United States District Court, S.D. New York
November 21, 2005.
JOSE MULERO, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
OPINION and ORDER
Before this Court are pro se motions of Petitioner Jose
Mulero ("Mulero" or "Petitioner") to vacate, set aside, or
correct his sentence pursuant to 18 U.S.C. § 2255 ("§ 2255"), and
for leave to amend his petition. For the reasons discussed below,
both motions are denied.
On April 3, 2000, through his attorney, John Jacobs*fn1
("Jacobs"), Mulero pled guilty, without a plea agreement, to
Count One of Indictment No. 99 Cr. 1111 (JFK), which charged
Mulero with being a felon in possession of a firearm that had
previously been shipped and transported in interstate commerce,
in violation of 18 U.S.C. § 922 (g) (1). On July 30, 2001,
following extensive argument from both parties and review of the
Probation Department's revised Pre-Sentence Investigation Report
dated July 21, 2000 ("PSR"), the Court sentenced Mulero at the
bottom of the Sentencing Guidelines range, to ninety-two months
of imprisonment, to be followed by three years of supervised
The Court determined that Mulero's base offense level was
twenty-four. The Court added two points to Mulero's sentence because the firearm that Mulero possessed had a defaced serial
number pursuant to U.S.S.G. 2K2.1 (b) (4). (Sent. Tr. 3, 21.) The
Court declined to enhance Mulero's sentence for obstruction of
justice. In fact, the Court awarded Mulero two points for
accepting responsibility through a guilty plea, on the eve of his
scheduled trial. (Sent. Tr. 21.) The Court applied the "rule of
`lenity'" to subtract three criminal history points from the
PSR's calculation because it was unclear whether Mulero had been
treated as a youthful offender in connection with his 1984
attempted robbery conviction. Consequently, the Court concluded
that Mulero fell into Criminal History Category V and not
Category VI, as determined in the PSR. (Sent. Tr. 11-12, 21.) The
Court noted that its decision to subtract points was due, in
part, to Jacobs' lawyering:
THE COURT: You won the point, Mr. Jacobs. You've got
a very good lawyer there, Mr. Mulero, because . . . I
had a lot written down here which is being changed as
we're going along. . . . You're doing a lot better
than you were when I took the bench.
(Sent. Tr. 12.)
On August 26, 2002, Mulero filed the instant petition pursuant
to 28 U.S.C. § 2255, challenging his sentence based on claims of
ineffective assistance of counsel. On February 5, 2003, Mulero
filed a Motion to Amend his § 2255 motion, claiming the Supreme
Court's decision in Ring v. Arizona, 536 U.S. 584 (2002) created a newly recognized right that should be considered in
Mulero has also filed a notice of appeal to the Second Circuit,
which has been held in abeyance pending this Court's resolution
of his § 2255 petition.
I. Motion to Amend Habeas Petition Denied
Petitioner seeks to amend his § 2255 motion to allege that his
constitutional rights were violated based on the Supreme Court's
decision in Ring, 536 U.S. 584. According to Mulero, Ring
recognized a new "statutory right" under which he is entitled
relief. Mulero alleges that both Ring and Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), indicate that his two-level
sentencing enhancement for the altered and obliterated firearm
serial number should have been presented and decided by a jury
and not the Court. (Motion to Amend at 2.) This claim is without
merit however, as it misapplies the holdings and applicability of
both Ring and Apprendi.
The Supreme Court in Ring extended the Apprendi rule to
apply to death penalty cases for facts that serve as aggravating
factors used to enhance a sentence from life imprisonment to
death. Mulero was not charged with a death eligible offense.
Thus, Ring is inapplicable in this case. In Apprendi, 530 U.S. at 490, the Supreme Court held that
"[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt." According to the Second Circuit, Apprendi is
inapplicable to Guidelines calculations that are lower than the
applicable statutory maximum. United States v. Norris,
281 F.3d 357, 359 (2d Cir. 2002); United States v. McLeod, 251 F.3d 78,
82 (2d Cir. 2001; United States v. White, 240 F.3d 127, 136 (2d
Cir. 2001). Mulero's sentence of ninety-two months fell well
below the ten year statutory maximum authorized by 18 U.S.C. 924
(a) (2). Apprendi, therefore, does not apply to Mulero's case.
