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Dones v. United States

January 21, 2010

JOSE DONES, PETITIONER,
v.
UNITED STATES, RESPONDENT.



MEMORANDUM OPINION AND ORDER

Jose Dones has petitioned pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the judgment against him and the sentence imposed upon him after he pled guilty to one count of conspiring to distribute five grams or more of cocaine in violation of 21 U.S.C. § 846. He alleges that the government engaged in sentence manipulation and entrapment, and that his trial and appellate attorneys were ineffective. For the reasons that follow the petition will be denied.

BACKGROUND

The relevant facts as they appear from the record of prior proceedings in this case are as follows. In early December 2003, an FBI confidential informant (CI) engaged petitioner at the Bronx barbershop where petitioner worked, purporting to be a bona fide customer. (Sent. Tr. 18.) According to petitioner, the CI originally tried to purchase drugs and guns from or through him, but was repeatedly rebuffed. (Id.) Petitioner says that, as the haircuts continued, he eventually told the CI that he would be willing to engage in theft if the opportunity presented itself. (Id. at 19 ("I told him that I was a thief.").) The CI shortly thereafter told petitioner an invented story of a warehouse in Brooklyn where large quantities of unsecured narcotics and cash were kept, and suggested that petitioner could recruit a crew to go steal them. (Pet.'s Mot. 3; Gov.'s Mot. 2.) The FBI brought in an undercover agent (UC), supposedly the CI's cousin, who posed as the mistress of a drug trafficker who was willing to betray the drug trafficker's trust and reveal the stash. (Pet.'s Mot. 3; Gov.'s Mot. 2.) Petitioner contends that she plied him with alcohol, flirtation, and her story of needing to use proceeds from the theft in order to escape a life of crime. (Pet.'s Mot. 2-3.) Confronted with this opportunity, he agreed to steal the stash. (Pet.'s Mot. 3.)

Petitioner was given conflicting information about the quantity of narcotics that would be in the stash. Over the course of the set-up for the reverse sting, the CI and UC referenced quantities of cocaine varying from 30kg to 100kg in their conversations with Dones. (See Gov.'s Mot. Ex. H.) Just before the sting was finally carried out, the CI told petitioner that there were 80 kg of narcotics in the stash, and he agreed to go check it out in the hopes of stealing the drugs. (Comp. ¶ 7.) Petitioner never indicated any hesitancy based on the amount of drugs, and the FBI has not indicated how it decided on the quantity to be used in the sting.

On January 21, 2004, the UC gave petitioner the address of a warehouse in Brooklyn where the cocaine was supposedly stored. (Id.) Petitioner recruited Elvis Pena and Angel Cabrera-Abreu to assist him, and early the next morning the men drove to the warehouse where petitioner and Cabrera-Abreu removed sham cocaine that the FBI had placed there as part of the sting (Pena was driving the car). (Gov.'s Mot. 2.) Their actions were recorded on videotape, and they were arrested near the warehouse. (Id.)

Petitioner was indicted on October 5, 2004 for conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846.*fn1 (Id.) The indictment alleged that they planned to steal more than 50kg of cocaine, and that petitioner was an organizer, leader, manager or supervisor of the conspiracy. (Id.)

Petitioner was initially represented by Richard Boulware, Esq. (Id.) On January 25, 2005, while represented by Mr. Boulware, petitioner filed a pro se motion moving to dismiss the indictment on the grounds that he was entrapped and that he could not have legally conspired with an informant who did not intend to carry out the crime.*fn2 (Id. at 2-3.)

On February 25, 2005 the Government provided petitioner with a letter pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), setting forth a non-binding estimate of his anticipated sentence. (Id. at 3.) The government projected that:

(1) pursuant to U.S.S.G. § 2D1.1(c)(2) petitioner's base offense level was 36 because the quantity of narcotics the group conspired to acquire was 80kg; (2) pursuant to U.S.S.G. § 3B.1.1(c) a two level increase in petitioner's offense level was warranted in light of his role as a leader of a scheme of less than five people; (3) the offense level would be reduced by two levels in light of petitioner's acceptance of responsibility of his actions; (4) a further one level reduction would be available if petitioner pled guilty in a timely fashion; and (5) the adjusted offense level was 35. (See Gov.'s Mot. Ex. C.) The Government also determined that petitioner's criminal history level was VI because of prior state convictions for criminal possession of narcotics in the fourth degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the second degree, and criminal possession of a weapon in the third degree. (Gov.'s Mot. at 3-4.) As petitioner had at least two prior felony convictions of a controlled substance and the most recent charge was a controlled substance offense, petitioner was considered a "career offender." (Id.) The Government therefore concluded that petitioner's likely Guidelines range was 292 to 365 months' incaraceration. (Id.)

On March 8, 2005, petitioner requested new counsel, and Daniel Nobel, Esq. was appointed to represent him. (Gov.'s Mot. 2.) On May 8, 2005, petitioner sent a pro se letter to the Court stating that while he did not wish to go to trial, he was worried that the indictment did not reflect the actual events that transpired. (Pet.'s Aff. ¶ 3.) In his letter, petitioner claimed that he was guilty only of attempted robbery, not the drug related charges, because the drugs actually used were fake. Petitioner further asserted an entrapment defense based on the role of the CI and UC in setting up the sting and in encouraging petitioner to recruit Pena and Cabrera-Abreu for the conspiracy. (Gov.'s Mot. Ex. D.)

Petitioner appeared before this Court on May 17, 2005, and pled guilty to one count of narcotics conspiracy in violation of 21 U.S.C. § 846. (See Plea Tr., Gov.'s Mot. Ex. E.) Petitioner's counsel, Mr. Nobel, advised the Court that he had discussed with petitioner the issues in the January 25 pro se motion and May 8 letter and that petitioner understood the issues and wished to plead guilty. (Id. at 2.) Mr. Nobel declined to reassert petitioner's January 25 pro se motion on petitioner's behalf, as he felt that he could not adopt petitioner's legal arguments because they were without merit. (Plea Tr. 7, 20.) The Court established the factual basis of the plea, that petitioner acknowledged he conspired to steal cocaine, (Id. at 19-20), and advised petitioner that if he pled guilty he would waive any possible defenses he might present at trial, including entrapment. (Id. at 20.) The Court further inquired of Mr. Nobel whether he had considered the entrapment defense in advising his client to plead guilty:

THE COURT: Mr. Dones, in your letter to the Court dated May 8 you raise a number of issues, including a defense that you were entrapped?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that by pleading guilty you're giving up or waiving this defense?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Nobel, have you discussed this defense ...


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