§ 1B1.3, held that cocaine distributed by the
defendant's coconspirators before he joined the conspiracy could not be
included under § 1B1.3 in the absence of evidence that the defendant
knew or reasonably should have known about the earlier sales. Id. at
178. Because the legal basis for petitioner's claim was reasonably
available at the time of the default, the post-sentencing amendment of
§ 1B1.3 does not provide cause for the default.
Petitioner also argues that ineffective assistance of his trial counsel
provides cause for the default. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that: (1) counsel's
representation fell below constitutionally acceptable standards; and (2)
there is a reasonable likelihood that, but for the allegedly deficient
performance, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
In petitioner's plea agreement, he agreed to a sentence based on 100
kilograms of cocaine. From the pre-sentence report it appears the
undercover agent was prepared to testify that the $720,000 payment that
petitioner attempted to make on May 15, 1990 was the down payment for a
much larger purchase of cocaine negotiated by the agent and Rafael Plinio
Tejada-Mejia, Guerrero's accomplice. In addition, according to the
pre-sentence report, mobile phone records show 30 to 35 calls between
petitioner and Tejada-Mejia on May 15, 1990. In light of this
information, it is not reasonably likely that petitioner would have been
sentenced on the basis of a smaller quantity of cocaine had his attorney
objected to the amount at sentencing.
Accordingly, petitioner's claim of ineffective assistance of counsel
Petitioner has also made a "Supplemental Motion For Downward Departure
Based On Petitioner's Post-Offense Rehabilitation," in which he seeks a
reduction of his sentence on the basis of in-prison rehabilitation after
conviction and sentencing. While petitioner does not identify the
statutory authority for the motion, modification of a sentence already
imposed is ordinarily sought under 18 U.S.C. § 3582(c). That
provision allows a defendant to move for a reduction of his sentence when
he was sentenced on the basis of a sentencing range that has been
subsequently lowered by the Sentencing Commission. Under § 3582(c),
however, "post-sentence rehabilitation is not by itself a ground for
modifying a sentence that has been lawfully imposed." United States v.
Barahona, 132 F. Supp.2d 255 (S.D.N.Y. 2001).
For the foregoing reasons, petitioner's motions are denied.
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