Even if Mulero's Apprendi claim were to prevail on the
statutory requirements, it fails nonetheless because "Apprendi
is a new rule that does not apply retroactively to initial
section 2255 motions for habeas relief." Coleman v. United
States, 329 F.3d 77, 82, 90 (2d cir. 2003).
The Court denies Mulero's motion to amend his habeas petition
to include Ring and Apprendi claims because such claims are
meritless. Allowing Petitioner to amend would be futile.
II. Habeas Petition is Denied
In his § 2255 petition, Mulero argues that his sentence should
be vacated because he was deprived of his constitutional right to effective assistance of counsel. Mulero claims that his
sentencing counsel was ineffective for the following reasons: (1)
for failing to object to the base offense level computation that
applied to Mulero, pursuant to U.S.S.G. § 2K2.1 (a) (2), based on
his two prior felony drug convictions; (2) for failing to object
to the two-level enhancement that the Court applied, pursuant to
U.S.S.G. § 2K2.1 (b) (4), because the firearm that Mulero
possessed had an altered or obliterated serial number; and (3)
for failing to file a timely notice of appeal on Mulero's behalf.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court adopted a strong presumption that defense counsel provides
effective assistance. To prevail on a claim of ineffective
assistance of counsel, Mulero must demonstrate: (1) "that
counsel's performance fell below an objective standard of
reasonableness," and (2) that counsel's deficiencies were
"prejudicial to the defense." Strickland, 466 U.S. at 688,
691-92; United States v. Gordon, 156 F.3d 376, 379 (2d cir.
1998). Only if both of these elements are satisfied can Mulero
demonstrate that his "counsel made errors so serious that counsel
was not functioning as the `counsel' guaranteed by the Sixth
Amendment." Strickland, 466 U.S. at 687.
In applying the Strickland test, a reviewing court "must
indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance, `bearing in mind that `[t]here are countless ways to provide effective
assistance in any given case' and that `[e]ven the best criminal
defense attorneys would not defend a particular client in the
same way.'" United States v. Aguirre, 912 F.2d 555, 560 (2d
Cir. 1990) (quoting Strickland, 466 U.S. at 689). Mulero must
also affirmatively demonstrate prejudice: that "there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different."
Strickland, 466 U.S. at 694. Mulero fails to establish that
Jacobs's conduct fell below an objective standard of
reasonableness and that it was prejudicial.
Base Offense Level Claim
At sentencing, the Court found, in accordance with the PSR,
that Mulero's base offense level was twenty-four, pursuant to
U.S.S.G. § 2K2.1 (a) (2) ("§ 2K2.1 (a) (2)"). As the PSR
indicates, Mulero had previously been convicted of two felony
drug convictions, consisting of: (1) a 1991 conviction in
Pennsylvania for Possession of a Controlled Substance, and (2) a
1994 conviction in New York for Criminal Possession of a
Controlled Substance in the Fifth Degree. (PSR ¶¶ 32, 39.)
Mulero does not dispute that he was convicted of two prior
felony drug offenses. He claims that his attorney was ineffective
for failing to challenge the PSR's base offense level
computation, pursuant to U.S.S.G. § 2K2.1 (a) (2). Specifically, Mulero claims
ineffectiveness because his prior convictions "did not play a
part in the actual offense charged" in this case, and because the
prior convictions "were not base felony offenses," and were based
on "minor drug offenses, rather than major drug offenses." (Def.
Mem. at 5-6.) Mulero is mistaken, however, as his
characterizations are in fact inconsequential to the calculation
of his base offense level under the Federal Sentencing
According to § 2K2.1 of the Sentencing Guidelines, the Court
should apply the greatest base offense level possible. Under §
2K2.1 (a) (2), a base offense level of twenty-four should be
applied "if the defendant committed any part of the instant
offense subsequent to sustaining at least two felony convictions
of either a crime of violence or a controlled substance offense."
Under § 4B1.2 of the Sentencing Guidelines, a "controlled
substance offense" is defined as:
an offense under federal or state law, punishable by
a term of imprisonment of more than one year, that
prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance
(or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance)
with intent to manufacture, import, export,
distribute, or dispense.
