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CARO v. U.S.

September 20, 2005.

RAMON CARO, Petitioner,
v.
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 the second or successive petition of Ramon Caro, pursuant to 28 U.S.C. § 2255 ("§ 2255"), to vacate, set aside or amend his sentence. Under the rubric of Coleman v. United States, 329 F.3d 77 (2d Cir. 2003), Maldonado v. United States, 344 F.3d 244 (2d Cir. 2003), and Guzman v. United States, 404 F.3d 139 (2d Cir. 2005), Caro's petition is impermissible and is, therefore, dismissed.

  BACKGROUND

  Arrest and conviction

  Caro was indicted on January 19, 1989. Count One of the indictment charged Caro with participating in a conspiracy to distribute, and to possess with intent to distribute, more than 50 grams of cocaine base (also known as "crack") from in or about September 1987, through in or about April 1988, in violation of 21 U.S.C. § 846. Count Two of the indictment charged Caro with maintaining a facility for the distribution of narcotics in violation of 21 U.S.C. § 856. A jury convicted Caro, who was represented by counsel, on Counts One and Two following a trial before this Court.

  Sentencing

  In the Presentence Report ("PSR") the Probation Department calculated Caro's base offense level to be thirty-six, pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1, based on the determination that Caro's offense conduct involved between 50 and 150 kilograms of cocaine. That level was increased two points, pursuant to U.S.S.G. § 2D1.1(b)(1), for possession of a firearm during the commission of the offense; and four points, pursuant to U.S.S.G. § 3B1.1(a), based on Caro's role as a leader or organizer of the illegal activity. The probation Department deferred to the Court regarding the imposition of a two point enhancement for obstruction of justice. After assigning Caro to Criminal History Category I, the Probation Department offered alternative sentencing range calculations depending on the Court's decision concerning the enhancement for obstruction of justice. The calculation without the enhancement resulted in a total offense level of forty-two, which corresponded to a sentence ranging from 360 months to life imprisonment. The calculation with the enhancement resulted in a total offense level of forty-four, which corresponded to a sentence of life imprisonment. Caro's counsel objected on Caro's behalf to the Probation Department's determination of Caro's base offense level and of the three enhancements. Sentencing Transcript at 8-9, 10-14.

  The Court concluded that the PSR's base offense level determination of thirty-six was appropriate for Caro because Caro's offense conduct involved between 50 and 150 kilograms of cocaine. Id. at 8-9, 15. The Court also determined that the two point firearm enhancement was appropriate, and that a further two point enhancement for obstruction of justice was proper and supported by a preponderance of the evidence. Id. at 15. The Court, however, disagreed with the PSR and added only two points for Caro's role as a manager or organizer of the conspiracy. Id. at 16. Accordingly, the total offense level was forty-two and the applicable sentencing range was 360 months to life imprisonment. The Court sentenced Caro to 35 years' imprisonment on Count One and 20 years' imprisonment on Count Two (to run concurrently with the sentence imposed on Count One). Id. at 17.

  Appeal to the Second Circuit

  Caro appealed the judgment of conviction and sentence. On December 12, 1990, the United States Court of Appeals for the Second Circuit affirmed the judgment of this Court. See United States v. Caro, No. 90-1393 (2d Cir. Dec. 12, 1990) (unpublished mandate).

  Caro's first pro se petition under 28 U.S.C. § 2255

  On May 4, 1993, Caro, acting pro se, filed his first petition under 28 U.S.C. § 2255 alleging ineffective assistance of trial and appellate counsel. On January 18, 1996, the Court denied Caro's petition in all respects without a hearing. See Caro v. United States, No. 93 Civ. 2934 (JFK), 1996 WL 19044 at *2 (S.D.N.Y. Jan. 18, 1996). The Court found that Caro's claim of ineffective assistance of counsel at trial did not satisfy the legal standard under Strickland v. Washington, 466 U.S. 688 (1984). Moreover, the Court found that Caro's claim of ineffective assistance of counsel at sentencing failed as a matter of fact, since defense counsel had objected to the amount of cocaine that was attributed to Caro. Caro, 1996 WL 10944 at *2.

  The advent of AEDPA and Apprendi

  In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") which, among other things, set forth express requirements for second or successive petitions. In particular, under AEDPA's "gatekeeping provisions," an individual seeking to file a second or successive habeas motion must first receive permission to do so from the appropriate circuit court of appeals. See 28 U.S.C. § 2244(b)(3)(A); 28 U.S.C. § 2255 ¶ 8 (requiring that a second or successive motion "be certified as provided in section 2244"). The court of appeals, in turn, may authorize the filing of a second or successive petition only if the movant's application contains a claim based upon "(1) newly discovered evidence . . .; or (2) a new ...


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