The opinion of the court was delivered by: TRAGER
Petitioner, pro se, brought this 28 U.S.C. § 2255 action contending only that he was entitled to application of the "safety valve" provisions set forth at § 5C1.2 and § 2D1.1(b)(4) of the Sentencing Guidelines, and, as a result, petitioner claimed he is entitled to a downward adjustment of two levels in his offense level. Subsequently, for reasons explained in the opinion, I appointed counsel who then raised a second point, namely that petitioner was denied effective assistance of counsel at his Fatico hearing.
Petitioner's conviction arose from his participation in a multi-defendant conspiracy to transport cocaine in suitcases on board commercial airline flights from Puerto Rico to New York and Philadelphia between May 1993 and September 1993. Through his employment as a baggage ramp coordinator at Luis Munoz International Airport in San Juan, Puerto Rico, petitioner was a key facilitator of the drug conspiracy. To assist the conspiracy, petitioner provided agricultural inspection stickers or "tickets" that enabled cocaine-laden suitcases to avoid x-ray examination. There was evidence presented at a Fatico hearing that petitioner's assistance to the drug conspiracy also included moving the suitcases to a safe location when routine drug inspections were to occur and ensuring that the suitcases were the last to be placed in the airplanes' baggage compartment so that they would be the first unloaded when the airplane reached its destination, thereby reducing the amount of time the couriers would remain at risk of detection in the airport.
Petitioner was first charged in a one-count indictment with conspiracy to possess cocaine with the intent to distribute in violation of Title 21, U.S.C. § 841(a)(1). Superseding indictments were filed against petitioner on August 3, 1994, and August 24, 1994, additionally charging him with two specific substantive counts of possession of cocaine with intent to distribute. Each count carried a statutory mandatory minimum sentence of ten years.
Throughout the case, petitioner maintained that he intended to go to trial. Only after a trial date was set, the government had prepared for trial, and a jury was empaneled did petitioner agree to a plea bargain with the government. See Transcript of Plea Minutes, September 9, 1994 (hereafter "Tr 9/9/94"); Docket Sheet 93 cr 1147, Item No. 39. Petitioner Pled guilty to a lesser included offense of Count One of the Second Superseding Indictment, charging him with conspiracy to possess cocaine with the intent to distribute. Tr 9/9/94, p. 67. The effect was to reduce the mandatory minimum sentence to five years. Tr 9/9/94, pp. 3, 17.
The plea agreement, predicated on petitioner's involvement with 50-150 kilograms of cocaine, estimated petitioner's sentencing range at 151-188 months, which included a two-point reduction for acceptance of responsibility authorized by the Sentencing Guidelines. Tr 9/9/94, pp. 21, 45-46. The Probation Department Sentencing Report ("PSR") later found petitioner accountable for 196 kilograms of cocaine and recommended a guidelines sentence of between 188 and 235 months. Though he had admitted his guilt, Guerrero maintained at all times, before and after entering into the plea agreement, that he should receive a sentence of 97-121 months or less based upon: (i) a three point adjustment for minor role, (ii) an additional one point downward departure for a full three point deduction for acceptance of responsibility, and (iii) a two point deduction for a quantity of less than 50 kilograms of cocaine. See Tr 9/9/94, pp. 3, 6-7, 9, 19-20, 29-30, 46-47. Had petitioner been able to prevail on all of these grounds, his guidelines level would have been 28, and his sentencing range from 78 to 97 months. From the plea minutes, it appears that his counsel's strategy was to have his client plead guilty, and then challenge the government's evidence at a Fatico hearing with the hopes of having petitioner's sentencing level reduced below that of the estimated guidelines set forth in the plea agreement.
While petitioner was within his rights to adopt this strategy, he was explicitly informed that there were no guarantees that a Fatico hearing would result in a lower sentencing range than that which petitioner had agreed to in the plea agreement. Tr 9/9/94, pp. 29-31, 44-47, 53. Indeed, it was made clear to petitioner on more than one occasion that the Fatico hearing could result in his receiving a sentence of more than eight years. Tr 9/9/94, pp. 30-31, 44-48, 52-53, 57-59. The only concession that Guerrero was given was a promise that he could have his plea back if it was determined that the sentence should be more than 188 months. Tr 9/9/94, pp. 55, 57-59. Intent upon challenging the government's evidence, however, petitioner proceeded to a Fatico hearing.
The Fatico hearing was held on February 10, 1995. At the hearing, evidence was presented showing that petitioner played a far more critical role in the conspiracy than his plea indicated. Tr 9/9/94, pp. 62-63, 64-67; Plea Agreement (hereafter "PA"), p. 2; Fatico Hearing Transcript (hereafter "Tr 2/10/95"), pp. 8-29, 42-62, 108. The credible testimony of petitioner's co-conspirators established that prior to petitioner's involvement, the conspiracy had experienced difficulties concealing drug-filled suitcases from customs agents. Tr 2/10/95, pp. 16-20. Petitioner's strategic position as a baggage handler greatly facilitated the transport of substantial quantities of cocaine into New York. Tr 2/10/95, pp. 20-24, 47. In sum, the testimony presented at the Fatico hearing established that petitioner's actions directly contributed to the shipment of between 50 and 150 kilograms of cocaine within the United States. Tr 2/10/95, pp. 68-69, 71, 83.
In light of this evidence that petitioner's assistance was integral to the conspiracy's success, a downward departure for minimal role was rejected. See Tr 2/10/95, pp. 71-73, 104-105, 107-110, 116. Accordingly, the Sentencing Guidelines resulted in a base offense level of 36. After a two point downward adjustment for acceptance of responsibility, petitioner was sentenced to 151 months' imprisonment -- the minimum allowable at an ...