U.S.S.G. § 4B1.2 (b). Mulero's two prior drug convictions are
within this definition. Given that the instant offense was in
fact committed subsequent to sustaining two felony convictions of a controlled substance offense, the Court properly applied a base
offense level of twenty-four.
Mulero also claims that Jacobs should have objected to the
government's failure to file an information stating his previous
convictions. By failing to file an information, the Government,
he claims, prevented the Court from properly enhancing his
sentence. This claim inappropriately relies on United States v.
Levay, 76 F.3d 671, 674 (5th Cir. 1996). Levay concerned a
statutorily imposed minimum sentence, whereas the present case
involves enhancement under the Sentencing Guidelines.
In Levay, 76 F.3d at 672, defendant was sentenced under
21 U.S.C. §§ 841 (a) (1), 841 (b) (1) (A) and 846 for manufacturing
in excess of 1000 grams of a mixture containing a detectible
amount of methamphetamine. The circuit court held that the
district court had improperly enhanced defendant's sentence
pursuant to 21 U.S.C. § 851 because the government did not file a
prior felony information. 76 F.3d at 674. Under Section 841 (b)
(1) (A), any person convicted of a prior drug offense must serve
a minimum of 20 years, and the statute establishes a mandatory
procedure for proving prior convictions. Failure on the part of
the government to file an information stating the previous
convictions, prevents a court "from enhancing a sentencing
under the statute." Id. (emphasis added). In the present case, Mulero was not convicted for a narcotics
felony under "the statute." Mulero was prosecuted under Title 18
for a gun possession felony. The government never sought to
enhance Mulero's statutory sentence based upon the filing of a
prior felony information under Title 21. Mulero's sentence was
enhanced under the Sentencing Guidelines. The statutory
procedures governing prior felony informations in narcotics cases
are unrelated to the computation of a defendant's base offense
level (and criminal history category) under the Guidelines.
Because Mulero was previously convicted of two controlled
substance felonies, his two prior felonies were appropriately
applied to the computation of his base offense level under the
Finally, Mulero claims Jacobs should have objected to the
Court's failure to downwardly depart from the sentencing range
because the Sentencing Guidelines range overstated the
seriousness of his criminal history. It is well established,
however, that a court maintains discretion during sentencing.
See United States v. Ibanez, 924 F.2d 427, 430 (2d Cir.
1991); United States v. Olvera, 954 F.2d 788, 792 (2d Cir.
1992) (stating that the district court was "not required under
the due process clause or the Guidelines to hold a full-blown
evidentiary hearing"); United States v. Shonubi, 998 F.2d 84,
89 (2d Cir. 1993) (noting that the sentencing court "is not bound
by jury findings or evidence presented at trial, but may consider any reliable proof").
Nonetheless, the record reflects that the Court relied on ample
evidence in making its sentencing determination. The Court
directed the preparation of a PSR, permitted Mulero to file
objections to that PSR in advance of sentencing, and heard
Mulero's oral argument before imposing sentence. Furthermore,
Jacobs argued before sentencing that the Court should subtract
points from Mulero's criminal history because Mulero had been
treated as a youthful offender in connection with a 1984
attempted robbery conviction for which he was sentenced to
sixteen months to four years of imprisonment. (Sent. Tr. 9-11.)
Accepting Jacob's argument, the Court applied the "rule of
`lenity'" by subtracting this three-point conviction from
Mulero's criminal history. (Sent. Tr. 11-12.) In so doing, the
Court effectively lowered Mulero's Criminal History Category from
VI to V.
Given the legal standards governing this claim and the facts of
this case, Petitioner's counsel was not unreasonable for failing
to challenge the base offense level calculation, nor can Mulero
Firearm Enhancement Claim
Mulero erroneously challenges his lawyer's failure to object to
the imposition of the two-level enhancement prescribed by
U.S.S.C. § 2K2.1. His lawyer should have objected, Mulero asserts, because Mulero claims he was unaware of the altered and
obliterated serial number and because the Court, Mulero claims,
lacked jurisdiction. Mulero's challenge is erroneous and contrary
to the record.
