Opinion
00 Civ. 8737 (JGK)
August 30, 2003
OPINION AND ORDER
The petitioner, Francisco Miguel Diaz ("Diaz"), has moved pro se under 28 U.S.C. § 2255 to vacate his conviction and sentence pursuant to his plea of guilty to one count of conspiring to distribute and possess with intent to distribute at least one kilogram of heroin, and one count of distributing and possessing with intent to distribute approximately 863 grams of heroin. The petitioner claims that he received ineffective assistance of counsel at sentencing and on appeal. Diaz also argues that he is entitled to relief under the Supreme Court's decision in Apprendi v. New Jersey. 530 U.S. 466 (2000). For the reasons stated below, the petition is denied.
I.
The petitioner was indicted in a two-count indictment on October 23, 1997. Count One of the Indictment charged that the petitioner and Ceasar Mendez ("Mendez") conspired with others known and unknown to distribute and possess with intent to distribute one kilogram and more of mixtures and substances containing a detectable amount of heroin in violation of Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21, United States Code. Count Two of the Indictment charged Diaz and Mendez with possessing with intent to distribute approximately 863 grams of mixtures and substances containing a detectable amount of heroin in violation of Sections 841(a)(1) and 841(b)(1)(B) of Title 21, United States Code, and Section 2 of Title 18, United States Code.
On February 13, 1998, the petitioner pleaded guilty pursuant to aPimentel letter submitted by the Government in accordance with United States v. Pimentel. 932 F.2d 1029, 1034 (2d Cir. 1991). (See Pimentel Letter dated Feb. 9, 1998 attached as Addendum to Gov. Brief to Second Circuit Court of Appeals). The Pimentel letter advised Diaz, in relevant part, of the Government's present belief that under the Sentencing Guidelines the total Offense Level after trial would be 32, Diaz's Criminal History Category was I, and that the Sentencing Guidelines range was 121 to 151 months in prison after trial. (Id. at 2.)
At the time of the petitioner's plea the Court informed Diaz that the petitioner had certain rights under the Constitution and laws of the United States which the petitioner would be giving up if he entered a plea of guilty. (Transcript of Plea dated Feb. 13, 1998 ("Plea Tr.") at 6-10.) The Court then read the Indictment aloud in open court. (Id. at 12-13.) The Court explained the elements of the conspiracy charge and the substantive offense and further explained that the Government would be required to prove all of those elements beyond a reasonable doubt. (Id. at 14-15.) The Court then advised Diaz of the penalties for the crimes to which the petitioner was entering a plea of guilty. The Court informed the petitioner, in relevant part:
The petitioner pleaded guilty to the Indictment prior to the Supreme Court's decision in Apprendi, and therefore the Court, considering the quantity of drugs involved as a sentencing factor rather than an element of the offenses charged, did not advise Diaz that the Government would be required to prove the amount of drugs charged in the Indictment beyond a reasonable doubt at trial. (See Plea Tr. at 14). See also Coleman v. United States, 329 F.3d 11, 82-83 (2d Cir. 2003).
With respect to Count One of the Indictment, the conspiracy charge, do you understand that the maximum penalty for the crime in that count of the indictment is a maximum sentence of life imprisonment, a mandatory minimum term of ten years imprisonment? In other words, the minimum term of imprisonment is ten years. A maximum fine of $4 million; a maximum term of supervised release of life; a mandatory minimum term of five years supervised release? In other words, the minimum term of supervised release is five years. And a mandatory special assessment of $100.
. . . .
And with respect to Count Two, do you understand that the maximum penalty for the crime to which you are entering a plea of guilty in Count Two is a maximum sentence of 40 years imprisonment, a mandatory minimum term of five years imprisonment, a maximum fine of $2 million, a maximum term of supervised release of life, a mandatory minimum term of four years supervised release, and mandatory special assessment of $100? Do you understand that that's the maximum and mandatory minimum penalty in Count Two of the indictment?
(Id. at 15-16.) Diaz stated that he understood the penalties. (Id.) After outlining the potential penalties that Diaz faced for pleading guilty to Counts One and Two, the Court instructed Diaz that the Court would sentence the petitioner separately on each count and that the Court could order those sentences on those counts to run concurrently or consecutively. (Id. at 15-17.) In the latter case, the Court explained, the maximum sentence would in fact be life plus forty years. (Id. at 17-18.) Diaz stated that he understood this as well. (Id. at 18.)
