could

not establish that he was prejudiced in any way by the alleged failures of his trial counsel as set

forth in his motion for reconsideration because he clearly was informed of the pertinent terms of

the plea offer on the record during a hearing and rejected the plea offer nonetheless. Id. at 4-9.

Accordingly, to the extent that Aguiar now argues that the Court erred by failing to consider the

arguments raised in his Traverse, the Court finds that that this argument is without merit because

the Court did in fact consider all new information raised in the Traverse and still held that Aguiar’s

ineffective assistance of counsel claim was without merit. 1

       Next, Aguiar argues that the Court incorrectly held that the courtroom closure alleged in

Aguiar’s § 2255 motion was trivial and, as such, did not amount to a Sixth Amendment violation.

Def.’s Mot. to Alter or Amend Judgment, at 4-5. The Court finds no basis to alter or amend its

judgment because the Court fully considered Aguiar’s arguments and issued detailed findings

related to this issue based on the relevant case law. See Memo. Op. (Feb. 12, 2015), at 16-27.

Aguiar does not raise any new arguments with regard to this issue in the instant motion that have

not already been addressed by the Court.

       Aguiar’s next contention is that the Court missed the crux of his argument with relation to

his claim that his trial counsel failed to object to an alleged constructive amendment to the




       1
         The Court notes that Aguiar’s Motion to Alter or Amend Judgment is dated February 27,
2015, the same day that the Court issued the Memorandum Opinion addressing the arguments
raised in his Traverse. As such, the Court notes that it is likely that Aguiar had not received the
Court’s Memorandum Opinion, which was sent to him by mail, at the time that he drafted the
Motion to Alter or Amend Judgment.
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indictment. Aguiar argues that the Court did not properly consider his claim in light of the United

States Court of Appeals for the Seventh Circuit’s opinion in United States v. Leichtnam, 948 F.2d

370 (7th Cir. 1991). Specifically, Aguiar asserts that Leichtnam supports the proposition that trial

counsel should have raised an objection to the admission of firearms not listed in the indictment.

Def.’s Mot. to Alter or Amend Judgment, at 6. Further, Aguiar argues, “[T]his Court is applying

a generic analysis to this claim that only circulates around the point of the violation where counsel

did not object to the additional firearms being introduced, the jury would have assume[d] was part

of the indictment . . . .” Id.

        In its Memorandum Opinion, the Court specifically addressed Aguiar’s argument that

based on Leichtman, his trial counsel should have objected to weapons admitted into evidence that

did not form the bases of Counts IV and XI, the § 924(c) firearm charges upon which Aguiar was

convicted. Memo. Op. (Feb. 12, 2015), at 33-34. Indeed, the Court specifically found Leichtman

distinguishable from the instant action because: (1) the indictment in Leichtnam charged the

defendant with using and carrying a very specific firearm, the Mossberg rifle recovered during the

execution of a search warrant, whereas Aguiar’s indictment simply referred to a machinegun, a

category of firearms defined by statute and Counts IV and XI included a description of assault

weapons with no further designation; (2) unlike in Leichtnam, Aguiar was charged with using and

carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) or aiding and

abetting that offense in violation of 18 U.S.C. § 2, meaning that he could have been held culpable

for aiding and abetting his codefendants in relation to firearms that they possessed during the

commission of the two bank robberies; and (3) the two handguns that were introduced into

evidence in Leichtnam were not introduced as proof of any specific charge in the indictment, but

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in the instant action, the government introduced several weapons into evidence as part of its proof

for the crimes charged against Aguiar and his five other codefendants with whom he was tried. Id.

Nevertheless, the Court still considered Aguiar’s argument and ultimately held that the

introduction of the weapons at trial, the jury instructions, and the verdict form did not undercut

Aguiar’s ability to prepare for trial. Id. at 35. The Court further found that the introduction of the

weapons at trial, the jury instructions, and the verdict form did not raise double jeopardy concerns

because of the specificity of the indictment. Id.     In its Memorandum Opinion, the Court fully

considered Aguiar’s argument that his counsel was deficient for failing to object to the introduction

of weapons into evidence that were not specifically related to the two § 924(c) charges brought

against him in Counts VI and XI. Accordingly, the Court shall not alter or amend its judgment

with respect to this issue.

        Finally, Aguiar argues that the Court prematurely decided not to issue a Certificate of

Appealability. The Court finds this argument is without merit. Pursuant to Rule 11 of the Rules

Governing Section 2255 Proceedings, “the district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant. Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should issue.” Rules

Governing Section 2255 Proceedings for the United States District Courts, Rule 11(a) (emphasis

added). A judge may issue a certificate of appealability “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Here, this

Court declined to issue a certificate of appealability only after finding that Aguiar had not made a

showing that reasonable jurists could debate whether the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve encouragement to proceed

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further. See Memo. Op. (Feb. 12, 2015), at 43-44 (citing Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983))). While Aguiar appears to

contend that the Court prematurely denied a certificate of appealability without permitting

additional argument on the issue, the Court notes that it may, but is not required to, permit

additional briefing on this issue. Here, in an exercise of its discretion, the Court determined that

additional briefing on this issue was not required because Aguiar failed to make a substantial

showing of the denial of a constitutional right. As such, the Court shall not alter or amend its

decision not to issue a Certificate of Appealability.

       Accordingly, it is, this 19th day of May, 2015, hereby

       ORDERED that Defendant Carlos Aguiar’s [875] Motion to Alter or Amend Judgment is

DENIED; and it is further

       ORDERED that the Clerk of the Court shall mail a copy of this Memorandum Opinion &

Order to Mr. Aguiar at his address of record.

       SO ORDERED.



                                                            /s/
                                                        COLLEEN KOLLAR-KOTELLY
                                                        UNITED STATES DISTRICT JUDGE




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