United States District Court, S.D. New York
September 16, 2005.
Hector Reyes, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
OPINION and ORDER
Before the Court is Hector Reyes' pro se motion to correct
his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated
herein, the motion is denied.
THE INDICTMENT AND PLEA AGREEMENT
On December 4, 2001, Reyes and seventeen other defendants were
indicted on two counts. Count One, the only count naming Reyes,
charged him and twelve other individuals with conspiracy to
distribute five kilograms and more of cocaine, in violation of
21 U.S.C. § 846.
Represented by his privately-retained attorney, Reyes entered
into a Plea Agreement with the Government dated March 25, 2002.
The agreement stipulated that (i) Reyes' base offense level would
be 36 pursuant to United States Sentencing Guidelines
("Guidelines" or "USSG") § 2D1.1(c) (2) because his conduct
involved at least 50 kilograms but less than 150 kilograms of
cocaine; (ii) Reyes' plea of guilty would merit a two-level
decrease in offense level for acceptance of responsibility
pursuant to USSG § 3E1.1(a); (iii) Reyes would receive a
one-level reduction pursuant to USSG § 3E1.1(b)2 for his timely acceptance of the plea agreement; and (iv) the resulting offense
level would be 33. The parties further stipulated that Reyes'
Criminal History Category was I, and that the total Guidelines
range was 135 to 168 months. The agreement also provided:
The parties agree that the defendant does not intend
to seek relief from the statutory minimum sentence
provision pursuant to Title 18, United States Code,
Section 3553(f), nor does he seek a reduction in
sentence pursuant to U.S.S.G §§ 2D1.1(b)6 and 5C1.2.
. . . .
The parties agree that neither a downward nor an
upward departure from the Stipulated Guidelines Range
of 135 to 168 months is warranted.
. . . .
It is further 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 of
135 to 168 months. . . .
Plea Agreement at 2-4.*fn1
THE PLEA PROCEEDING
On March 25, 2002, Reyes pleaded guilty before Magistrate Judge
Douglas F. Eaton. Magistrate Judge Eaton noted that Reyes was
receiving simultaneous translation of the proceeding from a
Spanish interpreter. Plea Transcript at 2. Reyes confirmed that
he had never been treated for mental illness and that, while he
had at one time been a drug addict, he was not then under the
influence of any drug. Id. at 4-5. Reyes also confirmed that he had reviewed the charge against him with his
attorney, and that he was satisfied with his attorney's
representation of him. Id. at 5.
Magistrate Judge Eaton then addressed the Plea Agreement, which
Reyes stated he had reviewed with the assistance of his attorney
and an interpreter. Id. at 6. Reyes confirmed that no promises
other than those contained in the Plea Agreement were made to him
to induce his guilty plea. Id. Reyes also expressed his
understanding that the sentencing judge might impose a sentence
deviating from the range stipulated in the Plea Agreement and
that, nevertheless, Reyes would be bound by his guilty plea.
Id. at 6-7.
Magistrate Judge Eaton then explained the possible sentence
faced by Reyes, noting that Congress has imposed a maximum
sentence of life for the charged offense. Id. at 7-8. He
further explained that the sentencing judge would consider the
Guidelines to determine Reyes' sentencing range, and would then
decide whether any departure from that range is appropriate.
Id. at 8-9. Reyes confirmed that he was pleading guilty of his
own free will and because he was guilty of the charged conduct.
Id. at 10. After explaining at length the potential
consequences of Reyes' guilty plea, including a statutory minimum
of 10 years' incarceration and mandatory supervised release,
Magistrate Judge Eaton turned to the specific terms of the Plea
Agreement. Id. at Magistrate Judge Eaton noted that, under the terms of the Plea
Agreement, Reyes agreed to seek no departure from the stipulated
range of 135 to 168 months nor from the statutory 10 year
minimum. Id. at 14. Magistrate Judge Eaton also apprised Reyes
that his rights of appeal were limited by the Plea Agreement.
Specifically, he explained that "[i]f [the sentencing judge]
imposes a sentence of no more than 168 months, you have agreed in
advance that you will not take an appeal." Id. at 15.
