Opinion
No. CV-89-2747.
November 16, 1989.
Luis Fernando Agudelo, Ray Brook, N.Y., pro se.
Daniel F. DeVita, Asst. U.S. Atty., Brooklyn, N.Y., for respondent.
MEMORANDUM AND ORDER
The petitioner seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2255. He asserts eight grounds in support of that relief each of which will be addressed. Prior to doing so, however, it should be noted that the petitioner was charged with three counts in an indictment which alleged that he conspired to distribute and possess with intent to distribute cocaine; that he, on a specific date, knowingly and intentionally possessed with intent to distribute more than 5 kilograms of cocaine, and that he also knowingly and intentionally possessed with intent to distribute more than 500 grams of cocaine. Thereafter, he pleaded guilty to a one count superseding information which charged him with possessing with intent to distribute on March 17, 1988 an unspecified amount of cocaine, thus obviating a minimum sentence of 10 years which would have been statutorily mandated had he been convicted of the offenses charged in the underlying indictment. He was sentenced on August 10, 1988 to a term of 84 months, plus 3 years supervised release, plus a special assessment of $50.
The first ground asserted by the petitioner is that the offense level computation was erroneously adjusted by adding 2 points for the loaded, stolen handgun seized in his apartment at the time of his arrest. Such an adjustment was entirely appropriate in accordance with § 2D1.1(b)(1) of the Sentencing Guidelines. See also, McMillan v. Pennsylvania, 477 U.S. 79, 92, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67 (1986). His assertion that the adjustment was erroneous for the reason that the gun was not specifically listed in the warrant as an object of the search of his apartment can only be construed as a belated attempt to suppress the seizure of that gun and its introduction in evidence had he gone to trial. Having pleaded guilty, the petitioner waived any claim he could have made regarding the validity of that seizure.
The second ground asserted is that prior to being interviewed by the Probation Department for purposes of a presentence report, the petitioner was not advised of his Fifth Amendment rights. The assumption underlying this assertion, namely, that Miranda warnings must be given by the interviewing probation officer is erroneous. See Brown v. Butler, 811 F.2d 938, 940 (5th Cir. 1987) (By pleading guilty, Brown waived his fifth amendment privilege); Baumann v. United States, 692 F.2d 565, 576 (9th Cir. 1982) (the general principles announced in Miranda do not "require that a convicted defendant be warned of his right to counsel and his right to remain silent prior to submitting to a routine, authorized presentence interview); United States v. Jackson, 886 F.2d 838 (7th Cir. 1989). But see United States v. Chitty, 760 F.2d 425, 431-32 (2d Cir. 1985).
In Chitty, the defendant challenged his sentence claiming that the sentencing proceeding was tainted by the prosecutor who presented evidence of Chitty's statements made during a pretrial psychiatric examination to determine his competency to stand trial. The challenge was predicated upon the assertion that Chitty was not warned of his Miranda rights prior to the psychiatric examination and that sentencing consideration given to a statement made to the psychiatrist violated his Fifth Amendment right. The Second Circuit Court held that Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) was controlling and precluded reliance at sentencing on statements made by Chitty under the circumstances of his court-ordered competency examination.
Chitty's reliance upon and application of Estelle was appropriate, but does not require that result here. In each of those cases the defendant was the subject of a court-ordered psychiatric examination to determine competency to stand trial and in each it was the government's use of the defendant's statement made during the psychiatric examination that the Court determined to be unconstitutional. In Estelle, the Court was careful to note that "we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination." (emphasis added) 451 U.S. at 469, n. 13, 101 S.Ct. at 1876 n. 13.
The distinction between Chitty, Estelle and this case thus becomes apparent. A federal probation officer is an arm of the court and not an agent of the government qua prosecutor. The probation officer's role in the sentencing process is not an adversarial one. Rather, he acts as a neutral gatherer of information from many sources to be used by the judge in imposing sentence. The appropriate sentence to be imposed rests exclusively with the judge and is the expression of an independent discretion and judgment based upon a variety of factors concerning the person of the defendant and the circumstances surrounding the commission of the crime. The holdings in Estelle and Chitty based upon pretrial statements made by the defendants to a psychiatrist are not transferrable either on the facts or the law to the use of this defendant's post-conviction statement to a probation officer who is discharging his responsibility to prepare a neutral and nonadversarial presentence report.
The third ground asserted is that the petitioner's offense level should have been reduced by two points for acceptance of responsibility and two points for his role in the offense. Page 2 of the minutes of the sentencing proceeding clearly reflects that two points were deducted for acceptance of responsibility. There is no basis for reducing the offense level further for the petitioner's role in the offense. Indeed, in the light of his vehement denial of responsibility as recounted in paragraph 12 of the presentence report, the reduction that was granted may appropriately be regarded as an act of grace.
The fourth ground asserted is that the sentence imposed was predicated in part upon erroneous information. The petitioner construes a portion of the court's remarks at the time of imposing sentence that he was believed to have personally sold cocaine and that that allegedly erroneous belief contributed to the severity of his sentence. A reading of the transcript makes readily manifest the tortured construction of the excerpt quoted.
The fifth ground asserted is that the petitioner was not accurately informed of the "correct" penalties he faced by pleading guilty. The transcript of the plea allocution indicates that the petitioner was advised that he could be sentenced "anywhere from zero up to twenty years" (Tr. p. 9). The inaccuracy alleged is that implicit in that statement is that a sentence of probation is a possibility whereas a sentence of probation was explicitly precluded where the crime of conviction was a class B felony. The sentence of which the petitioner was advised was provided for in 21 U.S.C. § 841(b)(1)(C). Rule 11(c)(1) requires a court to apprise the defendant only of the statutory minimum and maximum penalties faced, not what the likely sentence under the Guidelines will be. The court "was not required to calculate and explain the Guidelines sentence . . . before accepting the plea, for, once appellant was informed of . . . the maximum and the minimum sentences — the requisites of Rule 11 were met. . . ." United States v. Fernandez, 877 F.2d 1138, 1143 (2d Cir. 1989). The petitioner's additional contention that he was inaccurately advised regarding supervised release is without merit as are his assertions in grounds six through eight.
It is significant to note that the petitioner's assertions proceed upon the assumption that he was sentenced under the Guidelines. This court had previously taken the position that the Guidelines were unconstitutional and prior to the decision in United States v. Mistretta, ___ U.S. ___, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) uniformly sentenced in accordance with the pre-Guidelines law and did so in this case as well. The petitioner's assertions are, therefore, based upon an erroneous premise and are without merit.
For the foregoing reasons the petition is dismissed.
SO ORDERED.