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holding that defendant "cannot show such prejudice because there was strong, irrefutable evidence against him, and he received a considerable benefit under the terms of his plea agreement"
Summary of this case from Valentine v. LordOpinion
02 Cr. 9745 (RPP), 00 Cr. 1236 (RPP)
July 30, 2003
OPINION AND ORDER
Defendant-Petitioner Jose DeLeon ("DeLeon") brings the current petition pro se pursuant to 28 U.S.C. § 2255, claiming (1) denial of his Sixth Amendment right to effective assistance of counsel at the plea bargaining and sentencing stages for failure to request a two point downward departure for playing a minor role; and (2) denial of effective assistance of counsel at the plea bargaining and sentencing stages for failure to secure a two point downward departure for DeLeon's willingness to consent to deportation. For the following reasons, DeLeon's petition is denied.
Background
On October 31, 2000, DeLeon was arrested and charged with conspiring to distribute and possess with intent to distribute five kilograms of cocaine, in violation of 21 U.S.C. § 846. As set forth in the Complaint, a 20 foot-long metal shipping container (the "Container") arrived in the Port of Philadelphia, Pennsylvania on October 24, 2000. (Complaint ¶ 4a.) The Container had been shipped from the Dominican Republic, and was addressed to the attention of "Argentina Dalmasi" at "Brunos Super Market, 96 West 162nd Street, Bronx, New York 10452, USA." (Id. ¶ 4b.) United States Customs officials searched the Container and found "450 boxes of ceramics, placed on top of 20 wooden pallets." (Id. ¶ 5a.) "[E]mbedded within 19 of those 20 [wooden] pallets," inspectors found "20 1-inch round by 38-inch long PVC pipes, each of which was filled with [cocaine.]" (Id. ¶ 5b.) The PVC pipes and the cocaine powder therein weighed a collective 36 pounds, or over 16 kilograms. (Id.) Customs agents replaced the cocaine powder with a substance resembling cocaine, reassembled the pipes and prepared to make a controlled delivery of the Container. (Id. ¶¶ 6, 11.)
A copy of the Complaint is attached as Exhibit A to the Government's letter brief dated February 21, 2003 in opposition to Defendant-Petitioner Jose DeLeon's petition.
The day that the Container arrived in the United States, a woman identifying herself as "Argentina Dalmasi," and DeLeon, identifying himself as "Miguel Martinez," appeared at Seaboards's office, the company that shipped the Container, and attempted to pay for it in cash. (Id. ¶¶ 7a, 11c.) After being informed by a Seaboard representative that they could not pay in cash, Dalmasi and DeLeon returned to the Seaboard office later that day and paid in money orders for the Container's forward delivery by a private trucking company to the intended address in the Bronx. (Id. ¶¶ 7a, 7b, 11c.) On October 31, 2000, Customs agents executed surveillance of Bruno's Supermarket, and other law-enforcement personnel, disguised as truck delivery men, delivered the Container to that location. (Id. ¶¶ 10, 11.) Dalmasi approached the Customs agents and indicated that the Container was to be delivered to her, and she instructed the agents to unload the contents of the Container. (Id. ¶¶ 11a, 11b.) While the cargo of ceramics, and wooden pallets containing the sham cocaine was unloaded, DeLeon arrived at the scene in a maroon van. (Id. ¶ 11c.) Several men loaded the majority of the wooden pallets, but not the ceramics, into the van, and DeLeon drove the van to 939 Woodycrest Avenue, a large apartment building, and parked the van at that location. (Id. ¶¶ 12a, 13.) DeLeon, Roberto Rolando Fuentas Brea and two other men began to unload the pallets from the van into an apartment building. (Id. ¶ 13.) DeLeon, Brea and Dalmasi, who was across the street from Bruno's Supermarket, were all arrested. (Id. ¶¶ 13, 16.)
Two men loaded several of the remaining pallets onto a handcart and one man carried a single pallet in his hand, and they all walked in the direction of the same apartment building on Woodycrest Avenue. (Id. ¶¶ 12b, 12c.)