The Court next ascertained that there was a factual basis for Diaz's plea. Diaz admitted that he had conspired with Mendez to sell heroin and that he delivered a sample of heroin to a confidential informant ("CI") on September 16, 1997. (Id. at 21-22.) Diaz also admitted that he possessed heroin with the intent to distribute it on September 25, 1997 in Manhattan and that he knew that what he was doing was wrong and illegal. (Id. at 23-24.) Diaz then pleaded guilty to both counts in the indictment, and the Court then accepted the petitioner's guilty plea. (Id. at 25.)
The Probation Office prepared a Presentence Investigation Report ("PSR"), including a recommendation and addendum, dated May 8, 1998. Based on Section 2D1.1(c)(4) of the 1997 edition of the Guidelines Manual, the PSR calculated the Base Offense Level as 32 because the relevant offense involved the attempt to sell between one and three kilograms of heroin. (PSR ¶¶ 19, 22.) The PSR suggested that the offense level be reduced three levels for acceptance of responsibility, resulting in a Total Offense Level of 29. (PSR ¶¶ 28, 31.) Based on an offense level of 29 and a Criminal History Category of I, the PSR identified the sentencing range as 87 to 108 months. (Id. at ¶ 50.) However, under the statutory mandatory minimum provision applicable to Count One, the minimum term of imprisonment, and thus the guideline term of imprisonment, was 120 months. (Id.)
Diaz's counsel sent a letter to the Court objecting to the PSR's conclusion that the Base Offense Level was 32. (See Letter from Lawrence F. Ruggiero to the Court dated Oct. 6, 1998, included in Appendix to Diaz's Brief to the Second Circuit Court of Appeals ("App.") at 41.) Instead, Ruggiero argued, the offense level should have been 30 because Diaz was involved in the sale of only 800 grams of heroin. (Id.) In response, the Government argued that under Application Note 12 to Guideline § 2D1.1 the offense level was appropriately calculated based on the agreed-upon quantity of controlled substances for sale (one kilogram) rather than the amount of heroin actually delivered. (Letter from David C. Esseks to the Court dated Oct. 13, 1998, App. at 43-44.)
On January 15, 1999, the Court held a hearing to address, among other issues, the quantity of narcotics for which Diaz should be held responsible. The Government called Special Agent Robert Garcia ("Garcia") of the Drug Enforcement Agency ("DEA"). Garcia testified that during taped conversations with a CI, Diaz negotiated the sale of one kilogram of heroin. (Transcript of Jan. 15, 1999 Hearing at 5.) According to Garcia, Diaz gave the CI a small sample of the heroin and informed the CI that Diaz could provide two 500-gram deliveries of heroin. (Id. at 6-7.) The CI and Diaz later agreed to meet on September 25, 1999 to conduct a single one-kilogram transaction. (Id. at 8.) However, the night before the transaction, Diaz informed the CI that he was in possession of only 800 grams of heroin. (Id.) The next day, Diaz met the CI who was accompanied by Garcia who was posing as the buyer. Diaz advised that he actually had more than 800 grams of heroin and asked Garcia how much money he had. (Id. at 9.) After Garcia informed Diaz that he only had money to pay for 800 grams, Diaz told Garcia that he could pay for the balance of the heroin on their next deal. (Id.) Garcia testified that he understood Diaz to mean that Diaz intended to conduct another considerable heroin transaction with Garcia and the CI. (Id.) After Diaz, who was joined by Mendez, showed Garcia the heroin, other agents on the scene arrested the defendants. (Id. at 10.)
A DEA lab calculated the net weight of the heroin seized as 818 grams. (Id.). Diaz had told the CI that he would charge $87,000 per kilogram of heroin. (Id. at 11.) Therefore, the additional 18 grams that Diaz provided Garcia at the time of the sale were worth approximately $1,500. (Id.)
The defense did not call any witnesses at the hearing. The parties submitted tape recordings and transcripts of conversations between Diaz and the CI that the Government had produced in discovery. (Id. at 24.) The defense argued that tape recorded conversations showed that Diaz made clear to the CI that Diaz could not obtain the kilogram of heroin. (Id. at 44, 46.) Therefore, defense counsel argued, the mandatory minimum ten-year sentence should not apply. (Id. at 46-47.)
