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United States v. Cano

July 12, 2007

UNITED STATES OF AMERICA
v.
NESTOR CANO, DEFENDANT.



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

MEMORANDUM DECISION

In this case, defendant Nestor Cano pled guilty on November 5, 2004 to conspiracy to distribute and possess with the intent to distribute heroin in violation of 21 U.S.C. §§ 81, 841(a)(1), 841(b)(1)(A), and 846. Cano was sentenced to a term of imprisonment of 108 months. Now proceeding pro se, Cano moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the grounds that he was denied effective assistance of counsel. For the reasons set forth below, the motion is denied.*fn1

BACKGROUND

A. The Facts

In January and February 2004, Cano and a confidential source (the "CS") had a number of telephone conversations discussing a proposed heroin transaction. (PSR ¶ 7).*fn2 On February 9, 2004, Cano and the CS met at a location in Queens, New York. (Id. ¶ 8). At this meeting, Cano gave the CS a twenty-five gram sample of heroin, and informed him that he wanted to execute a deal for approximately 480 to 500 grams of heroin the following day. (Id.).

On February 10, 2004, Cano and the CS met again in Queens, New York, at a prearranged location. (Id. ¶ 9). Cano entered the CS's vehicle and moments later the CS exited. (Id.). The CS then made a phone call to alert Drug Enforcement Administration ("DEA") agents that the heroin was in the vehicle. (Id.). The agents arrested Cano and found heroin packaged in pellets on the passenger seat. (Id.). The pellets field tested positive for 275 grams of heroin. On March 11, 2004, a relative of the CS who borrowed the vehicle found an additional 275 grams of heroin in the car. (Id. ¶ 9 n. 1). The relative contacted the DEA, which took possession of the additional heroin. (Id.).

The DEA subsequently obtained a search warrant for Cano's apartment. (Id. ¶ 10). There, agents discovered approximately 150 grams of heroin packaged in the same pellet form, as well as additional loose heroin and drug paraphenalia. (Id.).

B. Prior Proceedings

Cano was indicted on March 11, 2004 for conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. (Indict. 1). On October 29, 2004, Cano appeared before the Court and began to plead guilty, without a plea agreement. (Plea Tr. 1). Venue, however, was disputed and Cano did not complete his allocution and the matter was adjourned. (Id. at 21).

Cano completed his allocution on November 5, 2004. (Plea Tr. 2). During the allocution, Cano admitted to helping his boyfriend sell heroin, but he refused to admit that more than one kilogram of heroin was involved. (Plea Tr. 1, 11). Cano waived whatever right he had to a jury trial on the quantity of heroin, however, and on July 18, 2005, I held a Fatico hearing to determine the amount. (Id.). The next day, I ruled and found that Cano was responsible for more than one kilogram of heroin. (Hr'g Tr. 6). I also found that Cano played a greater role in the conspiracy than he claimed. (Sen. Tr. 13).

The Probation Department prepared a presentence report ("PSR") containing a calculation of the appropriate sentence under the United States Sentencing Guidelines ("the Guidelines"). The PSR set the total offense level at 27 on the assumption that only 700 grams of heroin were involved. (PSR 8). The criminal history category was set at I, making the Guidelines range seventy to eighty-seven months. (Id.). Nevertheless, because of the ten-year mandatory minimum sentence for violations of 21 U.S.C. § 841(b)(1)(A), the Probation Department recommended a term of 120 months. (Id.). Neither party filed an objection to the PSR. (Id. at 11; Sen. Tr. 10).

At the hearing on July 19, 2005, there was disagreement between the Government and Cano's attorney over whether Cano still qualified for the safety valve, 18 U.S.C. § 3553(f), which would have provided him with relief from the statutory minimum of 120 months imprisonment. (Hr'g Tr. 11). Cano's attorney was under the impression that he still qualified, while the Government stated that he did not. (Id. at 6, 9). Cano's counsel stated:

If there's anything here that has caused Mr. Cano not to safety valve, it's certainly his lawyer, it's nobody else; because it's not Mr. Cano who entered a guilty plea knowing the law. . . . .

I think at the very least, Mr. Cano should be allowed the opportunity to go back in and safety valve, because it is no lawyer's great pleasure to stand here and admit to inadequacy, certainly not mine, before this Court. But if there was a mistake, it's mine. It is not Mr. Cano. (Id. 12, 14). The Court asked the Government whether it would give Cano another opportunity to make a safety valve proffer. (Id. at 16).

After a recess, the Government reported that it would let Cano make another proffer and, as a result, the proceedings were adjourned. Thereafter, Cano entered into a sentencing agreement (the "Agreement") with the Government. (Sen. Agmt.). Cano and the Government stipulated to a total offense level of 29, based on, inter alia, the agreement that Cano was responsible for three to ten kilograms of heroin. (Id. at 2). The parties also stipulated to a criminal history category of I and a Guidelines range of 87 to 108 months based on their agreement that Cano had met the conditions of the safety valve. (Id.). The Agreement also contained a waiver of Cano's right to appeal or otherwise litigate under 28 U.S.C. §§ 2255 and/or 2241 any sentence within or below the stipulated Guidelines range. (Id. at 4).

At sentencing on August 8, 2005, I conducted another allocution with Cano, confirming that he entered into the Agreement knowingly, intelligently, and voluntarily. (Sen. Tr. at 5-9). During this colloquy, Cano specifically acknowledged that he understood he was waiving his right to appeal or challenge any sentence within the stipulated Guidelines range of 87 to 108 months, to which he answered affirmatively. (Id. at 6, 7). The allocution included the following colloquy: THE COURT: Now, the agreement also says that you are giving up your right . . . to appeal or otherwise challenge ...


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