United States District Court, E.D. New York
April 4, 2005.
DEREK RODRIGUEZ, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
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
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
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
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
* * *
The Court: And you did in fact enter the home to
accomplish that objective?
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.
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
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,
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
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.