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July 30, 2004.

U.S., Respondent.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Jed S. Rakoff, United States District Judge:

Hugo Valcacel brings this § 2255 habeas corpus petition to vacate his sentence in the related criminal prosecution before Judge Rakoff, 03 Cr. 1004. For the reasons set forth below, the petition should be dismissed.

  Varcarcel raises two claims. First, he claims that counsel was ineffective for not filing a notice of appeal, thus forcing Valcarcel to do so. His petition implies that by doing so his notice of appeal was untimely. (Dkt. No. 2: Valcarcel Br. at 5.) Bur a review of the Court's docket sheet in 03 Cr. 1004 shows that the appeal has been filed with the Second Circuit and that the Second Circuit has not ruled on the appeal. (03 Cr. 1004, Dkt. Nos. 23, 24.) Thus, even assuming the facts asserted by Valcarcel are true, at this time he cannot satisfy the second Strickland prong of showing prejudice. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Second, Valcracel contends that he asked his attorney if there was a difference under the Sentencing Guidelines between his gain of $4,850 from the crime and the overall amount of money he laundered, $107,539, and, according to Valcarcel, his counsel said there was not. (Valcarcel Br. at 5-6.) Valcarcel's claim is belied by the record.

  The Government's September 17, 2003 Pimentel letter to defense counsel contained a sentencing guideline calculation that referred to an 8 level enhancement because the amount of funds Valcarcel laundered is $107,539. (9/17/03 Pimentel letter at p. 2 ¶ A(3).)

  On September 18, 2003, Valcarcel and counsel appeared before Judge Rakoff to enter a guilty plea to the indictment. (See 03 Cr. 1004 Dkt. No. 11: 9/18/03 Transcript.) In addition to the other questions about his rights and the consequences of pleading guilty, Valcarcel was advised by Judge Rakoff of the possible sentence for the crime, which Judge Rakoff noted included "forfeiture of any property that the government alleges is traceable to the crime, in this case amounting to $107,539 . . . (9/18/03 Tr. at 10.) Valcarcel acknowledged that he had discussed the Pimentel letter with his counsel and understood that under the government's analysis, the guidelines produced a sentencing range of 37 to 46 months. (9/18/03 Tr. at 10-12.) That guideline, as noted above, was calculated in the Pimentel letter based on laundering of $107,539. (See above.) Finally, Valcarcel's allocution to the crime stated he laundered $62,459 in narcotics proceeds in April-May 2001 and another $45,080 in April-May 2003 (9/18/03 Tr. at 14), which totals $107,539. Judge Rakoff accepted the plea. (9/18/03 Tr. at 17.)

  The Presentence Report reiterated that the Pimentel letter calculated a guideline range of 37 to 46 months based on laundering of $107,539. (PSR at 3.) The Probation Department's guideline calculation also used the $107,539 figure (PSR at 6, 14), to calculate a guideline range of 37 to 46 months (PSR at 6, 10, 14). The defense filed no objections (see PSR at 13).

  On January 20, 2004, Judge Rakoff imposed sentence on Valcarcel. (03 Cr. 1004 Dkt. No. 12: 1/20/04 Tr.) Judge Rakoff started by asking if there were any objections to the Presentence Report, and defense counsel confirmed that there were not. (1/20/04 Tr. at 2.) Neither defense counsel nor Valcarcel expressed any problem with the guideline calculation utilizing the $107,539 amount. (See generally 1/20/04 Tr.) Judge Rakoff indicated a likelihood to "impose the lowest sentence within that [guideline] range," and indicated that the defendant's age and health were factors he took into account in reaching that conclusion, but that they were "not normally grounds for departure." (1/20/04 Tr. at 3; see also id. at 6.) Judge Rakoff asked Valcarcel if he wanted to speak, and Valcarcel said no. (1/20/04 Tr. at 6.) Judge Rakoff then sentenced Valcarcel to 37 months, the very bottom of the guideline range. (1/20/04 Tr. at 6.) The government asked for forfeiture of the $107,539, defense counsel indicated he had nothing to say about that, and Judge Rakoff ordered it. (1/20/04 Tr. at 8.)

  In short, it is clear that whatever he now claims counsel said, Valcarcel knew from the Pimentel letter, discussion at his plea allocution, the Presentence Report, and discussion at sentencing, that his sentence would be and was based on the $107,539 amount. His claim to the contrary now is not believable.

  Accordingly, I recommend that the Court deny Valcarcel's § 2255 petition in its entirety. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 So. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 So. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


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