The opinion of the court was delivered by: Miriam Goldman Cedarbaum, United States District Judge
Petitioner Dennis Jose Guerrero has moved to challenge his sentence
pursuant to 28 U.S.C. § 2255. He argues that his sentence was based on
a quantity of cocaine for which he should not have been held
responsible. He has also moved for a downward departure based on
post-conviction rehabilitation. Since the government has failed to address
the merits despite numerous extensions of time, I am ruling on the
motions without the benefit of opposition papers from the government.
Petitioner was arrested on May 15, 1990, after attempting to buy nearly
$720,000 worth of cocaine from an undercover agent.
He pleaded guilty, pursuant to a plea agreement in which he agreed to a
sentence based on 100 kilograms of cocaine and the government agreed not
to oppose a reduction for acceptance of responsibility, to one count of
conspiracy to possess and distribute cocaine in violation of
21 U.S.C. § 846.
Petitioner now contends that the sentence was based on a quantity of
cocaine for which he should not be held responsible. Section
1B1.3(a)(1)(B) of the Sentencing Guidelines, which describes the
"relevant conduct" for which a defendant may be sentenced, was amended on
November 1, 1992 to include, in the context of jointly undertaken
criminal activity, only the acts and omissions of others in furtherance
of the criminal activity that were "reasonably foreseeable" to the
defendant. Petitioner argues that the $720,000 in his possession when he
was arrested could only have bought 41 kilograms of cocaine at the
$17,500 price per kilogram set by the agent, and therefore he could not
reasonably have foreseen the purchase of a greater quantity of cocaine.
Forty-one kilograms of cocaine would have resulted in a base offense
level of 34. Id., § 2D1.1(c). After the reductions for acceptance of
responsibility and minor participation, his total offense level would
have been 30, resulting in a sentencing range of 97 to 121 months.
At the time of sentencing, the mandatory minimum sentence provided by
statute for conspiracy to distribute more than 5 kilograms of cocaine was
ten years imprisonment. 21 U.S.C. § 841(b)(1)(A) (1988); id. §
846 (providing that the penalties for conspiracy to commit a drug offense
shall be the same as for the predicate offense); see United States v.
Campuzano, 905 F.2d 677, 679 (2d Cir. 1990). Given the mandatory
minimum, the lowest possible sentence, even assuming the lower sentencing
range for which petitioner argues, would have been 120 months.
In any event, petitioner's failure to raise the issue on appeal
precludes collateral review. Unless petitioner can show that "there was
cause for failing to raise the issue, and prejudice resulted therefrom,"
he is procedurally barred from raising the issue now. United States v.
Pipitone, 67 F.3d 34, 38 (2d Cir. 1995). Petitioner argues that the
post-sentence amendment to § 1B1.3 provides cause for his failure to
appeal, but this argument is unavailing. A petitioner may demonstrate
cause by showing that the legal basis for the claim was not "reasonably
available" to counsel at the time of the default. Bousley v. United
States, 523 U.S. 614, 622 (1998). However, Application Note 1 to §
1B1.3, in effect at the time of sentencing, states that only "conduct of
others in furtherance of the jointly-undertaken criminal activity that
was reasonably foreseeable by the defendant" should be used in
calculating the defendant's offense level. The 1992 amendment to §
1B1.3 merely moved the limiting language from the commentary to the
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 ...