United States District Court, Southern District of New York
June 24, 2002
FREDDIE PARRADO, A/K/A "GILBERT MERCADO," PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Leisure, District Judge.
OPINION AND ORDER
Petitioner Freddie Parrado, acting pro se, moves for a
reduction of his sentence pursuant to 28 U.S.C. § 2255. In the
alternative Parrado claims that his guilty plea was neither
knowingly nor voluntarily entered. For the following reasons,
Parrado's petition is denied.
A. Factual and Procedural History
On July 17, 1996, the Grand Jury filed an indictment, charging
Parrado with distributing and possessing with intent to
distribute five kilograms and more of mixtures and substances
containing a detectable amount of cocaine in violation of
21 U.S.C. § 846. Thereafter, Parrado waived formal indictment, and
on July 2, 1997, the government issued a superceding information
S2 96 Cr. 505(PKL) (the "Information") charging him with the
same violation of 21 U.S.C. § 846.
On June 30, 1997, Parrado entered into a plea agreement with
the government. See Plea Agreement of Freddie Parrado, June
30, 1997 (the "Plea Agreement"). The plea agreement stipulated
that he distributed and possessed with intent to distribute at
least 15 but less than 50 kilograms of cocaine. See Plea
Agreement at 2. Further, the plea agreement established that his
base offense level was 34 under the Federal Sentencing
Guidelines (the "Sentencing Guidelines"). See id. Due to
Parrado's cooperation, however, the parties stipulated to
reducing the base offense level to 31. See id. at 2-3. His
criminal history included seven points and a rating of IV under
the Sentencing Guidelines. See id. at 3. The parties
stipulated that his sentencing range was 151 to 188 months. See
id. at 4.
On July 2, 1997, Parrado pleaded guilty to the violation of
21 U.S.C. § 846, before The Honorable John F. Keenan, United States
District Judge in this Court. See Parrado's Plea Allocution,
July 2, 1997 (the "Plea Allocution"), at 15. On February 4,
1998, I sentenced Parrado to 151 months in prison. See
Transcript of Parrado's Sentencing, February 4, 1998 (the
"Sentencing Transcript"), at 9. During the plea allocution Judge
Keenan fully complied with the requirements of Rule 11(c) of the
Federal Rules of Criminal Procedure then construed by the
courts. In this regard, Judge Keenan carefully discussed with
the defendant the veracity of his guilty plea, and inquired as
to whether Parrado understood the charges against him. See
Plea Allocution at 4 and 7. Judge Keenan also explained the
possible sentencing range Parrado faced, detailed the terms of a
mandatory supervised release and explained that the sentencing
depart from the Sentencing Guidelines. See id. at 10. Next,
Judge Keenan inquired, "Are you offering a plea of guilty of
your own free will?" Parrado answered, "Yes." See id. at 14.
Judge Keenan specifically inquired whether Parrado understood
the terms of the plea agreement, to which Parrado responded
affirmatively. See id. at 13.
B. Petitioner's Claims
Parrado claims that his sentence is invalid under the new rule
of Apprendi v. New Jersey because the judge rather than the
jury determined the quantity of narcotics involved. See
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Parrado also
attempts to rely on Jones v. United States, 530 U.S. 1271, 120
S.Ct. 2739, 147 L.Ed.2d 1002 (2000). See Parrado's Reply to
The Government's Memorandum In Opposition to Parrado's § 2255
Motion ("Parrado's Reply"). Further, Parrado asserts that he
pleaded guilty and was "convicted of 5 kilos; not the 15 to 50
that he was sentenced for." Parrado's Reply at 7. In the
alternative, petitioner alleges that his guilty plea was not
voluntary or knowing. See id. at 4.
I. Timeliness of the Petition
Section 2255 sets forth the following time restrictions:
A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run
from the latest of:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment of making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
(3) the dates on which the right asserted was initially
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255.
Parrado initiated his claim more than 3 years after the
conclusion of the case. Judgment was entered on February 5,
1998, and Parrado filed his Section 2255 motion on March 10,
2001. Thus, Parrado fails to meet the time restriction of
Parrado attempts to take advantage of Section 2255(3). He
claims the "new rule" of Apprendi provides the relief he seeks
and was issued less than one year prior to filing his motion.
