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Perez v. United States

January 5, 2010

JOSE PEREZ PLAINTIFF,
v.
UNITED STATES OF AMERICA DEFENDANT.



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

OPINION & ORDER

Petitioner Jose Perez ("Petitioner" or "Perez") pleaded guilty to conspiracy to distribute and possess with intent to distribute 3,4-methlyenedioxymethamphetamine (commonly known as "ecstasy"). He currently is serving a 63-month prison term imposed by this Court on December 14, 2006. He moves to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 on the grounds that his attorneys failed to properly explain the terms of the plea agreement and failed to raise on direct appeal meritorious arguments concerning the propriety of Petitioner's sentence. For the reasons that follow, the motion is denied.

I. BACKGROUND

A. Arrest

Perez testified to the following facts at his Fatico hearing on October 11, 2006:

At about 12:00 p.m. on April 12, 2005, Petitioner's brother-in-law, Efrain Rivera ("Rivera"), placed a bag containing 5,000 pills - 2,000 of which were ecstasy, 3,000 of which were fake - in Perez's car, which was parked outside Perez's residence in Bronx, New York. Rivera subsequently called Perez to notify him of the bag that he placed in his car and to offer him $200 to transport the pills to 174th Street and Fort Washington Avenue in Manhattan, New York, where Rivera had arranged to sell the pills to a third party. At the plea proceeding on December 1, 2005, Perez acknowledged that the package contained an illegal substance. Unbeknownst to Rivera or Perez, the third party seeking to buy the pills was in fact a confidential source ("the CS") acting under the supervision of the Drug Enforcement Agency ("DEA").

Perez agreed to transport the pills for Rivera. At around 4:00 p.m., Perez drove to 174th Street and Fort Washington Avenue, and, upon arriving, Rivera transferred the bag of pills from Perez's car to his own vehicle. Perez then returned to the Bronx.

After Perez reached the Bronx, Rivera called him again, requesting that he meet with a man named Giovanni to deliver cocaine to the same location in Manhattan. Perez maintains that he refused to transport the cocaine, but agreed to meet with Giovanni at a restaurant in the Bronx. Perez was at the restaurant for about 45 minutes and then returned to the vicinity of his home. Perez, Giovanni, and a third man who Perez did not know, met near Perez's home. Perez then drove back to 174th Street and Fort Washington Avenue to collect from Rivera the $200 he was owed for delivering the ecstasy pills. Giovanni and the third man followed Perez in their respective vehicles to meet with Rivera.

Upon Perez's arrival in Manhattan, Rivera retrieved the bag of pills and gave them to the CS. Rivera told the CS that the cocaine had not been delivered. The CS examined the contents of the bag and called the DEA task force officer. Shortly thereafter, the DEA task force officer arrested Perez and Rivera.

B. Indictment and Guilty Plea

On April 22, 2005, a grand jury returned a one-count indictment charging Perez with conspiracy to distribute and possess with intent to distribute, in violation of 21 U.S.C. § 846: (1) 500 grams or more of mixtures and substances containing a detectable amount of cocaine; and (2) mixtures and substances containing a detectable amount of ecstasy.

On November 2, 2005, Perez entered into a written plea agreement in which Perez agreed to plead guilty with regard to the 2,000 pills that were in fact ecstasy. In the plea agreement, the parties calculated Perez's base offense level to be 26, but agreed that Perez would be entitled to a three-level downward adjustment pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 3E1.1 "assuming the defendant clearly demonstrates acceptance of responsibility to the satisfaction of the Government." (Gov't Ex. C, at 2.) This would produce an adjusted offense level of 23, which, combined with his Criminal History Category of I, yields a recommended term of imprisonment of 46 to 57 months under the sentencing guidelines. The agreement further provides that the Government could "seek denial of the adjustment for acceptance of responsibility . . . and/or imposition of an adjustment for obstruction of justice . . . should it be determined that the defendant has . . . committed another crime after signing this agreement." (Id. at 3.)

On December 1, 2005, Perez appeared before the Court and, through the assistance of an interpretor, pleaded guilty to conspiring to distribute and possess with intent to distribute ecstasy. At the outset of the Rule 11 hearing, counsel affirmed that he had explained the plea agreement to Perez and that it had been translated for him. The Court placed Perez under oath and admonished him, among other things, that: (1) it was important to tell the truth because any false statements could lead to future prosecution or otherwise "get [him] in more trouble" (Plea Tr., Gov't Ex. B, at 4.); (2) he had a right to a trial in which he would be presumed innocent until proven guilty; (3) the charge to which he was pleading guilty carried a statutory maximum sentence of twenty years; and (4) the Government calculated his applicable guideline sentencing range to be 46 to 57 months, but that the sentencing guidelines are not binding on the Court. Perez told the Court that he understood his rights and was willing to waive them by pleading guilty. Perez further stated that he was satisfied with the representation he received by counsel and that he was pleading guilty on his own free will, without any threat of force or promise of leniency, because, in fact, he was guilty.

Perez then explained the circumstances of his crime, and the Court accepted the guilty plea.

C. The Fatico Hearing

On February 10, 2006, the Probation Office prepared a presentence report, in which it recommended a sentence that comported ...


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