Opinion
01-CV-2440 (ILG).
March 27, 2002.
BACKGROUND
Petitioner Elio Remache ("Remache" or "petitioner"), proceeding pro se, has filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate his judgment of conviction and sentence. On February 4, 1998, Remache was convicted after ajury trial of conspiracy to distribute and to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846 and 841(b)(1)(A). On February 5, 1999, Remache was sentenced to 188 months' imprisonment, to be followed by five years of supervised release. Remache timely appealed the judgment of conviction and sentence, which was affirmed by the Court of Appeals on December 16, 1999. Remache was represented by the same counsel at sentencing and on direct appeal.
Remache now moves to vacate his conviction and sentence, claiming that (1) he was denied effective assistance of counsel by his attorney's failure to object to the inclusion of a New York misdemeanor conviction as a basis for enhancement of his criminal history; and (2) based onApprendi v. New Jersey, 530 U.S. 466 (2000), his conviction is invalid because the issue of drug quantity was not charged in the indictment or submitted to the jury to be proved beyond a rseasonable doubt. Remache also claims that the criminal statutes under which he was charged and convicted, 21 U.S.C. § 841 and 846, are unconstitutional in light ofApprendi, and that the Court should hold an evidentiary hearing to consider his claims. For the reasons that follow, petitioner's motion is denied.
DISCUSSION
I. Petitioner's Counsel Did Not Provide Ineffective Assistance at Sentencing
Petitioner's ineffective assistance of counsel claim is properly raised for the first time in his Section 2255 motion. Billy-Eko v. United States, 8 F.3d 111, 114-16 (2d Cir. 1993). The only time such claims must first be raised on direct appeal is when a defendant is represented by different counsel on appeal and the claims are "based solely on the record developed at trial." Id. Neither of these two exceptions apply in this case, and therefore the Court will review the ineffective assistance of counsel claim on the merits.
To prevail on ai claim of ineffective assistance of counsel, a petitioner must show (1) that his lawyer's performance "fell below an objective standard of reasonableness," and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Wash.. 466 U.S. 668, 688, 692, 694 (1984). This right to the effective assistance of counsel applies to all critical stages of the criminal proceeding, including sentencing. Mempa v. Rhay, 389 U.S. 128, 134 (1967); Janvier v. United States. 793 F.2d 449, 451 (2d Cir. 1986). In considering an ineffective assistance claim, 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.'"United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quotingStrickland, 466 U.S. at 689). "Actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance." Keser v. N.Y., 56 F.3d 16, 18 (2d Cir. 1995) ( per curiam) (internal quotation marks and citation omitted). Remache cannot meet either prong of the Strickland standard.
Remache argues that his counsel was ineffective at sentencing because he did not object to the inclusion of one point in the calculation of his criminal history category for his prior misdemeanor offense of Unauthorized Use of a Vehicle. Had petitioner not received the additional point for this prior crime, his criminal history category would have been reduced to criminal history categdry II, reducing his Sentencing Guidelines range from 188 to 235 months to a range of 168 to 210 months. Thus, he argues that he would have received a sentence less than 188 months.
The probation department's pre-sentence investigation report ("PSR") recommended a base offense level of 36 pursuant to U.S.S.G. §§ 2D1.1(a) and 2D1.1 (c), because the offense involved between 10 and 15 kilograms of heroin. The PSR also indicated that petitioner had two prior crimes, including the Unauthorized Use of a Vehicle in 1989 and Criminal Possession of Stolen Property in 1990. Each of these crimes received one criminal history point. Petitioner received two additional criminal history points pursuant to U.S.S.G. § 4A1.1 (d), because the instant drug offense was committed while petitioner was on probation. Thus, the total of petitioners s criminal history points was 4, placing him in criminal history category III. See U.S.S.G. Table.
After the probation department issued its report, petitioner's newly appointed counsel, James Neville, wrote three separate letters to the Court, challenging the PSR's recommended base offense level of 36. Neville persuasively argued that his client's base offense level should be 32, or, at the most, 34, and that the Court should consider the testimony of trial witnesses concerning drug quantity attributable to petitioner as opposed to the estimations of federal agents. See Letters dated December 3, 1998, January 11, 1999, and January 21, 1999. Despite counsel's objection, the probation department maintained its recommended base offense level, in an addendum to the PSR. Based on Neville's letters and this Court's own examination of the issue, this Court ultimately declined to accept the PSR's and the government's base offense level calculation, and conclUded that a base offense level of 34 was appropriate. Thus, petitioner's base offense level of 34, with a criminal history category of III, provided a Guidelines range of 188 to 235 months. Petitioner's 188 months sentence was thus at the bottom of that range.
Neville was assigned to represent Remache after trial but before sentencing.
Despite the fact that counsel persuaded this Court to reduce petitioner's base offense level, thereby exposing him to a lesser Guidelines range, petitioner argues that counsel rendered ineffective assistance by failing to object to his criminal history category. The Guidelines provides that all misdemeanor offenses are counted as prior crimes in calculating criminal history unless it is listed in Section 4A1.2 (c)(1) or is similar to those crimes listed, and either (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to the instant offense. U.S.S.G. § 4A1.2 (c)(1). Misdemeanor and petty crimes listed in Section 4A1.2 (c)(2) are never counted, regardless of the sentence imposed. U.S.S.G. § 4A1.2 (c). The government contends that petitioner was not prejudiced by counsel's failure to object, because the crime of Unauthorized Use of a Vehicle is not listed in either subsection 4A1.2 (c)(1) or 4A1.2 (c)(2) and, therefore, it must be counted in defendant's criminal history. Petitioner argues that his prior misdemeanor offense, for which he received a conditional discharge, is an offense which is similar to the offenses listed in subsection (c)(1) and, therefore, should have been excluded.
