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CUSTODIO v. UNITED STATES

October 31, 1996

MIGUEL CUSTODIO, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.,

 Pursuant to 28 U.S.C. § 2255, petitioner Miguel Custodio, appearing pro se, brings the above-captioned petition seeking vacatur of his conviction on the ground of ineffective assistance of counsel. In the alternative, Custodio seeks reduction of his sentence in light of alleged errors at sentencing and a subsequently enacted sentencing statute, 18 U.S.C. § 3553. For the following reasons, the petition is denied.

 BACKGROUND

 On February 15, 1990, a confidential informant for the United States Drug Enforcement Agency sought to purchase up to three kilograms of cocaine from Rafael Khury. Transcript dated June 12, 1990 ("Trial Tr.") at 198-99. Khury and the informant travelled to Custodio's apartment, where Khury introduced Custodio to the informant. Id. at 200-02. At the apartment, Custodio offered to sell heroin to the informant. Id. at 201, 204-05. The informant responded that he was at that time interested in purchasing cocaine. Id. at 201. At that point, Custodio left his apartment and returned with a "supermarket shopping bag" containing cocaine. Id. at 203. The informant agreed to purchase the cocaine in the bag and asked Custodio when he would get two more kilograms. Id. at 204. Custodio responded that he would telephone the informant upon receiving the additional cocaine. Id. The informant, Custodio and Khury finalized the terms of the sale of three kilograms of cocaine, two of which were to be delivered in the future. Id. at 208. Shortly thereafter, D.E.A. agents arrested Custodio and Khury. Id. at 76. A search by D.E.A. agents at the time of arrest revealed 61.9 grams of cocaine in a plastic bag, a .38 caliber revolver and various drug paraphernalia. Id. at 350-51, 355-58.

 On March 1, 1990, Custodio and Khury were indicted for conspiracy to distribute and possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B); possession with intent to distribute approximately 60 grams of cocaine within 1,000 feet of a schoolhouse, in violation of 21 U.S.C. §§ 860, 841(a)(1), 841(b)(1)(B); and possession or use of a firearm in relation to a conspiracy to distribute cocaine, in violation of 18 U.S.C. § 924(c). Indictment 90 Cr. 125.

 On June 12, 1990, a four day jury trial commenced. At trial, Custodio was represented by Barry Weinstein. After the government rested, the Court granted Custodio's motion to dismiss the firearm charge, pursuant to Fed. R. Crim. P. 29. Trial Tr. at 409. On June 19, 1990, the jury returned a verdict of guilty on the charge of conspiracy to distribute cocaine. Id. at 505-06. In addition, the jury acquitted Custodio on the charge of possession with the intent to distribute a controlled substance within 1000 feet of a public school. Id. at 506

 Prior to sentencing, the United States Probation Department filed a Presentence Investigation Report ("PSR") which recommended a base offense level under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") of 28 based upon the three kilograms of cocaine negotiated. PSR PP 29-31. In addition, the PSR recommended a two level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), based upon the possession of a dangerous weapon during the offense. PSR P 32.

 At sentencing, Custodio objected to the inclusion of the three kilograms of cocaine in his base offense level, arguing that he should be sentenced upon the 60.9 grams of cocaine seized at the time of arrest. Transcript dated Sept 18, 1990 ("Sent. Tr.") at 8-14. The Court rejected that argument, holding that Custodio was properly sentenced upon the three kilograms of cocaine negotiated. Id. at 14-15. In addition, the Court rejected the Government's request for a two level enhancement for possession of a gun in connection with a drug trafficking offense. Id. at 6. As a result, the total offense level was reduced to 28, which carries a range of 78 to 97 months of imprisonment. Id. at 17. On September 18, 1990, the Court sentenced Custodio to a term of imprisonment of 78 months, followed by four years' supervised release and a $ 50 mandatory assessment. Id. at 15-18.

 On appeal, Custodio was represented by new counsel, Howard Leader. Custodio raised several issues on appeal, including the argument that the sentence should have been based upon the 61.9 grams of cocaine discovered at his arrest, rather than the three kilograms negotiated. See Brief for Defendant-Appellant Miguel Custodio, attached to Gov't Mem. at Exh. B, at 29-31; see also United States v. Khury, 935 F.2d 1278 (2d Cir. 1991) (Nos. 90-1578, 1746) (unpublished), attached to Gov't Mem. at Exh. C, at 2. At no time did Custodio or his counsel object to the quality of his representation. On May 24, 1991, the Second Circuit affirmed Custodio's conviction and sentence by summary order, finding "no merit in defendants' contentions." Khury, at 2.

 On February 4, 1992, pursuant to 28 U.S.C. § 2255, Custodio filed a petition to set aside his sentence and conviction on several grounds. See Memorandum in Support of Petitioner's Title 28 U.S.C. § 2255 Writ of Habeas Corpus filed February 4, 1992 ("1992 Pet'n."). Custodio claimed that the Court had erred in imposing a sentence based upon the three kilograms of cocaine negotiated rather than the 61.9 grams of cocaine seized. See id. at 2-3. In addition, Custodio argued that his constitutional rights to due process and equal protection had been violated by the sentencing disparity which resulted from the fact that other similarly situated defendants, particularly females, have been allowed to plead to lesser included offenses and receive correspondingly shorter sentences of incarceration. Id. at 3-4. Finally, Custodio claimed that his Sixth Amendment right to effective assistance of counsel was violated when his trial and appellate counsel failed to raise these issues. Id.1

 By Order dated April 8, 1992, the Court denied the 1992 petition on the ground that the claim relating to the calculation of Custodio's base offense level was procedurally barred, and, in any event, all of the claims were meritless. April 8, 1992 Order.

 On October 3, 1994, Custodio filed the instant petition claiming that he had been denied his Sixth Amendment right to effective assistance of counsel when his trial attorney failed to pursue his wish to plea bargain and failed to secure a "minor participant" reduction under the Guidelines. *fn2" See Letter of October 3, 1994 (unpaginated)("1994 Pet'n."). In addition, Custodio asserts that the Court erroneously sentenced Custodio 1) as an equal co-felon and 2) based upon three kilograms, rather than 61.9 grams, of cocaine. Id. By petition and letter dated January 9 and 10, 1995, respectively, Custodio moved for a reduction in his sentence below the mandatory minimum statutory sentence pursuant to recently enacted 18 U.S.C. § 3553. The ...


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