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United States District Court, E.D. New York

April 4, 2005.


The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


Pro se petitioner Derek Rodriguez ("Rodriguez") moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. Rodriquez was sentenced by the Court on March 14, 2003, following his September 12, 2002 plea of guilty to the crime of conspiracy to commit a Hobbs Act robbery in violation of 18 U.S.C. § 1951. Rodriquez claims that his guilty plea was involuntary because counsel was ineffective for (1) advising him to plead guilty to a Hobbs Act charge rather than challenging the interstate-commerce element of the charge; and (2) advising him to enter into a plea agreement that included a leadership-role enhancement rather than challenging the enhancement. He also argues that counsel was ineffective at sentencing for not requesting a Fatico hearing to challenge that enhancement.*fn1 Finally, he claims that his sentence was enhanced in violation of his Sixth Amendment right to trial by jury as defined in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). For the reasons set forth below, the motion is denied.


  Rodriquez was arrested in June 2002 in connection with a July 2001 home-invasion robbery in Staten Island, New York; he was charged with one count of Hobbs Act robbery and one count of conspiracy to commit such a robbery. See Indictment, dated Jul. 10, 2000, attached as Ex. D to letter from Assistant U.S. Attorney Greg D. Andres, dated Nov. 14, 2004 ("Andres Ltr."). Rodriquez pleaded guilty to the conspiracy charge pursuant to a written plea agreement. See Plea Agreement, dated Sept. 12, 2002, attached as Ex. A to Andres Ltr. In the plea agreement, he stipulated to several sentencing enhancements, including a two-point enhancement for his leadership role in the conspiracy. See Plea Agreement ¶ 2. He further stipulated that, with those enhancements, his "likely adjusted offense level under the Sentencing Guidelines" was 28, which "carries a range of imprisonment of 97-121 [months]." Id.

  On September 12, 2002, Rodriquez pleaded guilty to the conspiracy charge before United States Magistrate Judge Roanne L. Mann. He was represented at the proceeding by his attorney, Patrick Parrotta ("Parrotta"); the government was represented by Assistant U.S. Attorney Greg Andres ("Andres"). Rodriquez testified that he understood the nature of the proceeding and the consequences of his plea, that he had an opportunity to discuss the case with Parrotta and was satisfied with his representation, and that he had seen the indictment and consulted with Parrotta about the charges. See Transcript of Criminal Cause for Pleading, dated Sept. 12, 2002 ("Plea Tr."), at 9-11, attached as Ex. B to Andres Ltr.

  The Magistrate Judge then explained to Rodriquez the nature of the charged conspiracy, including the interstate-commerce element of the Hobbs Act robbery: "Let me, first, explain to you what the Hobbs Act is. That is the object of robbery affecting interstate commerce . . . the effect on interstate commerce requires proof of any effect no matter how minimal and it could be actual or potential effect of commerce between two or more states." Plea Tr. at 11-12. Rodriquez acknowledged that he understood the charge and had discussed it with Parrotta. Plea Tr. at 12. During the allocution, the following colloquy took place:

The Court: Tell me in your own words what you did and what happened.
Rodriquez: I agreed to commit a robbery at 39 Ladd Avenue with my co-defendant John Carlo and one other gentleman. . . .
* * *
The Court: What were you going to take and how did you intend to get it?
Rodriquez: We planned to take interstate commerce out of the house.
The Court: What property were you planning to take? Rodriquez: We were planning to take money out of the house. Cash.
* * *
The Court: And you did in fact enter the home to accomplish that objective?
Rodriquez: No.
Mr. Andres: I'm sorry, Judge. Mr. Rodriquez was the getaway driver but was at the crime scene and directed others to go in the house, waited and then —
* * *
The Court: Mr. Andres if you want to proffer the effect on interstate commerce?
Mr. Andres: Judge, the Government would prove that at least one member of the conspiracy knew that the money in the house was the result of a business that operated in interstate commerce.
The Court: In that stipulated to by the defense?
Mr. Parrotta: Yes it is, your Honor.
The Court: All right. Mr. Andres, is there any further inquiry you'd like me to make of Mr. Rodriquez?
Mr. Andres: No, Judge. I would just put on the record that the Government would prove at trial in this matter by admissible and competent evidence . . . that Mr. Rodriquez played a leadership role in the robbery . . . such that he would be subject to the enhancement . . . as he stipulated in his plea agreement[.]
Plea Tr. at 28-30. The Magistrate found that Rodriquez was "acting voluntarily" during the proceeding, that he "fully understands his rights and consequences of his pleas," that "there is a factual basis" for the plea, and, therefore, recommended acceptance of the plea. Plea Tr. at 34.

