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U.S. v. CEDENO

September 12, 2005.

UNITED STATES OF AMERICA,
v.
JONATHAN CEDENO a/k/a JUAN MANUEL HORTA-CORREA, Defendant.



The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

Introduction

Jonathan Cedeno, proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Cedeno asserts two grounds in support of his petition. He first claims that his sentence is unconstitutional in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He next claims that he received ineffective assistance of counsel.

  As set forth more fully below, Cedeno's petition is denied because he waived his right to collaterally attack his sentence; Blakely and Booker do not apply retroactively on collateral review; and petitioner did not receive ineffective assistance of counsel.

  I. Facts

  Cedeno was charged in a two-count indictment with violations of the federal narcotic laws. Specifically, Count One charged Cedeno with conspiracy to distribute and possess with intent to distribute "3,4 methylenedioxy-methamphetamine," commonly know as "ecstasy," in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. (Indictment No. S2 Cr. 1359). Count Two charged Cedeno with attempting to distribute ecstasy and attempting to possess ecstasy with intent to distribute it, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C). (Id.).

  In the course of that litigation, Cedeno's counsel filed a motion to suppress physical evidence recovered and statements made at the time of his arrest, which the Court denied. (Tr. dated Feb. 13, 2003 at 94:7-22). Thereafter, the government filed a prior felony information pursuant to 21 U.S.C. § 851, setting forth that on two prior occasions Cedeno had been convicted of a felony narcotics offense in Rhode Island, namely, possession with intent to distribute heroin and delivery of cocaine. (Prior Felony Information dated May 20, 2003). The prior felony information subjected Cedeno upon conviction to the enhanced penalty provision set forth at 21 U.S.C. § 841(b)(1)(C). That provision, in turn, establishes a 30-year maximum sentence for each of the offenses with which Cedeno was charged. 21 U.S.C. § 841(b)(1)(C) (1999).

  Cedeno subsequently entered into a plea agreement with the government and pled guilty to both counts of the indictment. (Plea Agreement dated July 24, 2003, Ex. A to Govt.'s Mem. in Opp'n to Pet. of Jonathan Cedeno; Tr. dated July 28, 2003 at 20:11-21:2). The plea agreement set forth that "in light of the filing of a prior felony information pursuant to 21 U.S.C. § 851, Counts One and Two each carry a maximum sentence of thirty years' imprisonment. . . ." (Plea Agreement dated July 24, 2003 at 1, Ex. A to Govt.'s Mem. in Opp'n to Pet. of Jonathan Cedeno).

  In the agreement, Cedeno also stipulated to a guideline sentencing range of between 188 and 235 months' imprisonment and agreed to waive his right to seek a downward departure or adjustment from that sentencing range. (Id. at 3). The agreement also set forth that notwithstanding the stipulated guideline range, "the sentence to be imposed upon the defendant is determined solely by the Court." (Id. at 4). Finally, Cedeno agreed that he would not "file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 . . . any sentence within or below the Stipulated Sentencing Guidelines Range of 188 to 235 months." (Id. at 4).

  At Cedeno's plea allocution, the Court asked Cedeno whether he had read the plea agreement before he signed it, and he answered "Yes, I did." (Tr. dated July 28, 2003 at 15:2-4). The Court also asked Cedeno whether he fully understood the agreement before he signed it, to which he again answered, "Yes, I did." (Id. at 15:8-10). In addition, the Court asked Cedeno whether the agreement contained every understanding with respect to his plea and sentence, and he answered, "Yes." (Id. at 15:11-21).

  When the Court asked Cedeno whether he understood that he had "waived [his] right to file an appeal or to collaterally attack [his] sentence," if the Court sentenced him within or below the stipulated guideline range of 188 to 235 months, Cedeno answered, "Yes, sir." (Id. at 16:1-5). Cedeno gave the identical answer when the Court asked him whether he understood that the Court had the power to impose a sentence upon him of up to 60 years. (Id. at 12:4-7). Finally, the Court asked Cedeno whether he understood that "if Mr. Warburgh [Cedeno's counsel] . . . has told you what your sentence is going to be, or even if you have an expectation as to what your sentence is going to be, they all and you could be wrong? Do you understand that?" To that question, Cedeno answered, "Yes." (Id. at 13:25-14:6).

  Cedeno was sentenced principally to 188 month's imprisonment — the bottom of the guideline sentencing range to which he had stipulated. (Tr. dated Feb. 5, 2004 at 9:21-10:3). Petitioner asserts that following his sentencing, he asked his attorney, Paul E. Warburgh, Jr., to file an appeal on his behalf but that Warburgh never filed a notice of appeal because Warburgh said an appeal was not in Cedeno's best interests.

  In response to Cedeno's petition, the Court directed Warburgh to "submit an affidavit . . . addressing (1) whether he advised petitioner that he would receive a sentence of not more than ten years if he pled guilty; (2) the basis for not arguing to the Court at sentencing that petitioner was entitled to treatment as a minor participant in the crime of which he was convicted; and (3) whether he consulted with petitioner about filing an appeal on petitioner's behalf, and the basis for not filing a notice of appeal on petitioner's behalf." (Order dated Aug. 10, 2005). The Court allowed petitioner time to reply. (Id.).

  In Warburgh's affidavit, he swears specifically that Cedeno did not ask him to file an appeal. (Affidavit of Paul E. Warburgh, Jr. dated Aug. 25, 2005 at 2). Instead, Cedeno merely "inquired about an appeal" and Warburgh "informed him that he had waived his right to do so under the terms of the plea agreement. Additionally, there were actually no appealable issues." (Id.). Warburgh maintains that Cedeno "agreed with [him] and followed [his] advice." ...


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