Section 2255 clearly announces, however, that the right
recognized must be applicable retroactively to be used as a
weapon for a collateral attack, and thus, as detailed below,
because Apprendi is not retroactively applicable, Parrado can
not take advantage of the Apprendi decision in the instant
II. The Retroactivity of Apprendi
The Second Circuit recently heard arguments regarding the
retroactivity of Apprendi, but has not yet rendered its
decision. See Beatty v. United States, 293 F.3d 627, 631 n. 3
(2d Cir. 2002) (citing United States v. Luciano (Parise), No.
01-1198 (2d Cir. argued Jan. 28, 2002)). The Supreme Court also
has not ruled on this issue.
The Apprendi Court held that, "[o]ther than the fact of a
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." 530 U.S. at 490, 120 S.Ct.
2348. The issue of retroactivity turns on whether the rule is
considered procedural or substantive. While substantive rules
are automatically applied retroactively, holdings dictating
methods of criminal procedure, such as the Apprendi holding,
are presumptively non-retroactive. See Rosario v. United
States, No. 00 Civ. 9695, 2001 WL 1006641, at *2 (S.D.N.Y. Aug.
30, 2001); Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060,
103 L.Ed.2d 334 (1989); see also Bousley v. United States,
523 U.S. 614, 619-20, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)
(holding that procedural rules are presumptively
non-retroactive). A majority of the courts that have considered
Apprendi's retroactivity have presumed the rule to be
procedural. See e.g., United States v. Sanders, 247 F.3d 139,
147 (4th Cir. 2001) (holding the language of Apprendi dictates
that rule is procedural); Raulston v. Menifee, No. 01 Civ.
0406, 2002 WL 826810, at *4 (S.D.N.Y. Apr. 30, 2002) (concluding
that the rule of Apprendi is procedural). Indeed, the language
of the Apprendi Court strongly suggests that the rule at issue
is procedural. "The substantive basis for New Jersey's
enhancement is thus not an issue; the adequacy of New Jersey's
procedure is." Apprendi, 530 U.S. at 475, 120 S.Ct. 2348. This
Court is persuaded by the weight of authority and the language
set forth in Apprendi itself, and thus holds that the rule is
A decision affecting criminal procedure becomes retroactive
for the purpose of collateral review in one of two ways. The
Supreme Court designates the rule as retroactive, or the rule
satisfies an exception set forth in Teague. 489 U.S. at 311,
109 S.Ct. 1060; see Tyler v. Cain, 533 U.S. 656, 665, 121
S.Ct. 2478, 150 L.Ed.2d 632 (2001).
The first Teague exception states, "that a new rule should
be applied retroactively if it places `certain kinds of primary,
private individual conduct beyond the power of the criminal
law.'" 489 U.S. at 311, 109 S.Ct. 1060 (citations omitted). The
second exception is for procedural rules that are "implicit in
the concept of ordered liberty," id. (citation omitted), or
"watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding."
Tyler, 533 U.S. at 665, 121 S.Ct. 2478 (quoting Graham v.
Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 122 L.Ed.2d 260
The Supreme Court has not made the new rule announced in
Apprendi retroactive. See Forbes v. United States,
262 F.3d 143, 145 (2d Cir. 2001) (per curiam). Moreover, Courts in the
Southern District of New York have largely held that the
Apprendi holding does not fit either of the two exceptions set
forth in Teague, and therefore is not retroactively applicable
on collateral review. See Raulston, 2002 WL 826810, at *4
(holding that Apprendi does not apply on collateral review);
Fiumara v. United States, 198 F. Supp.2d 427, 431 & n. 5
(S.D.N.Y. Apr. 3, 2002) (Sprizzo, J.) (same); Saldarriaga v.
United States, No. 99 Civ. 4487, 2002 WL 449651, at *5
(S.D.N.Y. Mar. 21, 2002) (same); Garcia v. United States, No.