  The probation department prepared a presentence investigation report ("PSR"), which explained that, according to a confidential informant and an FBI case agent, Rodriquez had recruited his co-conspirators and organized the robbery. See PSR, dated January 22, 2003, United States v. Rodriquez, 02-CR-805-02. Accordingly, the probation department recommended the leadership-role enhancement that Rodriquez had stipulated to in his plea agreement. The PSR further explained that the probation department's investigation revealed that the stolen funds were the proceeds of a family-run business that engaged in interstate commerce. See id.

  On March 14, 2003, the Court, after assuring itself that the parties had reviewed the PSR and had no objections thereto, sentenced Rodriquez to 97 months of imprisonment and three years of supervised release. See Transcript of Criminal Cause for Sentencing, dated Mar. 14, 2003, United States v. Rodriquez, 02-CR-805-02. The judgment of conviction and sentence was entered by the Court on March 25, 2003. Rodriquez did not appeal the judgment; thus the judgment became final when the time to appeal expired ten days later on April 4, 2003. See Fed.R.App.P. 4(b)(1)(A); Moshier v. United States, ___ F.3d ___, 2005 WL 623142, at *2 (2d Cir. Mar. 17, 2005).


  I. Ineffective Assistance Claims

  In order to succeed on his ineffective assistance of counsel claims, Rodriquez must show both that (1) counsel's performance fell below the objective standards of reasonableness dictated by prevailing professional norms and that (2) there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687-99 (1984).

  Under the first prong, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689.

  A. Hobbs Act Charge

  Rodriquez contends that he received ineffective assistance because Parrotta advised him to plead guilty rather than objecting to the Hobbs Act charge, alleging that because the funds were stolen from an individual's home, they had no nexus to interstate commerce. In a Hobbs Act prosecution, "proof that commerce [wa]s affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference." Wilkerson v. United States, 361 F.3d 717, 726 (2d Cir. 2004) (internal quotation marks omitted; alteration in original). Nonetheless, as the Second Circuit has explained, "[o]ur precedent requires the [G]overnment make only a de minimis showing to establish the necessary nexus for Hobbs Act jurisdiction." United States v. Fabian, 312 F.3d 550, 554 (2d Cir. 2002), cert. denied, 538 U.S. 1025 (2003). See also United States v. Jamison, 299 F.3d 114, 118 (2d Cir. 2002) ("We have long recognized that the requirement of showing an effect on commerce involves only a minimal burden of proving a connection to interstate commerce, and is satisfied by conduct that affects commerce in any way or degree.") (internal quotation marks and citations omitted)), cert. denied, 537 U.S. 1196 (2003). Under this de minimis standard, the interstate commerce element of the Hobbs Act can be satisfied when the target of the robbery is an individual in his or her home instead of a business: "(i) where the victim directly participated in interstate commerce; (ii) where the defendant targeted the victim because of her status as an employee at a company participating in interstate commerce; (iii) where the assets of a company engaged in interstate commerce were, or would have been, depleted as a result of the harm or potential harm, respectively, to the individual victim; or (iv) where the defendant targeted the assets of a business engaged in interstate commerce rather than an individual." Wilkerson, 361 U.S. at 729 (internal quotation marks omitted).

