The opinion of the court was delivered by: Hurley, Senior District Judge
On §2255 Application (doc. #1)
Petitioner Jorge Jaime Soto-Gil ("Petitioner" or "Soto-Gil") moves pursuant to 28 U.S.C. §2255 to vacate, set aside or correct his sentence arising from his 2002 conviction in this Court. The basis for this § 2255 Application is two-fold: (1) ineffective assistance of trial counsel, and (2) incorrect calculation of Petitioner's net offense Guideline level. For the reasons set forth below, the Application is DENIED.
On July 17, 2002, Soto-Gil plead guilty to a one-count information charging him with conspiracy to possess with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846. At that time, he was represented by Attorney Joseph A. Gentile of Frankie & Gentile, pursuant to a CJA appointment. Also at that time, Soto-Gil presented himself as Oscar Fernando Vindas-Fonseca, a Costa Rican national with no prior criminal record. Indeed, this false identity was perpetrated by Petitioner from the time of his March 7, 2002 arrest until August 7, 2002. On August 7th, during a pre-sentence interview with the Probation Department, Soto-Gil was confronted with the results of a fingerprint check which disclosed his true identity and nationality, i.e., being Jorge Jaime Soto-Gil, a Colombian national with a prior felony drug conviction for functioning as a courier in a large-scale cocaine distribution.
The revelation of Petitioner's true identity and true criminal history had significant consequences on Soto-Gil's case. For example, the Government withdrew its original Plea Agreement with Soto-Gil. Under that original Agreement, the Government was to propose an applicable Guideline level of 19 with a possible sentence of 30 to 37 months,*fn1 despite having been advised by the Magistrate Judge at his initial plea allocution that the applicable conspiracy charge carried a mandatory minimum sentence of five years (i.e., 60 months).*fn2 When Petitioner's true identity came to light, however, the Plea Agreement was modified, and the Probation Department revised its recommended imprisonment sentence to 70 to 87 months. (See Pre-Sentence Report ("PSR") at ¶61, attached as Ex. 4 to Gov'ts' Response.) This recommended increased sentence included an adjustment for obstruction-of-justice adjustment and no longer included an acceptance-of-responsibility adjustment. (See id. at ¶¶24-31.)
Soto-Gil's attorney acknowledged the increased sentence consequence. In a letter to the Court, Soto-Gil's attorney stated, inter alia:
Obviously, the legal implication from these developments [i.e., learning the true identity and criminal record of Petitioner] rendered the terms of the original plea agreement to be inapplicable. Further, counsel for defendant and the government will need to have discussions regarding whether a plea agreement can be modified to reflect the present circumstances and, at the same time, resolving collateral legal issues resulting from these revelations.
At this time, although the defendant understands that the guideline estimates at the time of the plea allocution are no longer applicable, he is not requesting formal withdrawal of his guilty plea despite enhanced penalties (mandatory statutory minimum) provided an agreement regarding the collateral consequences of these revelations can be achieved with the government.
(Letter from Joseph A. Gentile, Esq., Frankie & Gentile, P.C., to Hon. Denis R. Hurley, U.S. District Court Judge, Eastern District of New York (Aug. 12, 2002), attached as Ex. 5 to Gov'ts' Response.) In the end, Soto-Gil re-affirmed his guilty plea.
THE COURT: Judge Orenstein took the plea in this case. I reviewed the plea minutes. It appears to me that the allocution conforms with Rule 11. Accordingly, I'm prepared to accept the plea if that's satisfactory to both the government and defense. Mr. LaRusso, satisfactory?
MR. LaRUSSO: It is, your Honor. I should note that on the 4th you conducted quite a lengthy inquiry of the defendant regarding the plea that he entered, and the defendant had admitted on the record at that time that he was well aware of all the consequences of his actions, withholding his identity, and still voluntarily agreed to have that plea stand.
THE COURT: Thank you. I think that's a correct statement. We went through this on a prior occasion. We have basically the plea allocution that was taken by Judge Orenstein, and then the subsequent discussion concerning whether the defendant was electing to stand by his plea. I'm prepared, now, to accept the plea based on everything that's transpired thus far, unless there's some reason I shouldn't do so. As I understand it, the government has no objection to that. Does the defense have any objection?
MR. GENTILE: Absolutely none, your Honor. As you may recall, it was our request to ask for that supplemental conference because we felt, to make the record clear, it should be indicated that we continued with the plea. We had negotiations with the government regarding any collateral issues relating to what occurred. Mr. Soto-Gil's position is we want to go forward.
THE COURT: The plea is accepted. (Soto-Gil Sent. Hrg. at 2:16-3:23, attached as Ex. 6 to Gov'ts' Response.) Before imposing sentence, the Court further ...