At the time of DeLeon's arrest, he possessed the key to the apartment to which he and the other men were taking the wooden pallets. (Id. ¶ 14.) Following his arrest, DeLeon admitted that he traveled to the shipping company in New Jersey with Dalmasi "to inquire about the delivery of the shipment." (Id.)
An Indictment was filed against DeLeon on November 30, 2000 containing a sole count charging DeLeon with conspiring to distribute and possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846. On August 7, 2001, DeLeon pled guilty to the Indictment before this Court. At that proceeding, DeLeon was represented by Paul J. McAllister, Esq., who was appointed pursuant to the Criminal Justice Act. At the proceeding, DeLeon entered his plea pursuant to a plea agreement with the government (the "Plea Agreement").
A copy of the Plea Agreement is attached as Exhibit B to the Government's letter-brief dated February 21, 2003.
Pursuant to the Plea Agreement, the parties, agreed to, among other things, the following terms, as consistent with the United States Sentencing Guidelines: (1) DeLeon's offense level was 27, calculated from a base offense level of 32 pursuant to U.S.S.G. §§ 2D1.1 (a)(3) and (c)(4), a two point decrease pursuant to U.S.S.G. § 2D1.1 (b)(6), and a three point decrease pursuant to U.S.S.G. §§ 3E1.1 (a) and (b), should DeLeon evince his acceptance of responsibility and do so in a timely manner (Plea Agreement at 2); (2) DeLeon was in Criminal History Category I because he had no criminal history points (id.); (3) DeLeon's sentencing range was 70-87 months in prison; (id.) (4) "neither a downward nor an upward departure from the stipulated Guidelines range . . . [was] warranted" (id. at 3); and (5) DeLeon could "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Guideline range set forth . . . (70 to 87 months)." (Id. at 4.)
The Plea Allocution was held on August 7, 2001, at which DeLeon stated that the Plea Agreement was translated for him into Spanish, that he had discussed the Plea Agreement with his attorney, Mr. McAllister and his interpreter, and that he had signed it and understood its terms. (Plea Allocution at 6-7.) The Court conducted the following colloquy regarding the Plea Agreement's provision regarding the waiver of appeal:
A copy of the Plea Allocution is attached as Exhibit C to the Government's letter-brief dated February 21, 2003.
THE COURT: Probably if this — am I right that this plea agreement provides that — let me see — provides that if the sentence is — that this plea agreement provides that if you receive a sentence within or below the stipulated guideline range of 70 to 87 months, that you will not appeal your sentence?
THE DEFENDANT: Yes, sir.
(Id. at 12.)
On January 7, 2002, DeLeon, represented by Mr. McAllister, was sentenced by this Court. This Court noted that it had received a letter from DeLeon dated December 27, 2001 and expressed a concern that DeLeon "may believe that I have grounds to depart from the sentencing guidelines, which of course, I don't have under this circumstance." (Sentencing Transcript at 3.) Mr. McAllister, representing DeLeon, explained to the Court his position:
A copy of the Sentencing Transcript is attached as Exhibit E to the Government's letter-brief dated February 21, 2003.
That's so, your Honor. And we've gone over and over and over the plea agreement, pursuant to which Mr. DeLeon pleaded guilty, and that's what binds us. And it was my understanding and remains my understanding that he is aware of that.
(Id. at 3-4.) The Court noted that DeLeon was receiving a significant departure below the otherwise applicable ten-year statutory mandatory minimum sentence (id. at 5), and ultimately sentenced DeLeon to 70 months imprisonment with three years supervised release. (Id. at 7.) DeLeon is currently serving the custodial portion of his sentence and did not file an appeal.
On December 10, 2002, DeLeon filed the current petition pursuant to 28 U.S.C. § 2255, claiming (1) denial of his Sixth Amendment right to effective assistance of counsel at the plea bargaining and sentencing stages for failure to request a two point downward departure for playing a minor role; and (2) denial of effective assistance of counsel at the plea bargaining and sentencing stages for failure to secure a two point departure for DeLeon's willingness to consent to deportation.
