Opinion
99 Civ. 9093 (TPG), 97 Cr. 123 (TPG).
August 15, 2008
OPINION
Eduardo Caminero, a federal prisoner, has filed a petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Petitioner alleges that his sentence should be reduced because of ineffective assistance of counsel. The petition is dismissed.
Facts
On April 29, 1997, petitioner was indicted by a federal grand jury. The indictment charged petitioner and eleven other defendants with one count of conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. § 846.
Petitioner pled guilty to this charge on October 28, 1997 pursuant to a plea agreement. Caminero and his attorney each executed the agreement on the day of petitioner's plea. The agreement stipulated that the applicable guidelines offense level was 36. This level was calculated as follows:
Base of 36: base level for conspiracy to distribute and possess more than 10 but less than 30 kilograms of heroin
Plus 3: for defendant's role as a manager in the offense. The agreement stated: "Because the defendant was a "manager" in the charged criminal activity, an increase of three offense levels is warranted."
Minus 3: for defendant's acceptance of responsibility
Because Caminero stipulated in the agreement to entry of a judicial order of removal, the agreement also provided that this voluntary deportation warranted a one-level downward departure under § 5K2.0 as "conduct not contemplated by the guidelines." The agreement further stated that because Caminero had no previous convictions, his criminal history category was I. Thus, the agreement provided that the stipulated guidelines range, based on a final offense level of 35, was 168-210 months. The agreement stated that:
Based upon the assumptions and calculations set forth above (offense level 35 in Criminal History Category I), the Defendant's stipulated sentencing Guidelines range is 168 to 210 months. . . . The parties agree that neither a downward nor an upward departure from the Guidelines ranges set forth above is warranted. Accordingly, neither party will seek such a departure or seek any adjustment not set forth herein.
Finally, the agreement stated:
It is further agreed (i) the Defendant will neither appeal, nor otherwise litigate under Title 28, United States Code Section 2255, any sentence within or below the Stipulated Guidelines Range and (ii) the Government will not appeal any sentence within or above the Stipulated Guidelines Range. This provision is binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein.
Before accepting petitioner's plea on October 28, 1997, the Court conducted an allocution. Petitioner's counsel stated that after a lengthy discussion with petitioner, petitioner had authorized him to enter a guilty plea based on the plea agreement. The Court then asked petitioner whether he had signed a plea agreement with the Government that day, and whether he was satisfied with his counsel's representation and advice. Petitioner answered in the affirmative.
Petitioner was asked to state what he did to commit the offense, and made the following statement: "I, together with another person, participated to distribute heroin in the Bronx, from the year 1996 to January 1997." The Court then asked petitioner to confirm that there was more than a kilogram of heroin involved, and petitioner responded in the affirmative. Both the Government and the defense attorney agreed that this was a sufficient admission for the purposes of the guilty plea. The Court accepted the plea.
The Pre-Sentence Report (PSR) calculated petitioner's offense level as 36 with a Criminal History Category of I, creating a range of 188-235 months. The PSR noted that the plea agreement contained a provision for a one-level downward departure due to the voluntary deportation, but did not include this reduction in the stated guidelines range. The PSR described Caminero as a "high-ranking associate" of the head of the organization. The PSR stated that Caminero was involved in a large number of conversations with various co-defendants in which he engaged in detailed discussions of amounts and figures that related to quantities of narcotics distributed and sums of money. It also stated that it was believed that in some intercepted phone calls, other conspirators were reporting to Caminero. Neither the petitioner nor the Government objected to any information contained in the PSR.
In a letter addressed to the Court to supplement the PSR with a personal history of the defendant, defense counsel stated that "the defendant understands that he is bound by the plea agreement executed between him and the Government, and the defendant does not seek to have this letter interpreted as a motion for downward departure."
On October 7, 1998, petitioner was sentenced by the Court. At the sentencing, the Court asked petitioner's lawyer if he had gone over the PSR with his client. Petitioner's lawyer answered in the affirmative, and stated that there were no objections to the PSR except that the PSR's guidelines range did not include the one-point reduction for deportation. After discussing this issue, the Court agreed with the one-level downward departure, and accepted the 168-210 month stipulated range agreed to in the plea agreement.
The Court then gave petitioner the opportunity to speak. When petitioner stood up to speak, he gave a lengthy apology. He made no objection to the description of his managerial role in the plea agreement, made no objection tot he description of his role in the offense in the PSR, and made no attempt to discuss the PSR with the Court. The Court then sentenced Caminero to 168 months with 5 years of supervised release.
On July 29, 1999, within the statutory limitation period, the Southern District of New York's Pro Se Office received petitioner's original § 2255 petition. Petitioner filed an amended petition on February 28, 2001, withdrawing some of the claims made in the original petition. On October 8, 2003, the Court directed the Government to respond to the petition within 90 days, but did not receive a response. on April 13, 2007, the Court again directed the Government to respond, and the Government opposed the petition in a letter dated July 9, 2007. Petitioner has not submitted a reply.
