Opinion
CIVIL ACTION NO. 03-362 SECTION "K".
March 22, 2005
ORDER AND REASONS
Before the Court is defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody (Rec Doc. 18). The Court has reviewed the pleadings, memoranda, and the relevant law and finds that the petition is without merit.
PROCEDURAL HISTORY
On November 9, 2001, Alberto Almonte-Gomez ("Almonte") was charged with removability from the United States, subsequent to conviction for possession with intent to distribute in excess of 500 grams of cocaine, an aggravated felony. Almonte was deported to the Dominican Republic. Petitioner returned to the United States and on November 20, 2003 was charged by grand jury indictment with violating 8 U.S.C. §§ 1326(a) and (b), illegal reentry of deported alien previously convicted of an aggravated felony. On January 21, 2004, Almonte pleaded guilty, without the benefit of a plea agreement, to illegal reentry of deported alien as charged in the indictment. The Presentence Investigation Report ("PSR") was received by this Court on April 21, 2004. The PSR assigned a base offense level of 24 and recommended that the Court award three acceptance of responsibility points, noting that the Government had represented that it would move for an additional one point at sentencing pursuant to United States Sentencing Guidelines ("USSG") § 3E1.1. This Court adopted the PSR and Guideline Applications on April 28, 2004 and sentenced Almonte to a term of imprisonment of fifty months. Almonte did not appeal this judgment, but timely filed a § 2255 Motion to Vacate his sentence on September 1, 2004.
USSG § 3E1.1 provides:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
The applicable range guidelines range, based on the total offense level of 21 and criminal history category of III, was 46-57 months.
Almonte asserts that he received ineffective assistance of counsel because his attorney failed to secure a reduction of sentence pursuant to an "early disposition" program under USSG § 5K3.1 (2003). The Government argues that petitioner's claim must fail because there is no such early disposition or "fast track" program in the Eastern District of Louisiana. Petitioner, however, maintains that the fast track program of § 5K3.1 is binding legislative rule in this district.
STANDARD OF REVIEW
Ineffective assistance of counsel claims are analyzed under the standard established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed 2d 674 (1984). Strickland requires the defendant to show both that: (1) the trial counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Id. See also United States v. Mullins, 315 F.3d 449, 452 (5th Cir. 2002), Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001).
To satisfy the first prong of Strickland, a petitioner must prove that counsel's conduct fell below an objective standard of reasonableness. 466 U.S. at 687-688, 104 S.Ct. at 2064. Judicial review is highly deferential. Id. A court will judge whether counsel's acts or omissions fall within the range of professionally competent assistance based upon the facts of the particular case. Id. at 690, 104 S.Ct. at 2066. To prove prejudice under the second prong, a petitioner "must show 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, 104 S.Ct at 2068. The Strickland court defined a reasonable probability as a "probability sufficient to undermine confidence in the outcome." Id. A reviewing court may start with either component of the Strickland analysis, and is not required to reach the remaining question unless it finds that the defendant satisfied the first. Id. at 697, 104 S.Ct. at 2069.
ANALYSIS
Early disposition programs were statutorily authorized by Congress through direct amendment to the USSG by the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act, Pub.L. 108-21 ("PROTECT Act") of 2003. In order to effectuate the directive contained in § 401(m)(2)(B) of the PROTECT Act, the United States Sentencing Commission promulgated § 5K3.1, which states:
Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the District in which the court resides.
In September of 2003, the United States Attorney General issued a memorandum containing implementation principles for fast track departures to all United States Attorneys. See Memorandum From Attorney General John Ashcroft, United States Department of Justice, to All United States Attorneys (September 22, 2003) reprinted in 16 FED. SENT. REP. 134 (2003). This Memorandum outlines the requirements that are necessary for the United States Attorney's Office to gain approval from the United States Attorney General. After obtaining approval from the United States Attorney General, a United States Attorney may implement a fast track program whereby the Government can agree to move for a downward departure at sentencing in exchange for a plea agreement meeting certain criteria. See id.
As stated above, the Government argues that no such fast track program is authorized in the Eastern District of Louisiana. The petitioner provides no evidence to prove that a § 5K3.1 fast track program exists. The Court, upon independent review, finds no case or law to support the existence of a fast track program and was unable to obtain any information that such a program was authorized in the Eastern District of Louisiana. Because this Court finds no early disposition program was available, petitioner cannot satisfy the first prong of Strickland analysis — deficient performance by trial counsel.
In his Reply Memorandum, Petitioner argues that the Eastern District of Louisiana was bound to adopt a fast track program. However, the congressional directive authorizing § 5K3.1 fast track programs explicitly requires the approval of the United States Attorney General and the United States Attorney. The fact that an early disposition program may have been available in another district does not entitle Almonte to a downward departure in this district. See United States v. Calixto-Bravo, 2004 WL 2793245 (E.D. Mich. 2004) (discussing § 5K3.1). Furthermore, even if this district provided for early disposition, the language of § 5K3.1 provides that the Government, not defense counsel, would move for a downward departure. For these reasons, the motion must fail.
See also, United States v. Armento-Castro, 227 F.3d 1255, 1257 (10th Cir. 2000), United States v. Banuelos-Rodriguez, 215 F.3d 969, 978 (9th Cir. 2000), United States v. Bonnet-Grullon, 212 F.3d 692, 710 (2d Cir. 2000), cert. denied, 531 U.S. 911, 121 S. Ct. 261, 148 L.Ed.2d. 189 (2000).
Accordingly,
IT IS ORDERED that petitioner's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody is DISMISSED WITH PREJUDICE.