Discussion
I. The Clear Terms of the Plea Agreement
At the onset, DeLeon's right to bring the current petition was clearly waived by the terms of the Plea Agreement. (Plea Agreement at 4.) Pursuant to the Plea Agreement, DeLeon stipulated that his Sentencing Guideline range was between 70 and 87 months imprisonment, and that neither an upward or downward departure from the stipulated Guidelines range was warranted. (Id. at 2-3.) He specifically waived his right to file an appeal or Section 2255 petition if the sentence he received was in that range. (Id. at 4.) DeLeon stated unambiguously at his Plea Allocution that the Plea Agreement had been read to him in Spanish and that he understood the terms of the Plea Agreement. (Plea Allocution at 6-7.) Because this Court sentenced DeLeon to 70 months in prison, the lowest term within the range (Sentencing Transcript at 7), DeLeon's right to file a Section 2255 petition was forfeited. The Second Circuit has held that a defendant's waiver of his right to appeal a sentence that is within an agreed-upon Sentencing Guidelines range is enforceable when a "defendant . . . knowingly and voluntarily enters into a plea agreement containing a waiver of appeal rights and obtains the benefits of such an agreement." United States v. Difeaux, 163 F.3d 725, 728 (2d Cir. 1998) (holding that defendant waived his right to appeal because his sentence fell within the stipulated Guidelines range pursuant to the plea agreement, even though the defendant was not given the benefit of the safety valve provision). DeLeon's petition is therefore denied.
Regardless of DeLeon's inability to bring the current motion before this Court on account of waiver as discussed above, DeLeon's petition also fails on the merits for the following reasons.
II. Ineffective Assistance of Counsel Claim
Pursuant to Section 2255, "[a] prisoner in custody under sentence of a court . . . 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 . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. In a Section 2255 proceeding, a petitioner bears the burden of proof by a preponderance of the evidence.See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000). In order to establish an ineffective assistance of counsel claim, a defendant must show that: 1) "counsel's representation fell below an objective standard of reasonableness"; and 2) "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In evaluating the first prong of a defendant's claim pursuant to theStrickland standard, a court "`must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that `[t]here are countless ways to provide effective assistance in any given case' and that `[e]ven the best criminal defense attorneys would not defend a particular client in the same way.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689). With regard to the secondStrickland prong, a defendant must establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
The Supreme Court held in Hill v. Lockhart, 474 U.S. 52, 57 (1985), that the Strickland two-pronged test is the applicable standard for "ineffective-assistance claims arising out of the plea process." TheHill Court held that a defendant seeking to establish an ineffective assistance claim in the context of a guilty plea would have to show that his counsel rendered an objectively unreasonable performance and that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."Id. at 57-59.
A. DeLeon's Counsel's Performance Was Reasonable
In this case, Mr. McAllister's performance representing DeLeon overall was objectively reasonable. The evidence against DeLeon was strong: DeLeon, using a false alias, twice accompanied a co-conspirator to a shipping company, and paid in money orders for the delivery of the Container (Compl. ¶¶ 7a, 7b, 11c); DeLeon, with others, took possession of the Container's contents (id. ¶¶ 11, 12a, 13); DeLeon sorted through the contents of the Container and loaded only the pallets containing the narcotics into his van (id. ¶¶ 12a, 13); DeLeon drove the pallets to an apartment building and possessed the key to the apartment where DeLeon and others attempted to store narcotics (id. ¶¶ 13, 14); and following his arrest, DeLeon made a statement to the police that he had accompanied a co-conspirator to the shipping company. (Id. ¶ 14.) Based on this evidence of guilt, it was reasonable for Mr. McAllister to advise DeLeon that a guilty verdict was a strong possibility and that if convicted following a trial, DeLeon would face a prison sentence pursuant to the Sentencing Guidelines (at level 32) of 121 to 151 months imprisonment. As a result of his plea of guilty, DeLeon received the benefit of the safety valve provision and got his Guidelines level reduced by 5 offense level points, and his prison term sentencing range reduced to 70-87 months. Mr. McAllister effectively advocated on behalf of his client, such that this Court gave DeLeon the minimum sentence in the new range of 70 months imprisonment.