Subsequent to petitioner's sentencing, the Second Circuit decidedUnited States v. Martinez-Santos, 184 F.3d 196 (2d Cir. 1999). in which it adopted the Fifth Circuit's five step analysis for determining whether a prior misdemeanor offense is similar to an offense listed in Section 4A1.2 (c)(1)(A). Id. at 205-06. In United States v. Hardenman, the Fifth Circuit directed that courts were to evaluate (1) the similarity of the offense elements; (2) the comparative punishments imposed for the offenses; (3) the perceived seriousness of the unlisted offense, as indicated by the level of punishment; (4) the level of culpability associated with the unlisted offense; and (5) the degree to which the commission of the unlisted offense indicates a likelihood of recurring criminal conduct. 933 F.2d 278, 281 (5th Cir. 1991); Martinez-Santos, 184 F.3d at 200. Indeed, at the time of petitioner's sentencing, neither defense counsel nor the Court had the benefit of Martinez-Santos. When reviewing the offenses in Section 4A1.2 (c)(1)(A), it is clear that Unauthorized Use of a Vehicle is not listed. Whether that offense is "similar" to any of the listed offenses, the Court cannot say one way or the other without performing a fairly in depth comparative analysis. However, as noted above, no such analysis was required at the time of petitioner's sentencing. Looking generally at the list of offenses, the most similar offense to driving without authorization appears to be driving without a license or with a revoked or suspended license; however, a simple comparison of Remache's offense with that offense does not leave this Court with a significant impression as to whether they are "similar." As counsel's performance must be viewed at the time of the challenged conduct, Strickland, 466 U.S. at 690, this Court cannot conclude that counsel's tactical decision to pursue what proved to be a meritorious argument as to petitioner's base offense level, and not a speculative argument concerning his criminal history category, was objectively unreasonable. See Pena v. United States, No. 97-CV-2836, 2000 WL 1568322, at *2 (S.D.N.Y. Oct. 20, 2000) (petitioner claimed ineffective assistance based on counsel's failure to challenge inclusion of prior misdemeanor offense under Section 4A1.2 (c)(1)(B) for crimes similar to the instant offense; court declined to find that counsel was ineffective because Martinez-Santos had not been decided at time of sentencing, and it was unclear whether Martinez-Santos would apply to subsection (c)(1)(B)); cf. Rosenfeld v. United States, 972 F. Supp. 137, 147 (E.D.N.Y. 1997) (counsel's silence as to sentence enhancement represented objectively reasonably strategic decision to raise only meritorious issues at sentencing).
Moreover, petitioner cannot show that he was prejudiced by counsel's decision not to challenge his criminal history category, because there is no reason to believe that he would have received a different sentence than 188 months. As noted above, the Guidelines range for a base offense level of 34 and a criminal history category II is 168 to 210 months. Petitioner's sentence of 188 months falls within that Guidelines range. Petitioner has stated no basis for his conclusion, except for his own speculation, that he would have received a shorter sentence had his Guidelines range been 168 to 210 months. Accordingly, petitioner cannot show that his sentence would have been different had counsel successfully challenged his criminal history category.
II. Petitioner's Apprendi Claims Meritless
The Supreme Court has not yet decided whether the new rule announced in Apprendi may be applied retroactively to cases on collateral review. See Forbes v. United States, 262 F.3d 143, 146 (2d Cir. 2001) (denying second or successive application because Supreme Court has not yet stated that Apprendi may be applied retroactively to habeas cases; however, making no intimation as to retroactive effect in context of a first habeas petition). Courts which have addressed the issue have taken various approaches to the retroactive application of Apprendi. Because Remache's Apprendi claims are patently frivolous, this Court need not determine the retroactive effect of Apprendi in this case.
Petitioner's argues that his sentence is invalid in light of Apprendi, because the issue of drug quantity was not charged in the indictment or presented to the jury to be proved beyond a' reasonable doubt. Petitioner's claim is without merit Apprendi holds 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 (emphasis added). Petitioner was convicted under 21 U.S.C. § 846 and 841(b)(1)(A), which carries a maximum term of life imprisonment. The catch-all provision of the statute is Section 841(b)(1)(C), which does not require a minimum quantity of drugs for that section to apply. The maximum penalty under the catch-all section is twenty years, in most cases. 21 U.S.C. § 841(b)(1)(C). Here, petitioner's sentence of 188 months is less than the statutory maximum of twenty years. Thus, because petitioner did not receive a sentence beyond the statutory maximum, hisApprendi claims must be rejected. United States v. Thomas. 274. F.3d 655, 664 (2d Cir. 2001) ("The constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction."); United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001) ("Apprendi does not alter a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum. . . .").
Because petitioner does not present a cognizable Apprendi claim, there is no need for this Court to address his challenge to the constitutionality of Sections 841 and 846. In addition, petitioner's request for an evidentiary hearing must be denied because his claims are "patently frivolous." Blackledge v. Allison, 431 U.S. 63, 76 (1977) (quoting Herman v. Claudy, 350 U.S. 116, 119 (1956)).
CONCLUSION
For the foregoing reasons, petitioner's Section 2255 motion is denied.
SO ORDERED.