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CAMPUSANO v. U.S.

August 10, 2004.

JOSE CAMPUSANO, Petitioner,
v.
U.S., Respondent.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

Jose Campusano, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Campusano argues for relief on the basis of ineffective assistance of counsel resulting from his former attorney's alleged failure to: (1) adequately argue that the firearm found in petitioner's apartment was not possessed in connection with his drug offense; (2) move for a downward departure; and (3) file a notice of appeal despite petitioner's request that he do so. For the following reasons, Campusano's motion is denied.

  I. FACTS

  A. Campusano's Criminal Conduct, Guilty Plea And Sentencing

  Campusano was charged with conspiring with others from September 2000 through October 2000 to violate the narcotics laws in violation of 21 U.S.C. § 846. The object of this conspiracy was to distribute, and possess with intent to distribute, more than 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A). If convicted of this crime, Campusano faced a mandatory minimum of ten years imprisonment.

  The petitioner was arrested at his apartment on May 16, 2001. See 4/18/02 Sentencing Hearing Transcript, Ex. D to the Government's Memorandum of Law in Opposition to Vacate Sentence Pursuant to 28 U.S.C. § 2255 ("Opp. Mem."), at 25. During the course of the arrest, the police recovered a 12-gauge shotgun, 12-gauge caliber ammunition, approximately 130 grams of cocaine, 2 electronic scales, a composition book with coded language, and miscellaneous paraphernalia used in the packaging and trafficking of narcotics. See id. at 25-26.

  Campusano pled guilty, pursuant to a Plea Agreement, to a one count Superseding Information charging that on September 27, 2000, Campusano distributed, and possessed with intent to distribute, 27 grams of crack cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). See Plea Agreement, Ex. A to the Opp. Mem., at 2. The charge carried a mandatory minimum of five years imprisonment. In the Plea Agreement, Campusano stipulated that "[b]ecause the petitioner possessed a firearm, to wit, a shotgun recovered in the petitioner's apartment at the time of his arrest, the offense level is increased by two levels, pursuant to U.S.S.G. § 2D1.1(b)(1)." Id. The parties further stipulated to an offense level of 31, a criminal history category of I, and a Guidelines range of imprisonment of 108 to 135 months. See id. at 2-3. In return for the benefits obtained through the Plea Agreement, namely, pleading to a charge that carried a mandatory minimum of five years imprisonment instead of the original charge which carried a mandatory minimum of ten years imprisonment, petitioner agreed that he would "neither appeal nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Guidelines range" of 108 to 135 months. Id. at 4.

  At his plea allocution before Magistrate Judge Ronald L. Ellis on November 7, 2001, Campusano testified under oath that he had reviewed the Plea Agreement with his attorney, that he understood it, and that he signed it. See 11/7/01 Plea Transcript, Ex. B to the Opp. Mem., at 18-19. Campusano also testified that he was satisfied with his attorney, see id. at 9, and that he thought counsel was "doing a good job on [his] behalf." Id. at 3. Campusano testified that he understood that he had agreed not to appeal or otherwise litigate any sentence within or below the stipulated guideline range of 108 to 135 months. See id. at 26.

  This Court conducted sentencing proceedings on three separate days; March 26, April 18 and May 21, 2002. See Exs. C, D & E to the Opp. Mem. The principal issue at those proceedings was the propriety of applying the firearm enhancement found in U.S.S.G. § 2D1.1(b)(1).*fn1 This enhancement had been stipulated to in the Plea Agreement. Nonetheless, Campusano claimed that the shotgun found in his possession at the time of his arrest previously belonged to a violent neighbor and that he had taken the shotgun away in order to diffuse a potentially dangerous domestic dispute. See 3/26/02 Sentencing Hearing Transcript, Ex. C to the Opp. Mem., at 3.

  Notwithstanding petitioner's stipulation accepting the § 2D1.1(b)(1) enhancement, the Court invited petitioner to offer evidence concerning the manner in which he came into possession of the shotgun and therefore adjourned the hearing. See id. at 4, 7-8. On April 18, 2002, the second day of the sentencing proceeding, Campusano called three witnesses to explain the circumstances surrounding his possession of the shotgun. See 4/18/02 Sentencing Transcript, Ex. D to the Opp. Mem., at 6, 9-10, 13-14. These witnesses testified that a few weeks before Campusano's arrest, Campusano had taken the gun from a violent neighbor named Ricky who had used it to threaten his wife's life. See id. at 7, 11, 15.

  At the time of his arrest on May 16, 2001, however, petitioner had in his possession not only the shotgun, but also "all the tools of a narcotics business in the apartment." Id. at 25. Although the Court found the defense witnesses credible and concluded that Campusano "might have come into possession of this particular weapon in a peaceful and well-meaning way," the Court also found that "he didn't turn it into a local police station, and he didn't get rid of it. What he did with it, [was] keep it under his mattress in his bedroom, [and] keep ammunition available for it around the house." 5/21/02 Sentencing Transcript, Ex. E to the Opp. Mem., at 7-8. Because petitioner had a loaded weapon available for use in his home, in which he also had "all the tools of a narcotics business," he had failed to prove that it was "clearly improbable" that the gun was connected with the offense. See id. at 8. In the Court's view, Campusano felt safer with a weapon in his home. "He felt that he had some way to protect himself as a drug dealer, whether it was against other drug dealers or those who robbed drug dealers or customers who got angry, but it was a good idea to have protection in the house." Id. Under these circumstances, the enhancement was found to be appropriate.*fn2 See id.

  On May 21, 2002, the Court sentenced Campusano to 108 months imprisonment. See id. at 14. This sentence was at the bottom of the range set forth in the Plea Agreement. Campusano did not file a direct appeal although he claims that he instructed his attorney to do so.

  II. LEGAL STANDARDS

  A. Section 2255 ...


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