Opinion
06 Civ. 333 (DLC), 04 Cr. 1186 (DLC).
March 1, 2007
For Petitioner: Hector Santiago, Pro Se, Atlanta, GA.
For Respondent: Michael J. Garcia, United States Attorney, John J. O'Donnell, Assistant United States Attorney, United States Attorney's Office for the Southern District of New York, New York, NY.
OPINION ORDER
Hector Santiago ("Santiago") has filed a petition pursuant to Title 28, United States Code, Section 2255 to vacate his sentence, which was entered on June 8, 2005, following a guilty plea and pursuant to a plea agreement with the Government. For the following reasons, the petition is denied.
Background
Santiago was arrested on June 18, 2004, by New York City police officers who were searching for Santiago to arrest him based on two outstanding warrants and because he was a suspect in a robbery. When they located him, he fled and threw a gun to the ground in the ensuing chase. The gun was a .9 mm semi-automatic handgun loaded with eight rounds of ammunition. Santiago had 145 ziplock bags with seven grams of crack when he was caught and arrested. Following a waiver of Miranda rights, he admitted that he was running a crack distribution crew of eleven people operating over four to five blocks in the Bronx, sold over 250 grams of crack per week, had bought six guns in the last fourteen months, and had just three days earlier bought the gun that he threw away during the chase.Santiago was indicted on November 4 in three counts with possession with intent to distribute of seven grams of crack cocaine on June 18, 2004, in violation of 21 U.S.C. § 841(b)(1)(B); use of a loaded handgun during a drug trafficking crime that same day, in violation of 18 U.S.C. § 924(c); and possession on that day of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g). Among other prior convictions, Santiago had been convicted in 1999 with attempted criminal possession of a loaded firearm in the third degree; in 1997 with criminal sale of a controlled substance in the fifth degree; and in 1993 with criminal sale of a controlled substance in the third degree.
Santiago was provided with a plea agreement dated December 8, which he and his attorney signed on January 13, 2005. The agreement reflected that the Government would accept a plea to the first and third counts, and dismiss the Section 924(c) count if the defendant agreed to allocute to the crimes charged in those two counts and also that on January 8, 2004 he possessed with intent to distribute 2 grams of crack. With such an allocution the Government also committed that it would not prosecute Santiago further for the January 8 possession of crack. The agreement calculated Santiago's offense level as 31, his criminal history category as VI, and his sentencing guidelines range as 188 to 235 months' imprisonment. The parties agreed that no downward or upward departure from the guidelines range was warranted and that neither would seek such a departure. The agreement acknowledged that neither the Probation Department nor the Court were bound by the agreement. Of particular importance to this petition, the defendant agreed
That the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Guidelines Range set forth above (188 to 235 months).
After the date the agreement was drafted by the Government and just the day before it was executed by the defendant, the Supreme Court issued its decision in United States v. Booker, 543 U.S. 220 (2005), making sentencing guidelines advisory rather than mandatory to cases in which judgment was not yet final when theBooker decision was issued.
On February 4, 2005, the defendant entered his plea before this Court to counts one and three, and also allocuted to possession of two grams of crack in early 2004 with intent to distribute it. Santiago was represented by experienced and able assigned counsel. He indicated that he was satisfied with his attorney. He acknowledged understanding each of the rights that he was waiving, the penalties he was facing, and that no one could predict to him what his sentence would be. In the course of questioning about the plea agreement, the parties acknowledged that the agreement did not address the Booker decision and its ramifications. The Court observed that the document did not reflect the parties' agreement that the stipulated sentencing guidelines range was a reasonable sentence. The defendant acknowledged that he had read and discussed the agreement with his attorney before signing it. His attorney pointed out that the defendant had the right to ask for a non-guidelines sentence that was less than 188 months; the Government contended that the defendant had waived that right. The Court noted the parties' disagreement on the issue. The defendant next acknowledged that he understood that "by signing this agreement, [he had] given up [his] right to appeal, challenge or litigate [his] sentence in any way so long as [the Court did not] sentence [him] to more than 235 months."
