United States District Court, S.D. New York
July 11, 2005.
JARLE DELROSARIO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM & ORDER
Jarle DelRosario ("Petitioner") petitions the Court to vacate,
set aside, or correct his sentence under 28 U.S.C. § 2255.
Specifically, Petitioner seeks "retroactive" application of
U.S.S.G § 3B1.2(b) for a two-point minor role reduction. For the
following reasons, the petition is DENIED.
Petitioner was charged in a one-count indictment with
conspiring with others from on or about July 1999 through
February 2, 2000, to distribute at least 5 kilograms of cocaine
and at least 50 grams of crack cocaine in violation of
21 U.S.C. § 846. On November 20, 2001, Petitioner pled guilty to Count One
of the indictment pursuant to a plea agreement. On February 26,
2002, this Court sentenced Petitioner to 108 months imprisonment,
a sentence within the stipulated guideline range. (Sent. Hr'g Tr.
Feb. 26, 2002, at 13.) As he did at sentencing, Petitioner now
argues that he should be granted a two-point reduction for his
minor role in the offense. (See Sent. Hr'g Tr. Feb. 26, 2002,
at 4-7.) The Court rejected Petitioner's arguments then and it
does again now.
An FBI investigation revealed that Petitioner was a member of a
large-scale, wholesale cocaine-trafficking organization based in
the New York City metropolitan area known as the Nunez
Organization. Petitioner was primarily responsible for conducting
narcotics transactions with Nunez Organization customers and
gathering information for Nunez regarding law enforcement
presence in the area and the activities of rival narcotics
groups. On February 1, 2000 Petitioner was arrested for his
involvement in conspiring to distribute at least 500 grams but
less than 1 ½ kilograms of crack cocaine.
The plea agreement, which Petitioner signed with the advice of
his counsel, included stipulations regarding the proper
application of the United States Sentencing Guidelines
("U.S.S.G."). Applying the November 1, 2001 Sentencing Guidelines
Manual, the parties stipulated to: (1) a base offense level of
36; (2) a two-level reduction under the safety valve provision;
(3) a two-level reduction for acceptance of responsibility; and
(4) a one-level reduction for pleading guilty and thus conserving the
Government's and the Court's resources. (Plea Agreement dated
Nov. 16, 2001, at 2-3.) The parties also agreed that Petitioner
could argue at sentencing that he was entitled to an additional
two-point reduction for his minor role in the offense pursuant to
U.S.S.G. § 3B1.2(b). The Government reserved the right to oppose
Petitioner's arguments. In sum, the parties stipulated that
Petitioner's criminal history category was I and his offense
level was either 31 or 29, depending on the Court's § 3B1.2
determination, resulting in a sentencing range of 108 to 135
months or 87 to 108 months, respectively. (Id. at 3.)
The plea agreement contained an additional clause relevant to
the instant petition. The parties agreed that "the defendant will
neither appeal, nor otherwise litigate under Title 28, United
States Code, Section 2255, any sentence within or below the
Stipulated Guidelines Range set forth above (87 to 135 months)."
(Id. at 5.)
At the plea allocution, the Court ascertained that Petitioner
entered into the plea agreement knowingly and voluntarily, and
that he understood that he was waiving his right to appeal any
sentence within the stipulated range. (Plea Hr'g Tr. Nov. 20,
2001, at 9; Sent. Hr'g Tr. Feb. 26, 2002, at 14-15.)
In preparing Petitioner's Presentence Report ("PSR"), the
Probation Department determined that Petitioner was not entitled
to a reduction for playing a minor role in the offense and
calculated his guideline range as 108 to 135 months with a
recommended sentence of 108 months. (PSR ¶ 132).
On February 26, 2002, after reading both parties' submissions
on the minor role issue, hearing arguments from counsel, and
weighing the evidence, the Court found that Petitioner was not a
minor participant and declined to apply a two-point reduction
under U.S.S.G. § 3B1.2. Adopting the guidelines calculation in
the plea agreement and the PSR, the Court sentenced Petitioner to
a term of imprisonment of 108 months followed by three years of
supervised release. (Sent. Hr'g Tr. Feb. 26, 2002, at 13.)
Petitioner did not appeal his sentence, but now brings the
A. Effect of Petitioner's Plea Agreement
As an initial matter, the Court considers the effect of
Petitioner's plea agreement on his petition. Petitioner
explicitly waived his right to appeal or collaterally attack any
sentence within the stipulated guideline range. See Plea
Agreement at 5. "A defendant's waiver of the right to appeal a
sentence within an agreed upon Guidelines range is generally
enforceable." United States v. Garcia, 166 F.3d 519, 521 (2d
Cir. 1999); see also United States v. Djelevic,
161 F.3d 104,106 (2d Cir. 1998) (holding waivers of collateral attacks
under § 2255 are similarly enforceable).