Counsel for the petitioner wrote to the Court following the hearing and argued that in determining which mandatory minimum is applicable to an individual defendant charged in a drug conspiracy the Court can consider only the drugs that the defendant and his co-conspirator actually distributed. (Letter from Lawrence F. Ruggiero to the Court dated Feb. 1, 1999, App. at 103.) Therefore, Ruggiero argued, the ten-year mandatory minimum sentence did not apply because Diaz was responsible for possessing and distributing only the 818 grams of heroin that he delivered to Garcia and the CI. (Id. at 103-04.) Under this theory, the object of the conspiracy charged in Count One — the distribution and possession of one kilogram or more of heroin — is irrelevant to determining the appropriate mandatory minimum sentence. (Id. at 104.) In response, the Government repeated its position that the agreed-upon quantity in the sale of a controlled substance should be used to determine the relevant offense level. (Letter from Nicole LaBarbera to the Court dated Apr. 9, 1999, App. at 111.) The Government alleged that Garcia's testimony and the other evidence at theFatico hearing made clear that the defendant had negotiated the sale of one kilogram of heroin and that therefore Diaz was responsible for the full kilogram. (Id. at 110-11.)
The parties convened for sentencing on April 21, 1999. The Court noted that there were three issues or objections to be resolved, including the defense's argument that the object of the conspiracy charged in Count One was to possess only 818 grams of heroin and that therefore the ten-year mandatory minimum under § 841(b)(1)(A) did not apply. (Transcript of Hearing dated Apr. 21, 1999 at 3.) Diaz's counsel argued, among other things, that Diaz had not been capable of delivering one kilogram of heroin. (Id. at 5.)
With respect to this objection, the Court adopted the findings of fact in the presentence report and explained:
[H]aving reviewed the evidence and assessed the demeanor and credibility of Agent Garcia, the Court finds by a clear preponderance of the evidence, indeed by clear and convincing evidence, that the defendant conspired to distribute and possessed with intent to distribute at least one kilogram of heroin. The mandatory ten-year minimum of [ 21 U.S.C. § 841(b)(1)(A)] therefore applies. It should be noted that this was the charge in the indictment in count 1 to which the defendant pleaded, and the Court specifically advised the defendant at the time of his plea that the mandatory minimum sentence was ten years. (See February 13, 1999 transcript at 22). The Court is aware that the drug quantity is not an element of the offense and that it is the government's obligation to prove the drug quantity. The evidence supports the government's contention that this was in fact a conspiracy to distribute and possess with intent to distribute at least one kilogram of heroin.
(Id. at 10-11.) The Court found that the argument that the transaction was complete as of September 25, 1999 was not credible in view of the additional $1,500 worth of heroin that Diaz gave Garcia in excess of the 800 grams that Garcia could pay for at that time. (Id. at 12.) The Court found that the tape recorded conversations admitted into evidence at the January 15, 1999 hearing showed that Diaz attempted to structure the transaction by delivering two quantities of 500 grams of heroin for a total of one kilogram and that the evidence indicated that Diaz had the ability to do so. (Id. at 13-14.)
Having detailed the factual findings, the Court explained that the correct amount of narcotics for purposes of calculating the Sentencing Guidelines for the conspiracy charged in Count One was one kilogram despite the fact that agents apprehended Diaz with less than one kilogram of heroin. (Id. at 16-18.) The Court concluded that under the current Sentencing Guidelines the Total Offense Level was 29, the Criminal History Category was I, and the Guideline Sentencing Range was 87 to 108 months. (Id. at 22.) However, the Court also found that there was a statutory mandatory minimum sentence on Count One of 120 months. (Id.) Therefore, the Court imposed a sentence of 120 months on Count One and 87 months on Count Two, to run concurrently. (Id. at 25.) The Court also ordered that upon release from imprisonment Diaz would be placed on supervised release for a term of five years on Counts One and Two to run concurrently and imposed a mandatory special assessment of $200. (Id. at 26-27.)