In a four page submission of May 25 (not counting attachments), the defendant moved for a non-guidelines sentence of less than 188 months pursuant to 18 U.S.C. § 3553(a). At the sentencing proceeding on June 8, the Court imposed a sentence of 188 months, which was at the lowest end of the guidelines range. It noted the defendant's argument that the sentence should be no greater than necessary to achieve the goals and purposes of sentencing. See 18 U.S.C. § 3553(a). The Court explained the reasons for the sentence it imposed by referring to the defendant's admissions at his arrest about his role in running a drug spot and the guns he had purchased; by commenting on the defendant's criminal history and the periods of incarceration he had already served; and by noting his possession of a loaded weapon at his arrest. While noting that the guidelines range was high, the court found it to be appropriate in light of his substantial criminal record and the offenses of conviction. Finally, the Court referred to the defendant's age and likely age at release from prison. At the conclusion of the proceeding, the Court advised the defendant:
I know of no grounds for appeal, but I must advise you of the following. If you are unable to pay the costs of appeal, you may apply for leave to appeal in forma pauperis. A notice of appeal must be filed within ten days of the judgment of conviction.
Santiago did not appeal. On January 17, 2006, Santiago filed this timely petition, seeking to be resentenced with the Court considering the factors set out in 18 U.S.C. § 3553(a). He contends that (1) he was denied effective assistance of counsel because counsel failed to negotiate a more favorable plea agreement for him in light of Booker; (2) his plea was not knowing and voluntary; and (3) the Court did not consider the factors in 18 U.S.C. § 3553(a) in imposing sentence. Santiago argues that his attorney should have been able to negotiate an agreement with the Government that did not reflect a career offender designation since his prior offenses involved small amounts of drugs or arose from a time when he was an adolescent. He contends his plea was not knowing and voluntary because he was not sufficiently advised of the impact of the Booker decision on his sentence.
Although Santiago makes reference to vacating his plea, when read in its entirety it is clear that he is seeking to be resentenced, and does not seek to withdraw his plea or otherwise lose any benefit he achieved from the plea agreement.
The Government opposed the petition. It argued that the petition is barred by Santiago's waiver of his right to seek collateral relief to attack his sentence; procedurally barred because of his failure to appeal; and meritless. It pointed out that Santiago received several significant benefits from his plea agreement, including the Government's agreement to dismiss the Section 924(c) charge, which carried a five year mandatory minimum consecutive sentence; the Government's agreement not to file a second felony offender information, which carried a ten year mandatory minimum term of imprisonment; and the avoidance of trial, which would have resulted in a guidelines range of 360 months' to life imprisonment if Santiago were convicted on all three counts.
To address the Government's argument that he was barred from bringing this petition by his failure to appeal his sentence, Santiago moved on September 26, 2006 to amend his petition to add a claim that he did not appeal because his attorney dissuaded him from filing an appeal and because the Court told him that he had no appealable issues. Specifically, Santiago contends that his attorney did not advise him of the "full significance" of the career offender provision in the plea agreement or evaluate the prior convictions used to compute his criminal history and career offender status; he did not fully understand at the time of his plea that he could ask for a sentence of less than 188 months; and that following sentence, when he advised his attorney that he wanted to appeal, he was dissuaded by counsel, who told him that the judge had just told him that there were no apppealable issues, and that the judge was "in essence telling him that he could not appeal."
Discussion
It is unnecessary to consider most of the issues raised by Santiago and the Government since Santiago's sentence was imposed after full consideration of defense counsel's request that he receive a non-guidelines sentence. It is assumed for purposes of this discussion that the petition is not barred: either by his failure to appeal, or by his waiver in his plea agreement of his right to file a Section 2255 petition to challenge his sentence.
Stripped to its essence, Santiago seeks the right to be resentenced with full consideration of the Section 3553(a) factors and without the sentencing guidelines being considered mandatory. Santiago received such a sentence. His attorney preserved his right to move for a non-guidelines sentence at the time that Santiago entered his plea. In advance of sentence, his attorney moved for a non-guidelines sentence. At sentence, his attorney again argued for a non-guidelines sentence and the Court acknowledge that to be his argument. The Court then imposed a sentence, which although it fell within the guidelines range, followed consideration of all of the arguments made by defense counsel and was accompanied with an explanation for its length. See United States v. Williams, ___ F.3d ___, 2007 WL 241296, at *6 (2d Cir. Jan. 30, 2007). As the record of the sentencing proceeding illuminates, the Court did not consider the guidelines to be mandatory or its hands to be bound in any way by the agreement between the parties as to the guidelines range.
Conclusion
Santiago's petition to vacate his sentence is denied. Additionally, Santiago has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Further, pursuant to 28 U.S.C. § 1915(a)(3), any appeal taken from this Order would not be in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.
SO ORDERED: