Opinion
CV-01-7126 (RR).
February 28, 2002.
JESUS GRAJALES, Pro Se, Raybrook, New York.
David C. James, Assistant United States Attorney, Brooklyn, New York, for Defendant.
MEMORANDUM and ORDER
Jesus Grajales, who was convicted before this court on January 25, 2000, after pleading guilty to one count of conspiracy to possess and distribute cocaine, see 21 U.S.C. § 846, and one count of conspiracy to launder narcotics proceeds, see 18 U.S.C. § 1956(h), now moves pro se for an order vacating his conviction and sentence pursuant to 28 U.S.C. § 2255. Grajales is presently incarcerated serving concurrent prison terms of thirty years on the cocaine conspiracy and twenty years on the money laundering conspiracy. He asserts that he was denied effective assistance of counsel on appeal because his attorney failed to argue (1) that his narcotics conviction runs afoul of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and (2) that his money laundering sentence must be vacated because the court engaged in an upward departure from the sentencing guidelines without advance notice to the parties. The government opposes petitioner's motion as without merit. Having carefully reviewed the submissions of the parties as well as relevant portions of the record in the criminal case, this court agrees. Accordingly, the motion to vacate is hereby denied.
Factual Background
In the period between December 1996 and May 1998, Jesus Grajales conspired with a Colombian cocaine supplier, Jaime Main, to smuggle hundreds of kilograms of cocaine into the United States. At the same time, Grajales also headed his own Florida based cocaine and heroin distribution ring. Further, he routinely laundered hundreds of thousands of dollars in drug proceeds.
Grajales was originally named in six counts of a nine-count indictment, along with eighteen co-defendants. Represented by retained counsel, Lawrence Herrmann, Esq., Grajales pleaded guilty on March 19, 1999 to Counts One and Eight of the indictment charging him with conspiring to possess and distribute cocaine and conspiring to launder drug proceeds. Although Count One did not specify the particular quantity of drugs involved in the conspiracy, it did cite to 21 U.S.C. § 841 (b)(1)(A)(ii)(II), which provides a ten-year to life sentencing range for drug crimes involving five kilograms or more of cocaine. In the course of Grajales's allocution, this court expressly advised petitioner that he faced this enhanced sentence:
Count One reads as follows:
In or about and between December 1996 and May 13, 1998, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendants JESUS GRAJALES, also known as "Chucho," ORLANDO PENA, also known as "Yuri," "Antonio Longo" and "Alex," JOSE ESTHVEZ, MAURICIO TARQUINO, JOSE MORA TEJADA, WILLIAM SUAZA, also known as "The Mechanic," JOSE ABREU, also known as "Jossie," "Code 30" and "Edward Patrick," DANIEL NIJNEZ, also known as "Danny" and "Code 41," GERARDO CAZARES-LEYVA, HIILDA BUELNA-LOPEZ CAZARES, OSCAR CAZARES-ESPARZA, IRMA BUELNA-LOPEZ, HECTOR TORO-DAVILA, also known as "Fabio," and HUMBERTO HERRERA, together with others, did knowingly and intentionally conspire to distribute and possess with intent to distribute cocaine, a Schedule II narcotic drug controlled substance, in violation of Title 21, United States Code, Section 841(a)(1). (Title 21, United States Code, Sections 846 and 841(b)(1)(A)(ii)(II); Title 18 United States Code, Sections 3551 et seq.).
THE COURT: Mr. Grajales, these crimes to which you would be pleading guilty are very serious felony crimes. On the narcotics conspiracy[,] because of the quantity of cocaine that the Government believes was dealt, the sentencing range could be anywhere from a minimum of ten years in prison to a maximum of life incarceration.
Plea Trans., March 19, 1999, at 30. Mr. Grajales readily acknowledged understanding this fact. Id. at 31. Moreover, he subsequently admitted dealing in the quantity of drugs specified in § 841(b)(1)(A)(ii)(II):
THE COURT: The Government says that this scheme operated between December of 1996 and May of 1998. . . . Over that period, did you deal in more than five kilograms of cocaine?
DEFENDANT GRAJALES: Yes.
Id. at 37.
The response was hardly surprising. The government had seized almost 150 kilograms of cocaine smuggled into the United States by members of the charged conspiracy. Indeed, Grajales and a co-defendant were arrested attempting to pick up 86 of these kilograms, for which agents had substituted a sham substance.
Prior to sentencing, Grajales obtained new counsel, Thomas Dunn, Esq., also an experienced criminal practitioner who appears regularly before the court. At no time did Grajales challenge his guilty plea. Neither did he object to the Probation Department's recommendation in its pre-sentence report that he be held accountable for 336 kilograms of cocaine and 1.3 kilograms of heroin: Instead, Mr. Dunn challenged the department's recommendation that Grajales be treated as an organizer or leader of the drug conspiracy. See U.S.S.G. § 3B1.1(a). He further objected to its recommendation against any credit for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). Finally, he asserted that if no role enhancement was warranted, his client was eligible for "safety valve" relief based on proffers he had made to the government. See U.S.S.G. §§ 2D1.1(b)(4), 5C1.2.
To resolve factual issues presented by these arguments, the court held a hearing at which two of Grajales's confederates, Orlando Pena and Yonny Rave, testified. After hearing this testimony and the arguments of counsel, the court concluded that a preponderance of the credible evidence established that Grajales was properly viewed as an organizer and leader of the drug conspiracy, that he had not accepted responsibility for his criminal conduct, and that he was not entitled to "safety valve" consideration. As a result, the court calculated Grajales's total offense level at 42. With a criminal history category of I, his guideline sentencing range provided for a 360-month-to-life term of incarceration. The court sentenced Grajales at the low end of this range, imposing a thirty-year term for the drug conspiracy and a concurrent twenty-year term for the money laundering conspiracy.
On direct appeal, Grajales, still represented by Mr. Dunn, challenged this court's decisions on role and acceptance of responsibility. On October 24, 2000, the Court of Appeals rejected these arguments and affirmed Grajales's conviction and sentence in an unpublished decision.See United States v. Grajales, 234 F.3d 1263 (2d Cir. 2000), reported at 2000 U.S. App. LEXIS 26876 (2d Cir. Oct. 24, 2000).
The following year, on October 1, 2001, Grajales filed his motion for § 2255 relief with this court.
Since § 2255 petitions are deemed to have been filed on or about the date they are delivered to prison officials for transmittal to the court, see Houston v. Lack, 487 U.S. 266 (1988), and since this court assumes that Grajales's petition 9 was so delivered on the date he signed it, i.e., October 1, 2000, that date is considered the date of filing.
Discussion
In moving this court to vacate his conviction and sentence, Grajales raises a single claim: that he was denied the effective assistance of appellate counsel guaranteed by the Sixth Amendment. See Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000). A prisoner challenging a conviction on Sixth Amendment grounds carries a heavy burden. He must demonstrate both (1) that his attorney's performance was so unreasonable under prevailing professional norms that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment,"Strickland v. Washington, 466 U.S. 668, 687 (1984), and (2) that the ineffectiveness prejudiced him such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Id. at 694. Accord United States v. Trzaska, 111 F.3d 1019, 1029 (2d Cir. 1997).In applying this test to a claim of ineffective assistance by appellate counsel, a reviewing court must bear in mind that an attorney is not required to raise every colorable claim on appeal, even if requested to do so by a client. See Jones v. Barnes, 463 U.S. 745, 754 (1983). One of the crucial tasks of an effective appellate advocate is to isolate out of a sometimes voluminous record the few key issues most likely to persuade a reviewing court to reverse and not to bury these "in a verbal mound made up of strong and weak contentions." Id. at 753. Thus, to satisfy the first prong of Strickland, a petitioner must show that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). To satisfy Strickland's prejudice prong he must show "a `reasonable probability' that [omitted claims] would have been successful" in securing the desired relief. Id. at 534 (quoting Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)).
Of course, in evaluating any ineffective assistance claim, a reviewing court must "indulge a strong presumption" that counsel's choices "fall within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound [legal] strategy.'"Strickland v. Washington, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Paramount to the court's consideration is "whether counsel's conduct so undermined the proper functioning of the adversarial process" that the appeal "cannot be relied on as having produced a just result." Id. at 686.
Grajales's complaints do not satisfy these strict requirements.
A. Failure to Raise Apprendi Challenge
In Apprendi v. New Jersey, the Supreme Court held that "any fact" other than a prior conviction "that increases the penalty for a crime beyond the prescribed statutory maximum," 530 U.S. at 490, is the "functional equivalent of an element of a greater offense," id. at 494 n. 19, and "must be submitted to a jury, and proved beyond a reasonable doubt," id. at 490. Grajales asserts that it was constitutionally ineffective for his appellate attorney not to raise an Apprendi based challenge to his conviction on Count One since the drug quantity necessary to support his thirty-year sentence was neither pleaded nor proved. Compare 21 U.S.C. § 841 (b)(1)(A)(ii)(II) (providing for sentence often years to life for drug crimes involving five or more kilograms of cocaine) with 21 U.S.C. § 841 (providing for sentence of zero to twenty years for drug crimes regardless of quantity).
