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United States v. Ballasteros

March 16, 2007

UNITED STATES OF AMERICA
v.
SAHULON BALLESTEROS, DEFENDANT.



The opinion of the court was delivered by: Chin, D.J.

MEMORANDUM DECISION

Defendant Sahulon Ballesteros pled guilty to an indictment charging him with one count of conspiracy to import and export five kilograms or more of cocaine. He was sentenced to a term of imprisonment of 120 months. Now proceeding pro se, Ballesteros moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the grounds that (1) his plea was involuntary because he did not understand the charges against him or the consequences of his plea, (2) the Court erred in failing to determine the exact quantity of drugs attributable to him before imposing the mandatory minimum sentence of ten years, and (3) he was denied effective assistance of counsel. For the reasons set forth below, the motion is denied.*fn1

BACKGROUND

A. The Facts

From 1990 through 2000, Alberto Orlande Gamboa arranged for the shipment of more than 100,000 pounds of cocaine from Colombia and Venezuela into the United States and other countries. (PSR ¶ 10).*fn2 To assist him, German Libonatty, William San Miguel, Julio Annicharico Santrich, Danilo Caballero, Alvaro Caballero, Armando Davila, Musa Jacob Nader Romanos, and the defendant, Sahulon Ballesteros, helped establish and maintain drug trafficking routes between Colombia and the United States. (Id. at ¶ 11). From 1996 through 1998, these individuals, including Ballesteros, conspired to ship cocaine from Colombia and Venezuela to the United States. (Id. at ¶ 19-20). Ballesteros was also Gamboa's personal assistant from 1996 through 1997. (Plea Tr. 13). Generally, Ballesteros drove a car to transport Gamboa around Cali, Colombia and delivered messages to and from Gamboa in connection with the cocaine trafficking. (Id.).*fn3

B. Prior Proceedings

Ballesteros was indicted on March 26, 2003 for conspiracy to import cocaine into the United States from Colombia and Venezuela. By letter dated November 11, 2005, Ballesteros entered into a plea agreement -- which was negotiated by his attorney, Martin L. Schmukler, Esq. -- with the Government. The plea agreement provided that Ballesteros would plead guilty to violating 21 U.S.C. §§ 963, 952(a), and 960(b)(1)(B), in connection with his participation in a conspiracy to distribute at least 150 kilograms of cocaine. (Plea Agmt. 2). The parties stipulated to a total offense level of 27 and a criminal history category of I.*fn4

An offense level of 27 with a criminal history category of I carries a guideline range of 70 to 87 months. As explained in the plea agreement, however, because Ballesteros was pleading guilty to a conspiracy involving five or more kilograms of cocaine he was subject to a mandatory minimum of 120 months imprisonment absent relief under the safety valve, 18 U.S.C. § 3553(f). (Plea Agmt. 2). Ballesteros further stipulated that he used "violence or credible threats of violence or possessed a firearm or other dangerous weapon in connection with the offense," which rendered the safety valve inapplicable. (Id. at 3). Hence, as Ballesteros stipulated in the plea agreement, he was not eligible for the safety valve and his guideline sentence was 120 months -- the minimum sentence proscribed by law. (Id. at 2-3). The plea agreement also contained a waiver of Ballesteros's right to appeal or otherwise litigate under 28 U.S.C. §§ 2255 and/or 2241 any sentence at or below the stipulated guideline sentence of 120 months. (Id. at 4).

On December 19, 2005, Ballesteros appeared before me and with the assistance of an interpreter pled guilty pursuant to the plea agreement. Ballesteros confirmed that he discussed the plea agreement with his attorney and that he fully understood it before signing. (Plea Tr. 4, 11-12). He further confirmed that he understood the consequences of pleading guilty and that he was entering his plea knowingly and voluntarily. (Id. at 4-7, 9-12, 17-19). The allocution also included the following colloquy:

THE COURT: All right. No one, not your lawyer, not the government, can make promises to you as to what your sentence will be. Because I cannot decide what your sentence is until after the presentence report is completed, I've ruled on any objections to the report, and I have decided whether there is any basis to go above or below the guidelines range. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And in the end, if it should turn out that your sentence is different from what you expect or from what anyone has told you it might be, you will still be bound to your guilty plea and you will not be allowed to withdraw your plea of guilty? Understood?

THE DEFENDANT: Yes.

THE COURT: All right. Now in your plea agreement, you agree that you would not appeal or otherwise try to challenge any sentence at or below the stipulated sentence of 120 months. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And according to the plea agreement, it appears that your sentence will be 120 months, that the mandatory minimum applies. And that your ...


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