Claims in the Petition
Petitioner alleges that his counsel was ineffective when he "allowed Caminero to stipulate to a managerial role in the plea agreement, despite counsel's knowledge that Caminero was merely a courier in the overall conspiracy." Specifically, the amended petition alleges that:
When Caminero inquired of counsel about this stipulation, he was told that at sentencing he (counsel) would argue to get the 3-levels taken off. This was a blatant misrepresentation. Counsel knew that if he stipulated tot he adjustment in the plea agreement, and the court accepted the plea, there would be no arguing the issue at sentencing. Caminero asserts that counsel's failure to properly advise defendant of the consequences of his plea, amounts to ineffective assistance of counsel.
Petitioner's second argument is that his counsel was ineffective because he failed to negotiate a plea agreement without the role stipulation. Petitioner argues that his counsel "could have easily argued that he was nothing more than a mule in the conspiracy." He further states that his counsel "failed to file any objections to the PSR, including an objection to role in the offense under 3B1.1." Petitioner alleges that at sentencing, his counsel did not object to the addition of the three levels for the managerial role. Petitioner contends that by the time of the sentence his counsel "had already bargained away any objection Caminero may have had in the plea agreement," and thus claims that:
had counsel negotiated a plea agreement that did not waive Caminero's right to contest the 3-level adjustment, there is a reasonable probability that his sentence would have been significantly less harsh.
Petitioner contends that this ineffectiveness resulted in a "specific, demonstrable enhancement in sentencing." He asks that his case be remanded for sentencing without the three-level adjustment, or in the alternative, that the case be remanded for an evidentiary hearing to determine whether counsel's deficient performance prejudiced him.
Discussion
Before addressing the merits of the claim, the Court must address whether the waiver language in the plea agreement bars this petition. The Government argues that the petition must be dismissed in its entirety because petitioner knowingly and voluntarily waived his right to pursue relief under 28 U.S.C. § 2255. However, since there is a claim of ineffective assistance of counsel, the Court will deal with the merits of the petition and will not hold that there has been a waiver.
As stated above, the petition asserts that counsel's performance was deficient for two reasons. The Court will first discuss the claim that petitioner's counsel was ineffective because he should have "negotiated a plea agreement that did not waive Caminero's right to contest the 3-level adjustment."
The plea agreement clearly stated that petitioner was stipulating to a managerial role. The petition acknowledges that petitioner was aware this stipulation was in the agreement and had discussed the inclusion of the provision with his counsel. With this understanding, petitioner chose to plead guilty and sign the plea agreement. At the plea, petitioner's lawyer stated that he had thoroughly discussed the agreement with petitioner, and petitioner did not deny this. Subsequently, the PSR discussed the Government's evidence concerning petitioner's role as a manager. At the sentence, petitioner's lawyer was asked if he had gone over the PSR with his client. Petitioner's lawyer answered in the affirmative, and said that there were no objections to the PSR except that the report did not make reference to the one-point reduction for deportation. In petitioner's lengthy statement at the sentence, petitioner gave no indication that he was ignorant of the PSR or that he had any objection to the description it contained.
Petitioner did not, at any time until the instant petition, deny the assertions in the plea agreement or the PSR. Petitioner went through the entire process without ever suggesting he was a mere mule and not a manager. Thus, there is no basis whatever for the claim that petitioner's counsel should have, or could have, negotiated a different plea agreement.
As to petitioner's claim that his counsel told him he would argue to get the three-level enhancement stricken at sentencing, the record contains undisputed evidence that petitioner was a manager. Thus, there would have been no basis for the Court to have disregarded this evidence at the sentence.
At most, this claim of ineffective assistance is an argument that his counsel incorrectly suggested to him that the role stipulation could be stricken for sentencing purposes. However, the Second Circuit has held that predictions made by counsel as to what the ultimate sentence will be are not sufficient basis for vacating a guilty plea. See United States v. Arteca, 411 F.3d 315, 321 (2d Cir. 2005); United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989). Even though petitioner's allegation here is slightly distinct — petitioner argues that counsel misled him about what he was allowed to argue at sentencing — the same logic applies.
Ultimately, the record shows that petitioner knew the managerial role stipulation was in the plea agreement, pled guilty despite the inclusion of the provision, and made no objection to the provision or the PSR at either the plea or the sentencing.
Conclusion
For the above reasons, the petition is dismissed.
As petitioner has not made a substantial showing of the denial of a constitutional right, a Certificate of Appealability will not issue. See 28 U.S.C. § 2253(c). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal taken from this decision would not be taken in good faith.
SO ORDERED