Magistrate Judge Eaton then explained all of the rights that
Reyes would have had at trial if he entered a plea of not guilty.
Id. at 16-19. Reyes confirmed his understanding that, by
pleading guilty, he was relinquishing those rights and that the
sentencing judge may impose a sentence as though he had been
found guilty. Id. at 19. The Government then stated the
elements it would have had to prove at trial and summarized the
evidence supporting the charge. Id. at 20-21. Reyes then
admitted the charged conduct, his participation in a conspiracy
to distribute approximately 65 kilograms of cocaine. Id. at 21.
Magistrate Judge Eaton then read Count One of the indictment,
to which Reyes pleaded guilty. Id. at 23-24. Magistrate Judge
Eaton determined that Reyes was competent to enter a plea. He
also found that the plea was voluntary and supported by a factual
basis. Id. at 24. Magistrate Judge Eaton recommended that the Court accept Reyes' plea. Id. at 25. On
May 2, 2002, the late Judge Allen G. Schwartz accepted the
Reyes appeared before the Court on June 18, 2003 for
sentencing. Although counsel continued at all times to represent
Reyes, Reyes submitted to the Court two pro se letters which
counsel had neither received nor read. Sentencing Transcript at
2-3. The letters requested a downward departure for extraordinary
rehabilitation, extraordinary family circumstances and minimum
participation, and for relief under the "safety valve" clause,
18 U.S.C. § 3553(f). Id. Counsel stated that "we withdrew any
motions for the safety valve and/or for the minimal
participation" as part of the plea negotiations. Id. at 3.
Counsel explained that the Government's possession of evidence
relating to Reyes' role in a narcotics-related kidnapping scheme
inspired his decision not to move for the departures. Id.
Counsel confirmed that he had discussed the probation
department's pre-sentence report ("PSR") with Reyes. Id. at 4.
When the Court asked Reyes if he was ready for sentencing, Reyes
replied that he was not. Id. The Court informed Reyes that it
would hear his reasons for not being ready. The Court continued: But so far as these applications for downward
departures on the grounds of extraordinary
rehabilitation, unusual or extraordinary family
circumstances and minimum participation, I find
nothing in the probation report or anything in Judge
Schwartz's file that in any manner, shape or form
would entitle you to a downward departure. I'm well
aware of my right to depart if the case is out of the
heartland. I don't believe in [sic] that this case in
any manner, shape or form is out of the heartland.
Also, I do not believe that the defendant is entitled
to safety valve treatment.
Id. at 4-5.
Reyes then began to explain his family circumstances. The Court
interjected, explaining that Reyes would have an opportunity to
speak on this immediately before sentencing and that he should
now only address the narrow question of whether there existed any
reason for adjournment. Id. at 5-6. Reyes responded: "There is
a reason. I haven't been able to be in touch with my lawyer for
all of this time. Ever since I signed up for that plea agreement,
my lawyer hasn't come back to visit me." Id. at 6. Reyes also
stated that he would like to change his counsel or represent
himself pro se. Id. Counsel responded that he had continued
communication with Reyes and his family even after the Plea
Agreement. Id. He also described his attempts to bargain with
the Government to negotiate favorable changes to the Plea
Agreement by offering Reyes' cooperation. Id. at 6-7. Counsel
maintained that the Government would not offer either a safety
valve or minimum participation reduction because Reyes failed to cooperate before entering the plea. Id. at 7.
Reyes then reiterated that Counsel represented him until he
signed the Plea Agreement but was out of touch thereafter. Id.
The Court informed Reyes of his right to replace his attorney and
that the Court would adjourn the sentencing if Reyes so desired.
Id. at 7-8. Reyes responded that he was ready for sentencing
and desired for his attorney to continue representing him. Id.
The attorney made a statement on behalf of Reyes and requested
that the Court impose a sentence at the bottom of the stipulated
sentence range. Id. at 8-10. The Court sentenced Reyes to 135
months' incarceration, followed by five years of supervised
release, and a $100 special assessment. Id. at 11-12. The Court
then advised Reyes of his right to appeal except to the extent he
had given up that right in the plea agreement. Id. at 13.
