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CASTANO v. UNITED STATES

March 30, 1995

NELSON CASTANO, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.,

 Pursuant to 28 U.S.C. § 2255, pro se petitioner Nelson Castano brings the instant petition to vacate and correct his sentence. In his petition, Castano argues that the Court misapplied the United States Sentencing Guidelines ("U.S.S.G. or the "Guidelines"). For the reasons that follow, the petition is denied.

 BACKGROUND

 At all times pertinent to this action, Luis Hernandez operated as a confidential informant for the Drug Enforcement Administration ("DEA"). On May 26, 1989, Hernandez and Ramon Padilla met unexpectedly on the corner of 138th Street and St. Ann's Avenue in the Bronx. Trial Transcript ("Tr.") 75-77. During the course of the meeting, Padilla indicated that his connection could supply Hernandez with two kilograms of cocaine. Id. Shortly thereafter, Hernandez, Padilla and another individual, known as Ralphie, proceeded to a grocery store located at 214 St. Ann's Avenue. Id. at 77-79.

 At the grocery store, Hernandez was introduced to Basilio Vasquez and Rodrigo Vasquez. Tr. 79. While Rodrigo Vasquez tended to other matters, Basilio Vasquez, Hernandez, Padilla and Ralphie proceeded to the back of the store. Id. at 81. In the back, Ralphie explained to Basilio Vasquez that Hernandez wanted to purchase two kilograms of cocaine. Id. at 81-83. Basilio Vasquez then informed Hernandez that the two kilograms of cocaine would cost $ 32,000 and that a few hours would be necessary to execute the deal. Id. at 83.

 Hernandez returned to the grocery store a short time later. Tr. 84. At the store, Basilio Vasquez, Rodrigo Vasquez, Padilla and Ralphie were present, but the cocaine had not yet arrived. Id. Shortly thereafter, the supplier connection telephoned the store and assured Hernandez that the deal would occur as quickly as possible. Id. at 87-88. Then, at approximately 6:00 p.m., Castano and Raul Morales entered the store, with Castano carrying a shopping bag containing two packages. Id. at 89-91. After greeting Rodrigo Vasquez, Castano and Morales proceeded to the back of the store with Basilio Vasquez. Id. at 89-90. In the back of the store, Hernandez was shown the two packages, one of which he inspected and identified as cocaine. Id. at 92. At that point, Basilio Vasquez advised Hernandez that the initial transaction would involve only one package. Id. Basilio Vasquez further advised Hernandez that if the initial deal were successful, they would return to the grocery store and deal with the second package. Id.

 On October 5, 1989, Nelson Castano was convicted of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846. On December 19, 1989, the Court sentenced Castano to a term of imprisonment of 82 months, a term of supervised release of four years, and $ 100 in mandatory special assessments. On February 19, 1991, the Court denied Castano's motion for a new trial. On January 13, 1992, the Second Circuit affirmed the conviction by summary order. See United States v. Castano, Nos. 90-1043, 91-1136 (2d Cir. Jan. 13, 1992). *fn1"

 On April 27, 1993, Castano filed the instant petition. Castano argues that the Court should have considered the one kilogram of cocaine actually distributed to calculate his base offense level, rather than the two kilograms negotiated, because delivery of the full negotiated amount was not "reasonably foreseeable." Castano also argues that the Court improperly denied him a two level reduction for acceptance of responsibility because he failed to plead guilty, thereby punishing the exercise of his constitutional right. *fn2"

 DISCUSSION

 Under section 2255, federal prisoner must establish that "the sentence as imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255. It is well-settled that non constitutional or non-jurisdictional claims, if not raised on direct appeal, are procedurally barred on collateral attack unless "the alleged error constituted a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Reed v. Farley, 129 L. Ed. 2d 277, 114 S. Ct. 2291, 2300 (1994) (quoting Stone v. Powell, 428 U.S. 465, 477 n.10, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976) (quoting Davis v. United States, 417 U.S. 333, 346, 41 L. Ed. 2d 109, 94 S. Ct. 2298 (1974) (quoting Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962)).

 In this case, Castano did not raise the claims set forth in the instant petition on direct appeal. Because the alleged misapplication of the Guidelines is neither constitutional nor jurisdictional in nature, see Park v. United States, 1993 WL 50938, at *1 (S.D.N.Y. 1993); Ramos v. United States, 1992 WL 350745, at *1 (S.D.N.Y. 1992); Fajardo v. United States, 1992 WL 328933, at *2 (E.D.N.Y. 1992), and because it does not constitute a fundamental defect which resulted in a complete miscarriage of justice, see Park, 1993 WL 50938 at *1; Ramos, 1992 WL 350745, at *1; Fajardo, 1992 WL 328933, at *2, the instant petition must be dismissed. *fn3"

 In any event, there is no merit to Castano's claims. In view of the evidence and all of the reasonable inferences to be drawn therefrom, the government proved that the co-conspirators, including Castano, agreed to sell two kilograms to Hernandez, i.e., that they intended to sell that quantity and that they were reasonably capable of doing so. See United States v. Hendrickson, 26 F.3d 321, 332-37 (2d Cir. 1994). Accordingly, the Court properly set Castano's base offense level based upon the two kilograms negotiated. See Hendrickson, 26 F.3d at 333-34; United States v. Negron, 967 F.2d 68, 72 (2d Cir. 1992); see also United ...


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