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HENAO v. U.S.

United States District Court, Southern District of New York


March 14, 2003

GUSTAVO HENAO, MOVANT,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge

ORDER

Movant was convicted on his plea of guilty of conspiracy to distribute and to possess with intent to distribute heroin in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 846. He was sentenced principally to a term of imprisonment of 151 months. He now moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. Movant argues essentially that he received ineffective assistance of counsel in that his counsel allegedly failed to challenge adequately the calculation of his Guideline sentencing range, including the drug quantity, movant's role in the offense, and movant's criminal history. Movant's petition fails because he previously waived his right to attack any sentence of this magnitude.

The plea agreement specifically provides that movant would not appeal from or challenge under Section 2255 any sentence falling within or below the stipulated sentencing range of 151 to 188 months of imprisonment. Plea Agr., Oct. 5, 2000, at 5. The agreement was placed before movant during the Rule 11 proceeding. He signed it, identified it, and testified that it had been translated into Spanish for him and that he had discussed it fully with counsel before signing it. Tr., Oct. 13, 2000, at 13. Movant acknowledged that the agreement included sentencing stipulations, which, if adopted by the Court, would result in a Guideline sentencing range of 151 to 188 months of imprisonment. Id. at 10-11. These stipulations covered facts required to calculate movant's Guideline sentencing range, such as the relevant drug quantity and movant's criminal history. Plea Agr., Oct. 5, 2000, at 2-4. Movant admitted further that pursuant to the plea agreement he voluntarily and knowingly waived his right to appeal or otherwise challenge any sentence equal to or less than 188 months imprisonment. Tr., Oct. 13, 2000, at 13-14.

In consideration of movant's plea, the government agreed to dismiss Count One of the underlying indictment and not to file a prior felony information pursuant to 21 U.S.C. § 851. The Court sentenced movant at the bottom of this range. Tr., Jan. 22, 2001, at 8. There is no basis for disturbing movant's waiver of any right to attack any sentence within or below the stipulated sentencing range. Movant will not be heard to challenge this sentence, especially as he seeks to retain all of its benefits while reducing its burdens.

The motion is denied in all respects. The clerk shall close the case. As no substantial question is presented, the Court denies a certificate of appealability and certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915.

SO ORDERED.

20030314

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