A waiver in a plea agreement of a right to appeal or
collaterally attack a sentence is enforceable if it was knowingly and voluntarily made. See
United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997). "When
the government negotiates a plea agreement with a defendant that
includes waiver of the right to appeal, one benefit the
government is supposed to receive . . . is freedom from having to
address post-conviction arguments." Latham v. United States,
164 F. Supp. 2d 365, 367 (S.D.N.Y. 2001) (dismissing § 2255
petition without an extensive review of its merits because it
violated a "valid and enforceable plea agreement.") "In no
circumstance . . . may a defendant, who has secured the benefits
of a plea agreement and knowingly and voluntarily waived the
right to appeal a certain sentence, then appeal the merits of a
sentence conforming to the agreement. Such an agreement would
render the plea bargaining process and the resulting agreement
meaningless." United States v. Salcido-Contereras, 990 F.2d 51,
53 (2d Cir. 1993) (enforcing a plea agreement's stipulation not
to appeal from a sentence falling within a specified range).
The record of Petitioner's plea hearing shows unequivocally
that he understood that he could not appeal or bring a motion
under § 2255 to attack a sentence within the range set forth in
the agreement. Rule 11 requires that "[b]efore the court accepts
a plea of guilty . . . the court must inform the defendant of,
and determine that the defendant understands . . . the terms of
any plea-agreement provision waiving the right to appeal or to
collaterally attack the sentence." Fed.R.Crim.P. 11(b)(1)(N).
In response to this Court's questions at the plea allocution,
Petitioner stated, under oath, that he had reviewed the plea
agreement with his lawyer, that he understood he was waiving his
right to appeal and to collaterally attack any sentence within
the guideline range, and that the waiver was a condition of the
plea agreement. (Plea Hr'g Tr. Nov. 20, 2001, at 9; Sent. Hr'g
Tr. Feb. 26, 2002, at 14-15.) Petitioner has not claimed that he
entered the plea agreement unwillingly or without knowledge of
the waivers. Accordingly, the Petition could be denied on this
basis alone. See Latham, 164 F. Supp. 2d at 367. As will be
explained below, however, to the extent Petitioner has has any
right to bring this petition, it is meritless. See Cole v.
United States, No. 04 Civ. 2716 (RPP), 2005 WL 217019, at *4
(S.D.N.Y. Jan. 27, 2005) (considering merits of § 2255 petition
even though it violated clear terms of plea agreement).
B. Petitioner's Role in the Offense
Petitioner asks the Court to "retroactively" apply U.S.S.G. §
3B1.2 and reduce his offense level by two points because he
played a minor role in this offense. As he did at the sentence
proceeding, he argues he was a worker at the lower end of the
drug distribution hierarchy. He claims he was simply a lookout or
runner at the street level and did not know the full extent of
the organization and its activities. Finally, he submits he only
contributed in a small way to the success of the organization.
"The intent of the Guidelines is not to `reward' a guilty
defendant with an adjustment merely because his coconspirators
were even more culpable." United States v. Lopez, 937 F.2d 716,
728 (2d Cir. 1991). Defendant's role must be minor or minimal
compared to the average participant in such a crime. See
United States v. Carpenter, 252 F.3d 230, 236 (2d Cir. 2001).
Petitioner began working as a "lookout" for the Nunez
Organization before graduating to the position of "runner." (Sent. Hr'g Tr. Feb. 26, 2002, at 5.)
Petitioner may not have been accorded the highest status in the
organization, but in his latter role he was nonetheless
responsible for conducting narcotics transactions, including
collecting money and delivering drugs. (PSR ¶ 25; Sent. Hr'g Tr.
Feb. 26, 2002, at 5, 12.) Moreover, Petitioner was intercepted on
the wiretaps when he made arrangements for narcotics transactions
with the conspiracy's leader and other members of the
organization. (PSR ¶ 54; Sent. Hr'g Tr. Feb. 26, 2002, at 5, 12.)
Petitioner cannot demonstrate with a preponderance of the
evidence that he was a minor participant. Carpenter
252 F.3d 230. Accordingly the Court denies Petitioner's application.
For the foregoing reasons, Petitioner's motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255 is
DENIED. As petitioner has not made a substantial showing of the
denial of a constitutional right, a certificate of appealability
will not issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the
Court is asked to close the case.
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