THE § 2255 MOTION
Reyes filed his Section 2255 motion pro se on June 25,
2004. He claims that his defense counsel failed to move for a
downward departure pursuant to USSG § 5C1.2. He has also attached
a letter requesting a downward departure on grounds of
extraordinary family circumstances and minimum participation.
DISCUSSION Relief from a final judgment under Section 2255 is generally
available only "for a constitutional error, a lack of
jurisdiction in the sentencing court, or an error of law or fact
that constitutes `a fundamental defect which inherently results
in a complete miscarriage of justice.'" United States v. Bokun,
73 F.3d 8, 12 (2d Cir. 1995). A Section 2255 motion may not serve
as a substitute for an appeal. United States v. Munoz,
143 F.3d 632, 637 (2d Cir. 1998). Furthermore, a defendant's failure to
raise a claim on direct appeal also known as procedural default
generally bars review of the claim under Section 2255 unless he
can show cause for the default and actual prejudice resulting
therefrom. See Bousley v. United States, 523 U.S. 614, 622-23
(1998). However, this procedural default rule does not apply to
ineffective assistance of counsel claims, which may be considered
in a Section 2255 motion even if not raised on direct appeal.
Massaro v. United States, 538 U.S. 500, 503 (2003).
Reyes claims that he was deprived of effective assistance by
his counsel's failure to move the Court for a downward departure
pursuant to USSG § 5C1.2, the "safety valve" provision. He also
submits a letter seeking a departure for extraordinary family
circumstances and minimum participation. Reyes did not raise the
two latter issues on direct appeal. Therefore, application of the
procedural default rule normally would bar these claims because
Reyes has not alleged that his attorney's failure to move the Court for the requested relief
deprived him of effective assistance of counsel. However, we hold
pro se submissions to a "less stringent standard? than
formal pleadings drafted by lawyers." Haines v. Kerner,
404 U.S. 519, 521 (1972). It is obvious from the sentencing
transcript and from Reyes' Section 2255 petition that he desired
to move for departures on these grounds as well as for safety
valve treatment. Thus, the Court will consider these claims as
part of his ineffective assistance claim.
It is well-settled that "[t]here is no general bar to a waiver
of collateral attack rights in a plea agreement." Frederick v.
Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195 (2d
Cir. 2002) (citation omitted). While such waivers do not
"foreclose an attack on the validity of the process by which the
waiver has been procured," i.e., the plea agreement, id.
(citation omitted), Reyes does not claim that ineffective
assistance tainted the plea bargaining or agreement process.
Although the Second Circuit has suggested that ineffective
assistance of counsel in entering a plea agreement "might cast
doubt on the validity of [a defendant's] waiver," United States
v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998), this is not such
Instead, Reyes asserts that his counsel was ineffective at
sentencing for failing to move the Court for the downward departures. The Court of Appeals for the Second Circuit, however,
has rejected an analogous attempt to circumvent a waiver of
appellate rights with a claim of counsel's deficiency at
sentencing. In United States. v. Djelevic, the defendant
attempted "to dress up his claim as a violation of the Sixth
Amendment, [but] in reality [was] challenging the correctness of
his sentence under the Sentencing Guidelines, and [was] therefore
barred by the plain language of the waiver contained in his plea
agreement with the government." Id. The court observed, "If we
were to allow a claim of ineffective assistance of counsel at
sentencing as a means of circumventing plain language in a waiver
agreement, the waiver of appeal provision would be rendered
meaningless." Id. Thus, the court "emphatically reject[ed]" the
defendant's claim. Id.
The Djelevic decision compels similar disposition of Reyes'
claim. The Plea Agreement between Reyes and the Government
expressly waives Reyes' right to challenge through a Section 2255
motion any sentence within the stipulated range of 135 to 168
months. The Court sentenced Reyes to 135 months' imprisonment,
the bottom of the agreed-upon range. Thus, the Court does not
reach the merits of Reyes' ineffective assistance claim and the
motion is dismissed.
For the foregoing reasons, Hector Reyes's motion to correct his sentence pursuant to 28 U.S.C. § 2255 is dismissed.
This case is closed, and the Court directs its removal from the
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