Obviously, appellate counsel cannot be faulted for failing to raise anApprendi challenge before that case was even decided. On June 14, 2000, when counsel filed Grajales's appellate brief, the law in the Second Circuit viewed drug quantity not as an element of crimes charged under 21 U.S.C. §§ 841, 846, but rather as a sentencing factor to be determined by the court based on a preponderance of the evidence. See United States v. Campuzano, 905 F.2d 677, 679 (2d Cir. 1990); accord United States v. Thomas, 204 F.3d 381, 384 (2d Cir. 2000), rev'd United States v. Thomas, 274 F.3d 655 (2d Cir. 2001). It was not until twelve days later, on June 26, 2000, that the Supreme Court decided Apprendi, a case involving the sentencing enhancing provisions of New Jersey's hate crime law, N.J. Stat. Ann. § 2C:44-3e.
Grajales brought the Apprendi decision to his attorney's attention in a letter dated July 31, 2000, and inquired as to its applicability to his case. In his August 9, 2000 response, Mr. Dunn expressed reservations about pursuing an Apprendi based claim in Grajales's appeal since "[t]he only possible issue is the weight of the drugs," which "was not objected to a[t the] time of sentencing." Nevertheless, he promised to research the matter further. As this chronology demonstrates, if appellate counsel is to be faulted at all, it can only be for his post-August 9, 2000 failure to amend his brief to add an Apprendi claim.
Oral argument was apparently heard on October 18, 2000. It appears that in papers dated October 16, 2000, Grajales moved pro se in the Court of Appeals to file a supplemental brief raising his Apprendi claim. The government advises that this motion was not acted on by the Circuit. Instead, on October 20, 2000, the motion was forwarded to appellate counsel. After the Court of Appeals affirmed Grajales's conviction on October 24, 2000, Mr. Dunn moved on December 7, 2000 for the Circuit to grant Graj ales permission to file his supplemental brief. See Motion Information Form (submitted as an exhibit to Graj ales's Memorandum of Law). In fact, neither this motion nor a record of its resolution appears on the docket on appeal; thus, the court assumes the motion was not accepted by the Second Circuit.
This court concludes that the omission was not constitutionally ineffective for a number of reasons. First, Apprendi focused on the government's burden to prove sentencing enhancing factors beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. at 469, 120 S.Ct. at 2351. Grajales could not have complained of the government's failure to prove the drug quantity that triggered the sentencing enhancement provided in 21 U.S.C. § 841(b)(1)(A)(ii)(II). His own sworn allocution established beyond a reasonable doubt that he had dealt in more than the required five kilograms of cocaine. As this court has already discussed in Torres v. United States, Nos. CV 00-6542 and CV 00-6667 (RR), 2001 WL 477253, at *3 (E.D.N.Y. Mar. 26, 2001), a plea allocution acknowledging drug quantity satisfies the proof requirements of Apprendi. This conclusion derives from the Second Circuit's rulings in United States v. White, 240 F.3d 127, 134 (2d Cir. 2001), and United States v. Champion, 234 F.3d 106, 110 n. 3 (2d Cir. 2000) (per curiam), both holding that a defendant's stipulation to a drug quantity that triggers a higher statutory minimum renders a jury finding on the issue unnecessary. See also United States v. Thomas, 274 F.3d at 671 (distinguishing Thomas's case from those in which defendants "stipulate or allocute to the drug quantity used to enhance [their] sentence[s]").
To the extent Grajales asserts that his attorney should have raised anApprendi-based challenge to his indictment's failure to plead drug quantity, this court finds that counsel cannot be labeled objectively unreasonable for not advancing an argument that would not have secured Grajales either the reversal of his conviction or any reduction in his total sentence. Indeed, for this same reason, Grajales cannot show that he was prejudiced by his counsel's representation.
Preliminarily, the court notes that Apprendi did not specifically hold that sentencing enhancing facts had to be pleaded in an indictment as well as proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. at 477 n. 3 (noting that no pleading challenge was raised by the parties). That conclusion was reached by the Second Circuit on December 12, 2001, eighteen months after Apprendi. See United States v. Thomas, 274 F.3d at 663 (holding that, after Apprendi, drug quantity was an element that had to be charged and proved beyond a reasonable doubt). Assuming that Grajales's attorney should have anticipated theThomas holding, his failure to amend his appellate brief to challenge the adequacy of the indictment in his client's case was still not unreasonable since he could not have satisfied the requirements for plain error relief discussed in Thomas.