01 Civ. 7188, 2002 WL 42888, at *1 (S.D.N.Y. Jan. 11, 2002)
(same). But see Rosario, 2001 WL 1006641, at *2 (ruling that
Apprendi is substantive in nature and therefore retroactive).
Though the Second Circuit has not specifically considered the
issue,*fn1 the Fourth, Eighth, Ninth, and Eleventh Circuits
have all ruled that Apprendi does not
apply retroactively on collateral review. See, e.g., Sanders,
247 F.3d at 147-51 (holding that the Apprendi decision is not
applicable on collateral review); United States v. Moss,
252 F.3d 993, 997 (8th Cir. 2001) (same); Jones v. Smith,
231 F.3d 1227, 1238 (9th Cir. 2000) (same); McCoy v. United States,
266 F.3d 1245, 1257-58 (11th Cir. 2001) (same).
The majority of courts that have considered the issue have
ruled Apprendi is not retroactive under the first exception,
because Apprendi does not place any behavior outside the scope
of the criminal law. See Sanders, 247 F.3d at 148; Raulston,
2002 WL 826810, at *4. The second exception also does not apply.
Designation as a "watershed" rule or a procedural rule that "is
implicit in the concept of ordered liberty" is rare. United
States v. Mandanici, 205 F.3d 519, 529 (2d Cir. 2000), cert.
denied, 531 U.S. 879, 121 S.Ct. 190, 148 L.Ed.2d 132 (2000). A
rule is considered a watershed rule when the failure to adopt it
will increase the risk of an innocent defendant being convicted
or the rule "alter[s] our understanding of the bedrock of
procedural elements" that are essential to a fair trial.
Teague, 489 U.S. at 311, 109 S.Ct. 1060. As the government
argues in the instant action, absence of the rule set out in
Apprendi does not threaten the fundamental fairness of trial
or create a risk that an innocent party will be convicted. See
The Government's Memorandum In Opposition to Parrado's § 2255
Motion at 17. To the contrary, Apprendi places the burden of
determining elements that lead to sentence enhancement on the
jury rather than the judge. 530 U.S. at 490, 120 S.Ct. 2348.
In Bilzerian v. United States, the Second Circuit held that
shifting an element of proof from the judge to the jury did not
constitute a watershed rule, and therefore was not applicable on
collateral review. 127 F.3d 237, 241 (2d Cir. 1997) (McLaughlin,
J.) (holding that juries will likely not have substantially
different interpretations than judges). Accordingly, the rule
set forth in Apprendi, which does no more than shift the proof
of drug quantity from the judge to the jury, does not meet
either of the Teague exceptions, and therefore is not
retroactively available for collateral attack in the instant
Parrado attempts to, circumvent this proposition by arguing in
the alternative that the ruling of Jones v. United States,
530 U.S. 1271, 120 S.Ct. 2739, 147 L.Ed.2d 1002 (2000), is
retroactively applicable on collateral attack, thus making his
instant Section 2255 motion timely. The Court in Jones
remanded the case so that the Tenth Circuit could apply the new
holding set forth by Apprendi. In United States u Jones[II],
235 F.3d 1231 (10th Cir. 2000), the Tenth Circuit simply applied
the rule set forth in Apprendi.
Parrado's Jones argument fails for two reasons. First, the
holding of Jones[II] is not a new right recognized by the
Supreme Court.*fn2 Second, there is no reason to believe that
a subsequent ruling applying Apprendi's holding would be
retroactive, when Apprendi is not.
III. Application of Apprendi to Parrado's Case
Even if the Apprendi holding applied on collateral review,
would still fail, because Apprendi does not apply to the
instant situation. Apprendi is applicable only when a judge
decides an element of the crime that would lead to an enhanced
sentence. See e.g., United States v. Norris, 281 F.3d 357, 361
(2d Cir. 2002) (Newman, J.); United States v. Guevara,
277 F.3d 111, 118 (2d Cir. 2001); United States v. Thomas,
274 F.3d 655, 663 (2d Cir. 2001). Guevara holds that a sentence is
erroneous when a judge determines a drug quantity that exposes
the defendant to a minimum sentence exceeding the top of the
Sentencing Guidelines range that would have been applicable
absent the judge's finding. 277 F.3d at 119. In Norris, the
Second Circuit clarified that at the other end of the sentencing
spectrum, Apprendi only applies to situations where a judicial
determination enhances a sentence beyond the statutory maximum.