1. Consent to Deportation
DeLeon specifically contends that Mr. McAllister rendered ineffective assistance of counsel both during plea negotiations and at sentencing by failing to secure a reduced sentence for DeLeon's consent to deportation. (Petitioner's Motion at 5, 8.) The law is clear in the Second Circuit that:
a defendant seeking a departure under § 5K2.0 for consenting to deportation must present a colorable, nonfrivolous defense to deportation, such that the act of consenting to deportation carries with it unusual assistance to the administration of justice. In the absence of such a showing, the act of consenting to deportation, alone, would not constitute a circumstance that distinguishes a case as sufficiently atypical to warrant a downward departure.United States v. Galvez-Falconi, 174 F.3d 255, 260 (2d Cir. 1999) (citations and quotations omitted). DeLeon did not set forth a "nonfrivolous defense to deportation," and pursuant to Galvez-Falconi, "the act of consenting to deportation, alone" was not sufficient to entitle DeLeon to a downward departure. Id. Accordingly, it was not unreasonable that Mr. McAllister did not seek such a departure at the plea bargaining stage or at sentencing, because DeLeon was not entitled to the departure under binding precedent.
2. Minor Role in the Offense
DeLeon further contends that Mr. McAllister rendered ineffective assistance of counsel, both during the plea bargaining stage and at sentencing, for failure to secure a reduction in DeLeon's sentence for his minor role in the offense. (Pet. Mot. at 5, 6.) The strong evidence of DeLeon's guilt, as detailed above, also speaks to the fact that he played more than a minor role in the offense. DeLeon was one of at least three individuals who conspired to bring between five and fifteen kilograms of cocaine into the United States (Compl. ¶¶ 1-2); DeLeon used an alias when attempting to obtain delivery of a shipment of what he believed to be drugs (id. ¶¶ 7a, 7b, 11c); DeLeon's participation in the paying of shipping charges, in unloading the packages he believed to be drugs, and driving the van with the packages to an apartment to which he had a key are an indication that he played a supervisory role in the receipt of the "narcotics" and arrangements for secreting them. (Id. ¶¶ 7b, 12a, 13, 14.) These actions do not constitute those of a participant in a drug scheme who is deserving of a minor role adjustment.See United States v. Garcia, 920 F.2d 153, 155 (2d Cir. 1990) (upholding district court finding that defendant's participation was essential to the transaction and noting that "the defendant's relationship to the other participants, the importance of the defendant's actions to the success of the venture and the defendant's awareness of the nature and scope of the criminal enterprise" are the relevant factors in determining if a minor role adjustment is proper). Thus, it is not unreasonable that Mr. McAllister did not seek a downward departure for DeLeon's minor role in the offense, because DeLeon was not entitled to the adjustment as a matter of law.
B. DeLeon Was Not Prejudiced
DeLeon's ineffective assistance of counsel claims also fail under the second prong of Strickland requiring that a defendant show prejudice. As noted, the Second Circuit more specifically requires that a defendant show that he would not have pled guilty and would have gone to trial, in the absence of the ineffective counsel. See Hill, 474 U.S. at 59. In this case, DeLeon cannot show such prejudice because there was strong, irrefutable evidence against him, and he received a considerable benefit under the terms of his plea agreement. See Moran v. United States, 1998 WL 54616, at *5 (S.D.N.Y. 1998) (rejecting a Section 2255 petition, noting that petitioner failed to "show prejudice as required by the second part of the Strickland test . . . because . . . the plea agreement that [defense counsel] negotiated for [petitioner] was very favorable in light of the government's overwhelming evidence and the penalties that [petitioner] faced if convicted at trial").
Furthermore, the Government contends that even if Mr. McAllister had in fact sought a downward departure either for DeLeon's consent to deportation, or for his minor role in the offense, the Government would not have consented to such departures as part of the Plea Agreement. (Gov. Letter in Opp. at 13.) Furthermore, the Court would not have granted an application by Mr. McAllister for such departures in view of the Plea Agreement that expressly prohibited him from making such an application. (Id.)
Accordingly, DeLeon's ineffective assistance of counsel claims are denied.
Conclusion
For the forgoing reasons, DeLeon's petition is denied.