Mulero's lawyer did object to this enhancement. In a letter
filed with the Court before sentencing on February 6, 2001, as
well as at Mulero's sentencing hearing, Jacobs objected to and
argued extensively against this two-level enhancement. (Sent. Tr.
Even if Jacobs had not objected, there would be no prejudice to
Mulero because the Court's sentence was appropriate and
jurisdictionally sound. The Court applied the two-level
enhancement pursuant to U.S.S.G. § 2K2.1(b) (4) because the
firearm that Mulero possessed did in fact have an altered and
obliterated serial number. (PSR ¶¶ 10, 17.) This two-level
enhancement applies whether or not Mulero knew that the gun's
serial number had been altered or obliterated. United States v.
Williams, 49 F.3d 92, 93 (2d Cir. 1995) (directing that
enhancement be applied "whether or not the defendant knew or had
reason to believe that the firearm was stolen or had an altered
or obliterated serial number") (quoting U.S.S.G. § 2K2.1, comment
(n. 19). Therefore, although Mulero did not plead guilty to the
count regarding the altered and obliterated serial number, the
Sentencing Guidelines and the Second Circuit instruct that it is appropriate and
necessary to apply the two-level enhancement.
Mulero argues that the Court lacked jurisdiction over his case
because "no prohibitive acts or conduct of the defendant moved
beyond the borders of the sovereign state, nor was the defendant
indicted via the government's charging instrument, for an alleged
violation of the Federal Interstate Commerce Statute." (Mem. at
12.) Count One of the Indictment, however, charged Mulero with
violating 18 U.S.C. § 922(g) by possessing a "Norinco nine
millimeter semi-automatic handgun, which had been previously
shipped and transported in interstate commerce." Mulero pleaded
guilty to this Count of the Indictment. Norinco firearms are not
manufactured in the State of New York. (PSR ¶ 10.) Therefore, the
Norinco firearm that Mulero possessed at the time of his arrest
in the Bronx, New York, must have previously traveled in
interstate commerce. The Second Circuit has rejected similar
jurisdictional challenges to § 922(g). See United States v.
Santiago, 238 F.3d 213, 215-217 (2d Cir. 2001).
Mulero fails to establish that Jacobs's conduct with regard to
the firearms enhancement was unreasonable or prejudicial to
Mulero's defense. Appeal Claim
Mulero's final claim of ineffective assistance counsel is
predicated on his belief that Jacobs failed to file a timely
notice of appeal on his behalf. The record reflects that Mulero
was advised of his right to appeal by the Court at his sentencing
(Sent. Tr. 22). In a letter from Jacobs to the Court dated
February 26, 2002, Jacobs maintains that at the time of Mulero's
sentence on July 30, 2001, Mulero himself instructed Jacobs not
to file a Notice of Appeal on Mulero's behalf. Jacobs's letter
states that Mulero "directed me [Jacobs] to turn over his files
and to do no further work on his behalf" and that Mulero
"specifically directed me not to file a Notice of Appeal on his
behalf, that he would handle all legal matters in the future and
that he intended to fire me."
Similarly, in a letter from Mulero to Jacobs, dated August 2,
2001, Mulero requested all of his court transcripts and legal
materials. In this same letter, Mulero informed Jacobs that "I
[Mulero] have taken the liberty to submitt a notice of my intent
to appeal." Indeed, on August 6, 2001, Mulero filed, pro se, a
timely notice of appeal. See Fed.R.App.Proc. 4(b) (1) (A) (i).
Mulero fails to establish that Jacobs's conduct was
unreasonable or prejudicial because Jacobs was acting as Mulero
instructed him to in not filing a notice of appeal, and Mulero
was not prejudiced because timely notice of appeal was filed. Conclusion
For the foregoing reasons, Mulero's request to amend his habeas
petition is denied, and Mulero's petition to vacate his judgment
of conviction is denied. Because the Petitioner has not made a
substantial showing of denial of a constitutional right, a
certificate of appealability will not issue. United States v.
Perez, 129 F.3d 255, 260 (2d Cir. 1997). The Court certifies
pursuant to 28 U.S.C. § 1915(a) (3) that any appeal from this
order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). This case is closed, and the Court
directs the Clerk of the Court to remove this case from the
Court's active docket.
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