Id. at 360; see also Thomas, 274 F.3d at 663 (ruling that
Apprendi is applicable only when a judicial determination
enhances a sentence above the statutory maximum that would have
controlled absent such a determination). Thus, Apprendi is not
applicable to a judicial fact finding that leads to Sentencing
Guideline enhancements that remain under the statutory maximum.
See Norris, 281 F.3d at 361.
Parrado fails to prove that his sentence was enhanced or that
a judge determined the drug quantity. Parrado was informed that
he was charged with conspiracy to violate 21 U.S.C. § 841(a)(1)
and 841(b)(1)(A), which constitutes distributing and possessing
with intent to distribute 5 kilograms or more of cocaine.
Further, Parrado pleaded guilty to this crime and stipulated to
the elements of the crime, including that he had distributed and
possessed with intent to distribute at least 15 but less than 50
kilograms of cocaine.
The fact that Parrado distributed and intended to possess at
least 15 but less than 50 kilograms was not explicitly charged
in the Information, which simply charged Parrado with intent to
distribute 5 and more kilograms of cocaine. The Supreme Court
has held that the indictment must charge any fact that enhances
the sentence. United States v. Cotton, ___ U.S. ___, 122 S.Ct.
1781, 1783, 152 L.Ed.2d 860 (2002) (citing Apprendi, 530 U.S.
at 476, 120 S.Ct. 2348). Cotton, however, only requires that
the indictment charge a threshold level that includes within it
the sentence that the defendant received. Id., 122 S.Ct. at
1786 n. 3. In the present case the Information charges "5
kilograms and more," which carries a maximum penalty of life
imprisonment under the statutory guidelines of
21 U.S.C. § 841(b)(1)(A). See Information at 1. Thus, the Information
charges the threshold level of the sentence that Parrado
received. Moreover, Parrado's failure to allege the Information
was defective at the time of his trial waives any right that he
had to challenge the Information. See id., 122 S.Ct. at 1787
(holding that a failure to object to the error in the indictment
at trial waives a right to challenge the indictment at a latter
stage in the proceedings).*fn3
Finally, the judge did not determine the drug quantity —
Parrado himself determined the quantity in his plea agreement.
See Plea Agreement at 2. Therefore, the very principle upon
which Apprendi is based is absent, because there was no
judicial determination of drug quantity.
Assuming arguendo that the judge had determined drug quantity,
claim still fails because he was not subject to a sentence
enhancement under the most liberal construction of either
Guevara or Norris. Parrado alleges he should have been
sentenced to distributing and possessing with intent to
distribute 5 kilograms of cocaine. Under Guevara, Apprendi
remains inapplicable because the statutory minimum is the same
for a sentence based on 15 to 50 kilograms and a sentence based
on 5 kilograms. See 21 U.S.C. § 841(b)(1)(A). Therefore, it
does not enhance the statutory minimum beyond the Sentencing
Guidelines range that would have been applicable. Apprendi
remains inapplicable under Norris because Parrado was
sentenced to 151 months in prison, which is within the statutory
range of a minimum penalty of 120 months and a maximum of life
imprisonment. See id. Thus, Apprendi is not applicable
because Parrado's sentence has not been enhanced under either of
the standards set forth in Norris or Guevara.
IV. Parrado's Plea Agreement
A. Parrado's Contention that the Plea was neither Knowing
Parrado contends that his guilty plea was not voluntarily or
knowingly entered because of an intervening change in law. See
Parrado's Reply at 7. He seeks to rely on the authority of
Salas v. United States, which holds that a defendant may argue
that his plea was not knowing or voluntary when an intervening
change in law occurs. 139 F.3d 322, 324-25 (2d Cir. 1998). The
facts stipulated in the plea agreement, however, are binding,
and the petitioner is only allowed to contest whether the
stipulated facts constitute a crime in light of the change in
law. See id. Because Apprendi and Jones dictate that the
quantity of narcotics is an element to be decided by the jury,
and because Parrado's guilty plea is the equivalent of a jury
decision on quantity, the change in law has no affect on the
instant situation. See Libretti v. United States, 516 U.S. 29,
38, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995) (holding that entering
a guilty plea is an admission of guilt and a waiver of the right
to jury trial).
