Moreover, "(a] defendant is not entitled to an evidentiary hearing as a
matter of right whenever he seeks to withdraw his guilty plea." United
States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992). "Although the
standard to be applied in granting a hearing is less rigorous than the
standard for granting the motion to withdraw the plea . . . the defendant
must present some significant questions concerning the voluntariness or
general validity of the plea to justify an evidentiary hearing." Id.
There is no need for a hearing when "allegations on a motion to withdraw
a guilty plea before sentencing merely contradict the record, are
inherently incredible or are simply conclusory." Id.
In this case it is cleat that Tavarez's grounds for reopening his
hearing clearly contradict the record and are inherently incredible.
First, Tavarez's claim that the court failed to "appoint counsel to
insure that [his] rights were being protected" and that "[t]he court
failed to examine critically even the slight procedural deficiencies" is
clearly contradicted by the record. As outlined above, the Court both
appointed counsel to discuss the conflict of interest with Tavarez and
held a Curcio hearing to ensure that Tavarez was advised of his rights to
Second, this Court has already found that in light of Tavarez's plea
allocution, his contradictory affidavit, the testimony of two of his
previous lawyers and the Court's clear statement that he could receive a
sentence of up to life imprisonment, that Tavarez entered his plea
knowingly and voluntarily. Simply put, the record of this case belies
Tavarez's bald assertion that Cohen's testimony will establish that he
"did not fully understand the ramification of his plea." Letter from
Pagan to Kram of 11/17/00. Therefore, the Court finds that it is wholly
unnecessary to reconvene the hearing, for a third time, to examine
whether Tavarez has entered a knowing and voluntary plea. Having
carefully considered the claims made by Tavarez, the Court finds that
Tavarez has failed to raise any significant concerns regarding the
voluntariness or general validity of the plea which justifies an
evidentiary hearing on any of these issues. Accordingly, Tavarez's motion
to reopen the hearing denied.
II. Request for a new Pre-Sentence Report
Tavarez also moves for the preparation of a new Presentence Report
("PSR"). The initial PSR was prepared on September 24, 1998 and updated
on November 24, 1998 and on October 11, 2000. Tavarez claims that "[i]n
order to properly address counsel's objections to the [PSR]-Report the
issues raised by counsel's objection need to be revisited by way of
additional investigation conducted by the probation officer." Letter from
Pagan to Kram of 10/26/00. Specifically, Tavarez alleges that he was
unable to give a statement to the Probation Officer because his attorney
was not present. See Id. at 2. He claims that this has adversely affected
him because he was not given the three points reduction for acceptance of
responsibility he claims he deserved as "[i]t is obvious from the plea of
guilty and [his] subsequent actions of cooperating with the government
that he has accepted responsibility for his actions." Id.
The Court, however, has already determined that a reduction for
acceptance of responsibility is not warranted. See Order dated July 19,
2000. The Court found that although entering a plea of guilty before the
start of trial constitutes "significant evidence of acceptance of
responsibility," that evidence was outweighed by the fact that Tavarez
had obstructed justice by committing perjury several times. The Court
held that this was not an "extraordinary
case" that would justify
simultaneous upward and downward adjustments for obstruction of justice
and acceptance of responsibility, respectively.*fn2 Because Tavarez has
set forth no reason for a new PSR other than to determine whether he is
entitled to a downward adjustment for acceptance of responsibility
— which the Court has already found he is not — the motion
for a revised PSR is denied.
III. Recalculation of Sentencing Guidelines under Apprendi
Taverez argues that his Sentencing Guidelines range should be
recalculated in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
See Letter from Pagan to Kram of 2/5/01. In Apprendi, the Supreme Court
held that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt." Id.
The Government has agreed that Apprendi applies to the instant case
and, "absent a jury trial, the defendant's sentence must be capped at 240
months imprisonment, i.e., the statutory maximum sentence prescribed
under Title 21, United States Code, Section 841(b)(1)(C)." Letter from
Cheryl Krause, A.U.S.A. to Kram of 1/11/01. The Government, however,
argues that Apprendi does not require further remedy and that the
Sentencing Guidelines need not be recalculated. See id.
The Court does not intend to sentence Tavarez to more than the
statutory maximum. Therefore, Apprendi is inapposite to the instant
case. See e.g., United States v. Moreno, No. 94 Cr. 0165, 2000 WL
1843232, at *3 (S.D.N.Y. December 14, 2000); see also United States v.
Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000); United States v.
Westmoreland, Nos. 99 Cr. 1491, 00 Cr. 1348, 2001 WL 125878 (7th Cir. Feb
15, 2001); United States v. Meshack, 225 F.3d 556, 576 (5th Cir. 2000);
United States v. Corrado, 227 F.3d 528, 542 (6th Cir. 2000).
Accordingly, the motion to recalculate Tavarez's Sentencing Guidelines is
IV. Ineffective Assistance of Counsel
Tavarez also asserts an ineffective assistance of counsel claim based
on Fisher's dual representation of Tavarez and Cohen, Tavarez claims that
"[a] defendant's right to counsel is violated if a lawyer represents
multiple defendants and the interest of one defendant conflicts with the
interest of the other." See Letter from Pagan to Kram of 2/5/01.
Specifically, Tavarez alleges that although "Fisher's conflict arose after
the defendant had pleaded, it also cast a further taint over
representation provided to [him]." Letter from Pagan to Kram of 7/14/00
at 6. To demonstrate that his attorney provided constitutionally
ineffective assistance of counsel, Tavarez must show that Fisher, who
represented him for a total of thirty-two days and was not his attorney
during the time he entered his plea or during sentencing, "made errors so
serious that counsel was not functioning as the `counsel' guaranteed
[him] by the Sixth Amendment" and that the "errors were so serious as to
deprive [him] of a fair trial, a trial whose result is reliable."
Strickland v. Washington, 466 U.S. 668, 687 (1984). Upon review of the
record, the Court finds that Tavarez has failed to sustain this burden.
Tavarez does not set forth any evidence or cite any examples of how
"fell below an objective standard of
reasonableness" or how Fisher's performance adversely affected him.
Therefore, Tavarez's claim of ineffective assistance of counsel is
For the reasons set forth above Tavarez's motion to reopen his hearing
to withdraw his plea, have a new PSR, recalculate his Sentencing
Guidelines and his ineffective assistance of counsel claim are hereby
denied. Accordingly, sentencing will take place on April 4, 2001 at 2
P.M. No further adjournments will be granted.