Diaz filed a notice of Appeal on April 26, 1999. On Appeal, Diaz argued that the Court had clearly erred in finding that he conspired to distribute one kilogram and more of heroin subjecting him to the mandatory ten-year minimum sentence for that offense. By Summary Order dated November 23, 1999, the Second Circuit Court of Appeals affirmed Diaz's sentence. United States v. Diaz, 205 F.3d 1325 (2d Cir. 1999) (table).
II.
Diaz argues that he is entitled to relief under § 2255 because his counsel who represented him at sentencing and on appeal, was ineffective for failing to argue that the Court erred in finding that Diaz had conspired to distribute one kilogram of heroin and was therefore subject to a statutory mandatory minimum sentence of ten years' imprisonment. The Government responds that Diaz's claim is procedurally barred because a § 2255 petition cannot be used to argue a claim that the petitioner already raised on appeal. See United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (per curiam) ("It is well established that a § 2255 petition cannot be used to relitigate questions which were raised and considered on direct appeal." (quotations omitted));Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995) ("It is clear that section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal." (quotations and alteration omitted)). Therefore, the Government contends, because Diaz already argued to the Court of Appeals that this Court erred in its findings as to the quantity of drugs at issue in Diaz's case and the resulting sentence imposed, Diaz cannot raise this claim on the current petition.
Diaz argued to the Court of Appeals that this Court erred in sentencing the petitioner under § 841(b)(1)(A) based on a finding that Diaz conspired to distribute one kilogram or more of heroin. Therefore, the Government is correct that the petitioner could not use this petition to reargue that issue. Diaz does not do so. The petitioner instead argues not that the Court clearly erred in sentencing the petitioner but that Diaz's counsel was ineffective for failing to raise the alleged sentencing errors before this Court and the Court of Appeals. This is a separate but related argument to the one that Diaz's counsel set forth before this Court an the Court of Appeals. However, the argument of ineffective assistance of counsel is plainly without merit.
To establish a claim of ineffective assistance of counsel, Diaz must show both that: (1) his counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) that his counsel's deficient performance was prejudicial to his case. See Strickland v. Washington. 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995); Altman v. United States, No. 94 Cr. 454, 2001 WL 687370, at *2 (S.D.N.Y. June 19, 2001). The petitioner cannot satisfy this test. It is clear that his counsel set forth the petitioner's argument regarding his sentence both to this Court and to the Court of Appeals. Both Courts found the argument to be without merit. Therefore, Diaz's counsel acted reasonably. Moreover, the petitioner cannot show that he was prejudiced by his counsel's reasonable representation. Both this Court and the Court of Appeals rejected this argument and the petitioner has not explained what else his counsel could have done to have changed the result. The petition for relief pursuant to § 2255 on the ground of ineffective assistance of counsel must therefore be denied.
III.
On May 9, 2001, after this petition was filed, the Court issued an order requesting the Government to address the question of whether the petitioner had any claim for relief based on the Supreme Court's decision in Apprendi, in which the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490; see United States v. Thomas, 274 F.3d 655, 673 (2d Cir. 2001) (en banc) (confirming that "[a]fter Apprendi, drug type and quantity are elements of the offense under 21 U.S.C. § 841 that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt" when they raise a potential penalty above the otherwise applicable statutory maximum). More specifically, the Order stated that the Government should consider
Although Diaz argues that he raised an Apprendi claim in his petition for a writ of habeas corpus, this is not the case. Instead the Court raised the issue with the parties sua sponte. In any event, the petitioner is plainly pursuing that argument.
(1) whether Apprendi applies to a mandatory minimum sentence; (2) whether it applies in the context of a guilty plea where the defendant was advised of the charge in the indictment and the mandatory minimum as well as the maximum sentence; (3) whether it applies retroactively on a petition for relief under section 2255; and (4) any other factor relevant to the question of whether Apprendi applies in this case. The Government is also requested to advise the Court whether any of these issues is currently pending before the Court of Appeals.
(Order dated May 9, 2001.)
The developments from the Court of Appeals have now answered these questions. The Government is correct that under the clear authority from the Court of Appeals the petitioner does not have a validApprendi claim in this case.
