United States District Court, S.D. New York
July 14, 2005.
FRANCISCO BRITO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge To the Honorable Jed S. Rakoff, United States District Judge:
REPORT AND RECOMMENDATION
Pro se petitioner Francisco Brito has petitioned pursuant to
28 U.S.C. § 2255 to vacate his sentence of 120 months (i.e., ten
years) for conspiracy to distribute and possess with intent to
distribute cocaine in violation of 21 U.S.C. § 846. (05 Civ.
6148, Dkt. No. 1: Pet. ¶¶ 1-4.) Brito's petition asserts that:
(a) his "Sixth Amendment right to a trial by jury were [sic]
violated" because his sentence was "illegally enhanced based on
judicial fact finding which increased the exposure of his maximum
sentence" (Pet. ¶ 12(A)); and (b) the sentencing regime was
unconstitutional because he was "sentenced under a mandatory,
constitutional regime which did not permit the sentencing judge
to exercise his discretion" (Pet. ¶ 12(B)).
For the reasons set forth below, Brito's petition is frivolous
and should be DENIED. ANALYSIS
Brito's petition should be DENIED for four reasons, any one
of which alone is sufficient.
First, Brito pleaded guilty (see 05 Civ. 6148, Dkt. No. 1:
Pet. ¶ 5; see also 00 Cr. 0579, Dkt. entry for 11/22/00), and
his plea agreement waived the right to challenge, on appeal or
via § 2255, any sentence of 120 months or less. (Brito Plea Agmt.
at 4.)*fn1 It is black letter law that such waivers are
valid and binding. See Giraldi v. United States, 01 Civ.
2049, 99 Cr. 1228, 2001 WL 409529 at * 2 (S.D.N.Y. Apr. 3, 2001)
(Peck, M.J.) ("`[T]his Court joins all of the other district
court decisions in this Circuit, the decisions of other Circuit
courts, and the unpublished Second Circuit decision, and holds
that § 2255 waivers are generally enforceable.'") (and cases
Second, Brito's conviction is dated March 14, 2001. (00 Cr.
0579, Dkt. No. 50: Judgment in a Criminal Case.) He did not
appeal. (See Pet. ¶ 8.) Thus, his time to file a § 2255
petition expired one year later, in 2002, long before his June
22, 2005 petition was filed. See 28 U.S.C. § 2255.*fn2 Third, even if petitioner Brito were relying on Blakely and
Booker,*fn3 and thus relying on the one year from which
the "right asserted was initially recognized by the Supreme
Court" prong of § 2255 (see n. 2 above), that would not help
him because the Second Circuit has held that Blakely and
Booker are not retroactively applicable to cases on collateral
review. See, e.g., Guzman v. United States, 404 F.3d 139,
140 (2d Cir. 2005); Green v. United States, 397 F.3d 101, 103
(2d Cir. 2005); Pena v. United States, 04 Civ. 9700, 00 Cr.
36, 2005 WL 1176073 at *3 (S.D.N.Y. May 18, 2005) (Peck, M.J.)
(citing cases); Steele v. United States, 04 Civ. 6918, 02 Cr.
629, 2005 WL 704868 at *16 n. 18 (S.D.N.Y. Mar. 29, 2005) (Peck,
Fourth, even if the Court were to review the merits of Brito's
petition, it has no merit. Brito's sentence does not have an
Apprendi-Booker issue. Brito's sentence was not enhanced
based on judicial fact finding. Rather, while the guideline
calculation was 57 to 108 months (see 00 Cr. 0579, Dkt. No. 54:
3/12/01 Sentencing Tr. at 3), Judge Rakoff was required to
sentence Brito to 120 months because that was the statutory
minimum enacted by Congress for the crime. (See id. at 3, 5; see also 00 Cr. 0579, Dkt. No. 50: Judgment at 7: "There is
a mandatory minimum of 120 months.") As Judge Rakoff stated at
[T]he defendant committed a very serious offense . . .
the mandatory minimums imposed by Congress in these
and other such situations often operate in what
appears to most courts, including this one, to be a
draconian and overly punitive fashion. Nevertheless,
they are the law and this court is duty bound to
carry out the law. . . . I will impose the required
sentence, and it is as follows: That the defendant is
sentenced to 120 months in prison, which is the
statutory mandatory minimum.
(3/12/01 Sentencing Tr. at 5.) As Judge Rakoff correctly stated,
Congressional statutory minimum sentences have been upheld by the
courts. See, e.g., Harris v. United States, 536 U.S. 545,
568-69, 122 S. Ct. 2406
, 2420 (2002) ("The Court is well aware
that many question the wisdom of mandatory minimum sentencing.
Mandatory minimums, it is often said, fail to account for the
unique circumstances of offenders who warrant a lesser penalty.
These criticisms may be sound, but they would persist whether the
judge or the jury found the facts giving rise to the minimum. We
hold only that the Constitution permits the judge to do so, and
we leave the other questions to Congress, the States, and the
democratic processes.") (citations omitted); United States v.
Powell, 404 F.3d 678, 683 (2d Cir. 2005) ("It is, however,
Congress' prerogative to set mandatory minimums. . . ."); United
States v. Sharpley, 399 F.3d 123
, 127 (2d Cir. 2005)
(affirming sentence, holding Crosby remand unnecessary because
defendant had been sentenced to statutory mandatory minimum
rendering any sentencing guideline error harmless), petition for
cert. filed, ___ U.S.L.W. ___ (May 14, 2005) (No. 04-10167);
United States v. King, 345 F.3d 149
, 151 (2d Cir 2003)
("Circuit and Supreme Court precedent make clear that imposition
of a mandatory minimum sentence that does not exceed the
otherwise applicable statutory maximum does not trigger Apprendi's requirements."), cert. denied, 540 U.S. 1167,
124 S. Ct. 1184 (2004); United States v. Luciano, 311 F.3d 146
152-53 (2d Cir. 2002) (finding sentence to the statutory
mandatory minimum was constitutional and not in violation of
Apprendi because it did not exceed the statutory maximum, even
though it did exceed the applicable sentencing guidelines range),
cert. denied, 540 U.S. 1167, 124 S. Ct. 1185 (2004). Any call
for changes to the statutory minimum must be addressed to
Congress, not the courts. Moreover, the mandatory minimum was
triggered by the very issue to which Brito pleaded guilty, not by
any other facts (such as prior felonies). There is no basis for
Brito's habeas claims.
For the reasons set forth above, Brito's July 13, 2005 § 2255
petition should be DENIED.
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 S. 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 S.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).