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Ochoa-Suarez v. United States

May 27, 2008

NORA ELENA OCHOA-SUAREZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

MEMORANDUM OPINION & ORDER

Petitioner Nora Elena Ochoa-Suarez pleaded guilty to participating in a heroin distribution conspiracy and was sentenced to a mandatory minimum term of ten years' imprisonment. She moves to vacate her conviction pursuant to 28 U.S.C. § 2255 on the ground that her attorney failed to properly explain to her the sentencing consequences of her plea. For the reasons that follow, the motion is denied.

a. Arrest

On or about May 21, 2003, law enforcement agents in Florida arrested Edison Largo at a bus station. At the time, Largo had a black duffle bag containing approximately 2,100 grams of heroin. Largo informed the agents that he had been hired by petitioner Ochoa-Suarez to pick up the heroin in Florida and deliver it to her in New York.

BACKGROUND

Agents accompanied Largo back to New York. At their direction, Largo placed two telephone calls to Ochoa-Suarez and arranged to deliver the heroin to her at a Wendy's restaurant in Queens, New York. At approximately 11:15 a.m., agents observed Ochoa-Suarez arrive near the restaurant in a white minivan. Largo approached the minivan's front passenger side door and placed the black duffle bag containing the heroin on the seat. At that point, agents intervened and arrested Ochoa-Suarez. A search of the van turned up approximately $28,020.

b. Guilty Plea

On June 12, 2003, a grand jury returned a one-count indictment charging Ochoa-Suarez with conspiracy to possess with intent to distribute one kilogram and more of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Represented by her retained attorney, Ms. Sabrina Shroff, petitioner eventually decided to plead guilty without the benefit of a plea bargain.

About a month before the plea, the government provided Ms. Shroff with a letter, pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), setting forth the government's position on the application of the guidelines to the case. The letter stated that Ochoa-Suarez's offense carried a mandatory minimum sentence of ten years and a maximum sentence of life. It calculated her base offense level to be 34 because of the amount of heroin for which she was responsible. The letter also recommended a three-level enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 3B1.1 because she was a manager or supervisor (but not an organizer or leader) of the conspiracy. This produced an adjusted offense level of 37, which, combined with a Criminal History Category of I, yielded an applicable guideline range of 210 to 262 months' imprisonment.

On March 9, 2004, Ochoa-Suarez appeared before me and, assisted by a translator, pleaded guilty to the sole count of the indictment. Before accepting her plea, I conducted a hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. At the outset of the hearing, Ochoa-Suarez was placed under oath and admonished that any false statements could lead to future prosecution. Ochoa-Suarez affirmed that she had never been under the care of a doctor or psychologist for mental or emotional problems, had no history of substance abuse, was in good health and was not then under the influence of any drugs or alcohol. She stated that she had seen a copy of the indictment and discussed it with her attorney, had told her attorney everything about her case, and was satisfied with her attorney's representation.

The Court then confirmed that she understood that she had the right to go to trial, where she would be presumed innocent unless the government proved her guilty beyond a reasonable doubt to the satisfaction of all twelve jurors. The Court also explained all of the attendant rights she would enjoy at trial. Petitioner stated that she understood these rights and was willing to waive them by pleading guilty.

Next, Ochoa-Suarez was informed of the direct and collateral consequences of her guilty plea. The Court stated that her conviction carried a statutory maximum sentence of life and that "[t]here is a mandatory minimum period here of imprisonment of ten years." (Plea Tr. at 7.) Ochoa-Suarez responded that she understood this. The Court also informed her of the maximum period of supervised release and the maximum fine that she faced, and the likelihood of deportation upon her release from prison. In addition, I advised her that the government, in its Pimentel letter, calculated her applicable guideline sentencing range to be 210 to 262 months. I then explained that I was required to consider the guidelines in determining her sentence, and that I alone would determine her sentence.

Ochoa-Suarez was then asked whether she had "been induced to offer to plead guilty by reason of any promise or statement by anybody to the effect that you would get leniency or special treatment by pleading guilty instead of going to trial." (Plea Tr. at 10). Her response was "No, your honor." (Id.) She also confirmed that she was pleading guilty of her own free will and without any pressure or threats of force. She stated that there was nothing she wished to ask about the consequences of her plea because her "attorney [had] already explained to me all the important things." (Id. at 11).

Ochoa-Suarez admitted that she agreed with at least one other person to possess one kilogram and more of heroin with the intent to distribute it. Following ...


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