First, Apprendi does not provide the petitioner with relief becauseApprendi does not apply to a mandatory minimum sentence. Count One of the Indictment, to which Diaz pleaded guilty, charged the petitioner with violating 21 U.S.C. § 841(b)(1)(A), under which the petitioner faced a ten-year mandatory minimum sentence and a maximum sentence of life. However, the existence of a statutory mandatory minimum sentence does not trigger the Apprendi requirements. See United States v. Martino, 294 F.3d 346, 349 (2d Cir. 2002) ("Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count." (quoting United States v. McLeod, 251 F.3d 78, 82 (2d Cir.), cert. denied, 534 U.S. 935 (2001))); see also United States v. Luciano, 311 F.3d 146, 151 (2d Cir. 2002) (noting thatApprendi explicitly declined to overrule the holding in MacMillan v, Pennsylvania, 477 U.S. 79, 84-90 (1986), that factual findings triggering the imposition of a mandatory minimum sentence need not be determined by a jury).
In Luciano, the Court of Appeals rejected an argument that the twenty year mandatory minimum provision of 21 U.S.C. § 841(b)(1) (A) could not be imposed because it was based on a finding of drug quantity that was made by the court at a sentencing hearing rather than by the jury at trial. The Court of Appeals noted that the 240 month mandatory minimum sentence was well within the statutory maximum of 21 U.S.C. § 841(b)(1)(C), which applies when a specific amount of drugs is not charged and proven. That section provides for a maximum sentence of 240 months or, as was the case in Luciano, 360 months if the defendant was previously convicted of a felony drug offense. Because Apprendi is a limit on sentencing a defendant above a statutory maximum, it does not apply to the facts that are required to be found to impose a mandatory minimum sentence. See Luciano, 311 F.3d at 151-52. In this case, the petitioner was sentenced to 120 months' imprisonment, substantially less than the statutory maximum sentence that could be imposed under 21 U.S.C. § 841 (b)(1)(C) even if no specific quantity of drugs were proved. The sentence is also well within the statutory maximum of life imprisonment that could have been imposed pursuant to 21 U.S.C. § 841(b)(1)(A). Thus, the petitioner's argument under Apprendi is without merit.
In Luciano, unlike this case, a twenty year mandatory minimum sentence applied because the defendant had previously been convicted of a felony drug offense. See United States v. Luciano, 311 F.3d at 148; see also 21 U.S.C. § 841(b)(1)(A) ("If any person commits [a violation of the statute] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment. . . .")
Second, even if the petitioner had a valid Apprendi claim, the Second Circuit Court of Appeals recently has made clear thatApprendi does not apply retroactively to § 2255 habeas petitions. See Coleman v. United States. 329 F.3d 77, 90 (2d Cir. 2003); accord Love v. Menifee, 333 F.3d 69, 73-74 (2d Cir. 2003). In Coleman, the Second Circuit Court of Appeals explained that Apprendi announced a new procedural rule of law whereby drug quantity is an element in Section 841 prosecutions that must be charged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. Coleman, 329 F.3d at 82-83, 86. The change was merely procedural, not substantive, however, because "[t]he substance of the crime remains the same; only the trier of fact and the standard of proof have changed." Id. at 87. The Court of Appeals found that the petitioner's contention that the quantity of drugs should have been proved to the jury beyond a reasonable doubt was a procedural claim not normally cognizable on habeas review. Id. at 87-88. Moreover, the Court of Appeals found, neither of the "two narrow exceptions'' warranting collateral review set forth in Teaque v. Lane, 489 U.S. 288 (1989) (plurality opinion), applied because Apprendi did not "place an entire category of primary conduct beyond the reach of the criminal law" or "prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense." Id. at 88 (quoting United States v. Mandanici, 205 F.3d 519, 525 (2d Cir.), cert. denied, 531 U.S. 879 (2000)). Nor did Apprendi announce a new "watershed" rule of criminal procedure necessary to the fundamental fairness of the' proceeding. Id. at 88-89. Therefore, Diaz cannot raise an Apprendi claim before this Court on collateral review.
CONCLUSION
For the reasons explained above, the petition for habeas corpus pursuant to 28 U.S.C. § 2255 is denied. The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) because the petitioner has failed to make a substantial showing of the denial of a constitutional right. The Clerk is directed to enter judgment and to close this case.
SO ORDERED.