Further, Parrado's guilty plea was knowingly and voluntarily
entered because there was no error in the "Court Advice"
delivered at his plea allocution. See United States v. Vonn,
___ U.S. ___, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002)
(ruling that Rule 11 is used to ensure the knowing and voluntary
nature of a plea); United States v. Maher, 108 F.3d 1513, 1520
(2d Cir. 1997) (quoting United States v. Parkins, 25 F.3d 114,
117 (2d Cir. 1994)) (holding that the district court must
strictly comply with Rule 11 so that it can be determined
whether the plea is knowingly and voluntarily entered). Although
Parrado has made no other complaint regarding the voluntariness
of his plea other than the above discussed grounds, a review of
the transcript of Parrado's plea allocution in its entirety
shows beyond peradventure that it was voluntarily and willingly
made. "Before accepting a plea of guilty . . . the court must
address the defendant personally in open court and inform the
defendant of, and determine that the defendant understands" the
charges before him, as well as, his constitutional rights.
Fed.R.Crim.P. 11(c). Judge Keenan carefully covered with the
defendant every aspect of Rule 11 applicable at the time of
sentencing. See Plea Allocution at 3-14. Therefore, Parrado's
plea was both knowingly and voluntarily entered.
B. The Plea Agreement's Prohibition of Appeals
Parrado's plea agreement states that Parrado would "neither
appeal, nor otherwise litigate under 28 U.S.C. § 2255, any
sentence within or below the stipulated Guidelines range." Plea
Agreement at 5. So long as, Parrado's plea was
knowing and voluntary he cannot bring the instant appeal,
because it would violate his plea agreement. Indeed, a defendant
may waive his or her right to appeal through a plea agreement.
As the Second Circuit explained in United States v.
[i]n no circumstance, however, may a defendant, who
has secured the benefits of a plea agreement and
knowingly and voluntarily waived the right to appeal
a certain sentence, then appeal the merits of a
sentence conforming to the agreement. Such a remedy
would render the plea bargaining process and the
resulting agreement meaningless.
990 F.2d 51, 53 (2d Cir.) (per curiam), cert. denied,
509 U.S. 931, 113 S.Ct. 3060, 125 L.Ed.2d 742 (1993); see also
Santobello v. New York, 404 U.S. 257, 260-62, 92 S.Ct. 495, 30
L.Ed.2d 427 (1971) (holding that a voluntary and knowing plea
agreement is equivalent to a contract and the promises stated
within must be fulfilled by the parties). Parrado knowingly and
voluntarily waived his right to appeal. The record is clear that
Judge Keenan complied with Rule 11.*fn4 The case law at the
time held that a defendant must knowingly and voluntarily waive
their right to appeal. "[A] waiver of the right to appeal should
only be enforced by an appellate court if the record `clearly
demonstrates' that the waiver was both knowing . . . and
voluntary." United States v. Ready, 82 F.3d 551, 557 (2d Cir.
1996) (citations omitted). Judge Keenan questioned, "Do you
remember that the terms of the plea agreement were read to you
by an interpreter . . .?" Plea Allocution at 13. Parrado
answered that he did. See id. Moreover, Judge Keenan asked,
"And were the terms of the plea agreement explained to you and
do you understand them?" Id. Again Parrado answered, "Yes."
Id. Thus, it is clear from the record that Parrado understood
the consequences of pleading guilty and knowingly and
voluntarily waived his right to an appeal. In any event, the
issue is moot because as detailed above, Parrado's opportunity
to appeal has lapsed due the fact that the Apprendi ruling is
not retroactively applicable.
For the foregoing reasons, Parrado's petition to reduce his
sentence pursuant to 28 U.S.C. § 2255 is HEREBY DENIED.