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United States District Court, Southern District of New York

April 24, 2003


The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge.


Petitioner Luis DeJesus Nerys was charged in Count One of indictment 99 Cr. 1221 with conspiring to distribute and to possess with intent to distribute five kilograms or more of mixtures and substances containing cocaine and 50 grams or more of mixtures and substances containing cocaine base, or crack. Due to his criminal history, of which more later, if the government had filed a prior felony information against him, Nerys would have been subject to a 20-year mandatory minimum sentence.

On November 22, 2000, Nerys pleaded guilty to the charge in Count One pursuant to a written plea agreement dated November 14, 2000, and signed on the date of the plea. (11/22/00 Tr. 19). In that agreement, Nerys and the government stipulated that the base offense level was 38 and that Nerys' criminal history category, because he had been convicted of a drug offense in 1995 in Supreme Court, New York County, was II. The parties agreed as well that Nerys would receive a two-level reduction in the offense level due to his minor role, and a three-level reduction for acceptance of responsibility. As a result, the adjusted offense level was 33, and the agreed-upon sentencing range was 151-188 months. In addition, the government agreed not to file a prior felony information against Nerys, and thus he avoided the mandatory 240-month sentence he would have faced if that information had been filed.

In that written agreement, Nerys agreed that no departure from the stipulated Guidelines range was warranted and that he would neither appeal nor otherwise litigate under 28 U.S.C. § 2255 a sentence within the stipulated range.

After being found competent to enter a plea (11/22/00 Tr. 7), Nerys acknowledged under oath (id. at 4) that he had understood and signed the plea agreement (id. at 18-19), that he understood that he had agreed to a sentencing range of 151-188 months (id. at 20), that he was giving up any right to appeal a sentence within that range (id. at 21), and that he committed the crime charged in Count One (id. at 25-26). On June 4, 2001, Nerys was sentenced at the low end of the stipulated range — 151 months.

Having reaped the benefit of the plea agreement, and avoided a 20-year mandatory minimum sentence, Nerys now violates that plea agreement by petitioning pursuant to 28 U.S.C. § 2255 to set aside the judgment of conviction, arguing that the evidence against him was insufficient to establish the charged crime, and that his lawyer was ineffective for not having either taken the case to trial, or at least negotiated a better plea agreement.

Nerys does not even attempt to explain why his plea agreement should not be enforced, with the result that this petition would be dismissed, other than by advancing the bald claim that his lawyer was ineffective for not having done better. That is not enough. Plea agreements are enforced according to principles of contract law. See Santobello v. New York, 404 U.S. 257, 262-63 (1971). As shown above, the record reflects that Nerys entered into this particular contract knowingly and willingly, and accepted the benefits that went with doing so. One of the considerations the government bargained for was not having to deal with applications of the sort presented here. It may be too late for the government to get the full benefit of its bargain, but it is not too late for the court, as a third party beneficiary, to get a substantial part of that benefit by not having to deal with the substance of Nerys' claims. Nerys is not the first defendant to breach an agreement in this fashion, by further litigating what he had agreed to litigate no further, and no doubt will not be the last. For the same reasons that the efforts of others have failed, so too will his. See, e.g., United States v. Garcia, 166 F.3d 519, 521 (2d Cir. 1999) (agreement not to appeal enforced); United States v. Salcido-Contreras, 990 F.2d 51, 52-53 (2d Cir. 1993) (same); Rodriguez v. United States, 185 F. Supp.2d 311, 312-13 (S.D.N.Y. 2002) (agreement not to file § 2255 petition enforced). For the above reasons, and for the reasons set forth in the cases cited herein, the writ Nerys seeks is denied and his petition is dismissed.

For the reasons set forth above, it is plain that this petitioner raises no substantial claim of deprivation of a constitutional right. Accordingly, no certificate of appealability will issue. See Reyes v. Keane, 90 F.3d 676, 680-381 (2d Cir. 1996).



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