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Mendez v. United States

March 10, 2010

LUIS HUMBERTO MENDEZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Gabriel W. Gorenstein United States Magistrate Judge

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

On November 20, 2008, Luis Humberto Mendez pled guilty to one count of conspiracy to distribute and possession with intent to distribute narcotics in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. He was sentenced to a prison term of 120 months. Mendez, who is currently in prison serving his sentence, has petitioned this Court, pro se, under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons below, the petition should be denied.

I. BACKGROUND

A. Arrest, Plea, and Sentencing

Mendez was indicted for conspiracy to distribute more than five kilograms of cocaine. See Letter from Christian R. Everdell to Michael Hurwitz, dated Nov. 18, 2008 (annexed as Ex. A to Government's Memorandum in Opposition to Petitioner's Motion to Vacate his Conviction Pursuant to 28 U.S.C. § 2255, filed Nov. 3, 2009 (Docket # 16) ("Resp. Opp.")) ("Plea Agreement"), at 1.*fn1 Mendez entered into a plea agreement under which he and the Government stipulated that the appropriate sentencing range under the Federal Sentencing Guidelines was 87 to 108 months. Id. at 3. However, the parties also agreed that the charge carried a mandatory minimum of 120 months' imprisonment, and that neither an upward nor a downward departure from the guidelines was warranted. Id. Accordingly, the parties agreed that the "Stipulated Guideline Range" was 120 months. Id. at 3. The plea agreement is silent on whether Mendez could move at sentencing for a decrease in his offense level pursuant to the "safety valve" provisions of the Guidelines, U.S.S.G. §§ 2D1.1(b)(11), 5C1.2, and under 18 U.S.C. § 3553(f).*fn2

The agreement provided "that the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Guidelines Range Set forth above [120 months]." Plea Agreement at 4. The plea agreement stated that "[t]his provision is binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein." Id.

On November 20, 2008, Mendez appeared before Judge Richard J. Holwell to enter a guilty plea. See Transcript of Plea Hearing Conducted November 20, 2008, filed Jan. 9, 2009 (Docket # 9) ("P."), at 2. Michael Hurwitz represented Mendez at this appearance. (P. 1). During the allocution, Mendez stated under oath that he understood the charges against him, that he was satisfied with Hurwitz's representation, and that he wished to enter a plea of guilty.

(P. 2-4, 8, 16-17). He also stated that he understood the potential maximum sentence, the mandatory minimum penalty of 10 years' imprisonment, and his right to plead not guilty and go to trial. (P. 6, 8-9). The court then explained that a sentence would be imposed based on the sentencing judge's discretion, taking into account the Sentencing Guidelines. (P. 15). The court asked Mendez if he understood that if his sentence was no longer than 120 months, he was "giving up [his] right to appeal or otherwise challenge [his] sentence." Id. Mendez responded that he did so understand. Id. He also stated that he was willingly giving up his rights, and that he had not been pressured by anyone to do so. (P. 13-14).

Following his plea, Mendez met with the Government for a "safety valve proffer."

See Affirmation in Support of Government's Memorandum in Opposition to Petitioner's Motion to Vacate his Conviction Pursuant to 28 U.S.C. § 2255, dated Nov. 3, 2009 (annexed as Ex. C to Resp. Opp.) ("Resp. Aff.") ¶ 2. Mendez was represented by Hurwitz at the proffer and had the assistance of a Spanish interpreter. Id. ¶ 2(b).

Prior to the start of the proffer session, id. ¶ 2(c), the Government gave Mendez a safety valve proffer agreement which stated that "the Government may offer at any stage of the criminal proceeding for any purpose any statement made by [Mendez] during the [safety valve proffer]," and that Mendez's signature was an acknowledgment of the waiver of his rights to suppress such statements. Letter from Christian R. Everdell to Michael Hurwitz, dated Feb. 24, 2009 (annexed as Ex. D to Resp. Opp.), at 1-2. The safety valve agreement concluded by stating that Hurwitz's signature constituted "an acknowledgment of having explained" the terms of the agreement to his client, and Mendez's signature constituted his "acknowledgment and understanding" of the agreement. Id. at 2. Mendez, Hurwitz, and the Spanish interpreter signed the agreement. Id.

During the course of the proffer session, Mendez provided evidence that the Government found not credible in light of its investigation and statements obtained from a cooperating witness. Resp. Aff. ¶ 2(f). The Government told Mendez that it would terminate the proffer session unless Mendez was "prepared to be truthful." Id. Mendez spoke privately with his attorney, who then informed the Government that Mendez did not wish to proceed with the proffer. Id. ¶ 2(g). However, during the session, Mendez did admit that he had received more kilograms of cocaine than the Government had previously believed were involved in the conspiracy. Id. ¶ 2(h). The Government informed Hurwitz that it would "ultimately hold [Mendez] responsible for between 15 and 50 kilograms of cocaine, which would increase his base offense level" under the Sentencing Guidelines, id., to a range of 120 to 135 months' imprisonment, see Presentence Investigation Report, dated Apr. 24, 2009 (annexed as Ex. F. to Resp. Opp.) ¶ 58. The Government sought such a sentence from the Court. See Letter from Christian R. Everdell to the Hon. Richard J. Holwell, dated Apr. 28, 2009 (annexed as Ex. H to Resp. Opp.), at 2.

On May 1, 2009, Judge Holwell sentenced Mendez to a prison term of 120 months. See Transcript of Sentencing Proceedings, filed June 16, 2009 (Docket # 13), at 8. No ...


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