  With respect to the first Strickland prong, the Magistrate Judge explained the elements of the charge to Rodriquez; during the allocution he testified that he understood the consequences of his plea, that he had discussed the charge with Parrotta and understood it, and that the money came from interstate commerce. "Where a defendant . . . has explicitly stated in his allocution that he fully understands the consequences of his plea and that he has chosen to plead guilty after a thorough consultation with his attorney, a district court on habeas review may rely on the defendant's sworn statements and hold him to them." Padilla v. Keane, 331 F. Supp. 2d 209, 217 (S.D.N.Y. 2004). Given the de minimus standard of the Hobbs Act, Rodriquez's allocution, and the government's proffer that it would prove that at least one member of the conspiracy knew the money to be the resources of a business that operated in interstate commerce, Parrotta had no basis to challenge the interstate-commerce element. See, e.g., Jamison, 299 F.3d at 120, n. 2 (explaining that, because robbery of business owner in his home would have depleted cash used to purchase items for his business, "[r]obbing [the victim] in his home was no different in its effect on commerce from robbing a place of business"). Thus, Parrotta was not ineffective for advising Rodriquez to plead guilty to the Hobbs Act charge.

  B. Leadership Enhancement

  Rodriquez contends that he was not the leader of the conspiracy, and, therefore, Parrotta should have objected to the leadership-role enhancement rather than advising him to enter into the plea agreement, and further that he should have requested a Fatico hearing prior to sentencing. With respect to the first Strickland prong, there is no showing that, at the time of either the plea or sentencing, Parrotta had any reason to doubt that Rodriquez took a leadership role. Notably, Rodriquez does not contend that he ever informed Parrotta that he was not the leader; moreover, based on the government's proffer and the PSR, to which Rodriquez did not object, it is apparent that the Government could have successfully established his leadership role. Thus, Parrotta was not ineffective for not challenging the Government's ability to do so or for not requesting a Fatico hearing.

  Even if Parrotta had learned sometime prior to sentencing that Rodriquez denied a leadership role, the failure to request a Fatico hearing could nonetheless be seen as a reasonable, strategic decision. See United States v. Lee, 818 F.2d 1052, 1056 (2d Cir. 1987) (explaining that decision to forgo Fatico hearing may be tactical). At a Fatico hearing, the government could have presented evidence of Rodriquez's leadership role; as demonstrated in the PSR, the government had witnesses who attested that Rodriquez recruited his co-conspirators and organized the robbery. By avoiding a Fatico hearing, Parrotta could reasonably have been trying to avoid highlighting this damaging evidence to the Court.

  II. Blakely Challenge

  In Blakely, the Supreme Court held that the Sixth Amendment prohibits sentences greater than "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 124 S. Ct. at 2537 (emphasis omitted). Subsequently, in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), the Supreme Court held that, if the Federal Sentencing Guidelines remained mandatory, they would run afoul of this prohibition; the Court therefore excised the provision of the Federal Sentencing Act that made the Guidelines mandatory. See 125 S. Ct. at 764 (invalidating 18 U.S.C. § 3553(b)(1)).

  In a comprehensive and well-reasoned decision, Judge Trager recently concluded that Blakely and Booker do not apply retroactively to collateral challenges to judgments that were final at the time those cases were decided. See Hamdani v. United States, 2005 WL 419727 (E.D.N.Y. Feb. 22, 2005). The Court concurs. See Woodard v. United States, 2005 WL 524725 (E.D.N.Y. Mar. 7, 2005). As noted, the Court's judgment became final on April 4, 2003. Rodriguez cannot, therefore, rely on Blakely and Booker to collaterally challenge his sentence. CONCLUSION

  The petition is denied. A certificate of appealability will not issue because Rodriquez has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.


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