years of imprisonment, and that his lawyer had made no prediction and had expressed no opinion as to his sentence. This last point alone vitiates the petitioner's claim that he was misadvised about what factors the court could consider at sentencing: The court asked the petitioner whether his lawyer had opined about his sentence, and the petitioner indicated that no opinion had been given. But that answer is fundamentally inconsistent with petitioner's newer claim that his attorney advised him that the sentencing court would not consider the constructive possession of 138 kilograms of cocaine: Clearly, that remark of counsel -- if it had been made -- would only have been relevant to the petitioner's thinking to the extent that it affected his probable sentence. As such, the contention raised now by petitioner that his lawyer had misinformed him about his sentencing cannot be reconciled with the statements that the petitioner made to the court at the time of his guilty plea.
And, finally, even if his lawyer had in fact told the petitioner that the court would not consider the allegations about the petitioner's constructive possession of 138 kilograms of cocaine, the petitioner was fully apprised of the relevant sentencing range. Unlike the defendant in Rodriguez-Luna, this petitioner was simply sentenced to the maximum of the statutory range; the defendant in Rodriguez-Luna had in fact been sentenced in the middle of a guidelines range that was considerably higher than the range his attorney had led him to believe was applicable. Because Judge Bramwell made clear to the petitioner that he could be sentenced for fifteen years of imprisonment, any possible misguidance by his attorney could not have affected the petitioner's reasonable expectations about sentencing. In other words, although the petitioner may have hoped for a lesser sentence, his representations to Judge Bramwell -- and Judge Bramwell's representations to him -- ensured that the sentence he did receive was not beyond the range that the petitioner reasonably anticipated when he entered his guilty plea.
2. The Term of Special Parole
Second, the petitioner argues that the sentencing court unlawfully imposed on him a twenty-year term of special parole. The petitioner correctly points out that the second count of the indictment -- the count to which he pleaded guilty -- was predicated on his possession of three kilograms of cocaine. As such, he argues, he should have been sentenced with reference to 21 U.S.C. § 841(b)(1)(A) rather than with reference to 21 U.S.C. § 841(b)(1)(B). Section 841(b)(1)(A) is ostensibly designed to provide harsher penalties for drug offenders whose crimes involve transactions with certain quantities of specific drugs; by contrast, Section 841(b)(1)(B) provides lesser penalties for offenders whose illegal transactions involve smaller amounts of drugs. By a twist of legislative fate, however, Section 841(b)(1)(A) -- the harsher penalty provision -- did not provide for the imposition of terms of special parole either at the time that this petitioner committed his offense or at the time that he was sentenced by Judge Bramwell. Petitioner thus argues that because the amount of cocaine of which he admitted possession satisfied the threshold for the harsher penalty provision of Section 841(b)(1)(A), he should have been sentenced under that section. As such, he argues, the sentencing court was not authorized to impose on him any term of special parole.
The petitioner does not and cannot, however, dispute that because the amount of cocaine that he possessed satisfied the quantitative minimum of Section 841(b)(1)(A), it necessarily satisfied as well the lower quantitative minimum of Section 841(b)(1)(B). Further, he does not dispute that the count of the indictment to which he pleaded guilty specifically invoked the sentencing provision of Section 841(b)(1)(B) -- not that of Section 841(b)(1)(A). But it is precisely the charge of the indictment that is dispositive. It is "the charge to which he pleaded guilty . . . [that] determined the sentence to be imposed" on the petitioner. United States v. De La Torre, CR-86-0928 (E.D.N.Y. Aug. 29, 1989).
In this regard, United States v. Crockett, 812 F.2d 626, 629 (10th Cir. 1987), does not support the position for which the petitioner cites it. Crockett involved an attempt by the government to have the defendant sentenced under the harsher penalty provision. As with the petitioner here, the defendant in Crockett had pleaded guilty a charge of possession of drugs -- but, as here, that charge did not allege the quantitative minimum necessary to apply a harsher penalty provision. For that reason, the court held that the defendant could only be sentenced to the lesser penalty -- the penalty applicable to the count for which he had pleaded guilty. The only difference between Crockett and this case is that the defendant there argued for the more lenient penalty provision whereas the petitioner here argues for the harsher statute. But that harsher penalty provision is equally inapplicable to both cases.
Because the petition is meritless, an evidentiary hearing is not warranted, and summary dismissal of the petition is appropriate. The petition is hereby dismissed.
Dated: Brooklyn, New York
April 13, 1992
I. Leo Glasser, U.S.D.J.
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