In Thomas, the Second Circuit held that "a defendant's claim that he was sentenced for a crime not fully alleged in the indictment, in that the allegations in the indictment charged a lesser-included offense . . . is subject to plain error review . . . when asserted for the first time on appeal." 274 F.3d at 666. That would certainly have been Grajales's situation. Plain error review focuses on four concerns: (1) was error committed; (2) was the error plain; (3) did it affect substantial rights; and (4) did the error seriously affect the fairness, integrity, or public reputation of judicial proceedings. See id. at 667 (and cases cited therein).
The court first considers whether there was plain error in Grajales's indictment. An error is "plain" if it is "`so egregious and obvious' that a trial judge and prosecutor would be `derelict' in permitting it in a trial held today." Id. (quoting Johnson v. United States, 520 U.S. 461, 467-68 (1997)). In Grajales's case, the question is not easily answered. Although Count One does not plead a drug quantity in haec verba, the parenthetical citation immediately following the text expressly cites 21 U.S.C. § 841(b)(1)(A)(ii)(II), the statute providing for a ten-to-life term of incarceration in cases involving "5 kilograms or more of a mixture or substance containing . . . cocaine." Significantly, this court understands that no similar citation was included in the Thomas indictment. In United States v. Berlin, 472 F.2d 1002, 1008 (2d Cir. 1973), the Second Circuit held that citation to a statutory section would not necessarily cure an indictment that failed to allege all elements of an offense Cf., United States v. Hernandez, 980 F.2d 868, 871-72 (2d Cir. 1992) (holding that language in general caption of indictment could be read together with text of specific count to satisfy the requirement that all elements be pleaded). Berlin, however, involved a four-count indictment with citations to 18 U.S.C. § 1010 and 1014, statutes that identified all the elements of the charged crimes. See United States v. Berlin, 472 F.2d at 1005, 1008. An indictment's reference to such statutes may serve simply to identify the legal authority for those elements pleaded in the text, however incomplete. It is hardly obvious that such citation is intended to supplement a defective pleading with missing elements. In Grajales's case, however, the text of Count One pleaded all the elements of a general conspiracy to distribute or possess with intent to distribute cocaine as prohibited by 21 U.S.C. § 841 (a)(1), 846. In such a context, the only purpose conceivably served by the citation to 21 U.S.C. § 841(b)(1)(A)(ii)(II) was to alert defendant and his counsel to the quantity of drugs at issue and the attending sentencing consequences. Under these circumstances, it is difficult to conclude that there was an "egregious and obvious" error in charging drug quantity. Moreover, mindful that the parameters ofApprendi had hardly been explored at the time appellate counsel's conduct is at issue, this court cannot say that his failure to raise a plain error challenge to the pleading in this case ignored an "obvious" argument so as to render his representation objectively unreasonable.
Even if the indictment's failure to plead drug quantity in so many words did constitute plain error, however, that omission did not affect the fairness of petitioner's judicial proceedings. Before Grajales pleaded guilty, this court expressly advised him that "because of the quantity of cocaine that the Government believes was dealt," he faced a sentence "anywhere from a minimum of ten years in prison to a maximum of life imprisonment." Plea Trans. at 30. Grajales readily acknowledged understanding this fact, see id. at 31, and, in pleading guilty, he admitted dealing in more than the five kilograms of cocaine necessary to bring his case within 21 U.S.C. § 841(b)(1)(A)(ii)(II), see id. at 37. Unlike Thomas then, this is a case in which the court's pre-plea discussion of the possibility of an enhanced sentence, followed by defendant's sworn admission to the specific drug quantity that triggered the enhancement effectively refute any suggestion that a charging omission affected the fairness of Grajales's judicial proceedings. Cf., United States v. Thomas, 274 F.3d at 671 (holding that plain error did affect fairness of judicial proceedings since Thomas "did not stipulate or allocute to the drug quantity used to enhance his sentence," but rather "object[ed] to the District Court's use of the preponderance-of-the-evidence standard in determining quantity," thereby "squarely plac[ing] drug quantity at issue").
Grajales's case is further distinguishable from Thomas in that he cannot demonstrate that any Apprendi error affected his substantial rights; specifically, he cannot show that his 360-month sentence is longer than the total to which he would have been subject if his sentence on Count One had been imposed pursuant to 21 U.S.C. § 841(b)(1)(C), rather than 21 U.S.C. § 841(b)(1)(A)(ii)(II). In either case, his guideline range would have provided for a prison term of 360 months to life. As the Second Circuit explained in Thomas:
Our holding that drug quantity is an element of a § 841 offense does not preclude a district court from considering drug quantity in determining a defendant's relevant conduct for sentencing purposes pursuant to U.S.S.G. § 1B1.3(a) in cases where quantity is not charged in the indictment or found by the jury. . . .Id. at 663-64 (footnote omitted). of course, regardless of guideline range, a court may not sentence a defendant to a term in excess of a statutory maximum. See id. at 664. Thus, under § 841(b)(1)(C), the court could only have sentenced Graj ales to twenty years' imprisonment on Count One. But since he also pleaded guilty to Count Eight, this court would have been obliged to impose a consecutive term of at least ten years on that count to achieve the low end of the applicable guidelines.See U.S.S.G. § 5G1.2(d) ("If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment."). Such consecutive sentences would not implicate the constitutional rights discussed inApprendi. As the Second Circuit explained in United States v. White, 240 F.3d at 135, as long as a district court does "not exceed the maximum for any individual count," a defendant has "no constitutionally cognizable right to concurrent, rather than consecutive, sentences." For precisely this reason, a number of circuit courts have ruled that no prejudice flows from an Apprendi violation if, on remand, U.S.S.G. § 5G1.2 would require the imposition of consecutive sentences to achieve the same guideline-mandated term of imprisonment. See United States v. Angle, 254 F.3d 514, 518 (4th Cir.) (en banc), cert. denied, 122 S.Ct. 309 (2001); United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.) (same); cert. denied, 122 S.Ct. 182 (2001); United States v. Page, 232 F.3d 536, 544-45 (6th Cir. 2000) (same), cert. denied, 121 S.Ct. 1389 (2001). Since that is Grajales's case, appellate counsel's failure to raise an Apprendi challenge cannot be deemed either objectively unreasonable nor prejudicial.
To the extent the Supreme Court in Apprendi ruled that defendant's possible receipt of the same sentence through consecutive terms was irrelevant to the constitutional issues addressed, see Apprendi v. New Jersey, 530 U.S. at 474, 120 S.Ct. at 2354, this court notes, as the Sixth Circuit did in United States v. Page, 232 F.3d at 545, thatApprendi was not reviewed under the standard for plain error. Neither was U.S.S.G. § 5G1.2(d) a consideration.
Grajales's Sixth Amendment challenge to his conviction is rejected as without merit.
B. Failure to Challenge Upward Departure
Grajales further complains of appellate counsel's failure to challenge this court's "upward departure" on Count Eight. Specifically, he asserts that counsel should have complained of the court's failure to give notice of its intent to upwardly depart. See United States v. Burns, 501 U.S. 129 (1991).
As the government correctly argues, this court's concurrent twenty year sentence on Count Eight did not constitute an "upward departure" for which notice was required. Grajales's confusion apparently stems from his failure to understand that the guidelines for Count Eight were not calculated for that crime standing alone. Rather, pursuant to U.S.S.G. § 3D1.2(c), the money laundering conspiracy was grouped with the cocaine conspiracy. The Court was then required to impose concurrent,see U.S.S.G. § 5G1.2(c), or consecutive, see U.S.S.G. § 5G1.2(d), sentences on the two counts as necessary to achieve the applicable guideline sentence. Indeed, Commentary paragraph 3 to § 5G1.2 expressly notes that in those circumstances where one of the counts has "a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count," the court should sentence on all other counts "at the lesser of the total punishment and the applicable statutory maximum . . . made to run concurrently with all or part of the longest sentence." Since that is exactly what the court did, this was not a case involving any "upward departure," and counsel cannot be deemed constitutionally ineffective for failing to raise a claim of inadequate notice.
Insofar as the Supreme Court's decision in Apprendi and the Second Circuit's decision in Thomas might preclude a sentence of more than twenty years on Count One, paragraph 3 of the Commentary continues: "If no count carries an adequate statutory maximum, consecutive sentences are to be imposed to the extent necessary to achieve the total punishment."
Conclusion
For the reasons stated, this court finds that Grajales was not denied effective assistance of appellate counsel. His § 2255 motion is hereby denied, but he is granted a certificate of appealability on so much of his claim as faults counsel for not amending his brief to include an Apprendi challenge to his indictment.
SO ORDERED.