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Pena v. United States

August 17, 2010

JUAN PENA, PETITIONER,
v.
UNITED STATES, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Juan Peña moves under 28 U.S.C. § 2255 to vacate the sentence of imprisonment I imposed after he pled guilty to heroin trafficking charges. For the reasons described below, the motion is denied.

BACKGROUND

All the arguments Peña makes in support of his motion concern the sentencing proceedings that ensued after Peña pled guilty to conspiracy to import heroin into the United States. The guilty plea took place on November 30, 2006, and sentencing was originally scheduled for March 2, 2007. It was adjourned in February to April 27, 2007, and subsequently adjourned again at Peña's request to June 29, 2007.

On June 19, 2007, Salvador Delgado, Esq., filed a notice of appearance for Peña. He sought an adjournment of the sentencing in order to address some unspecified "issues which I believe may not have been fully addressed." Letter from Salvador Delgado, June 19, 2007, at 1. I denied the request. In an order entered on the docket on June 25, I noted that Peña's attorney at the time, Justin Levine, had not been relieved, and that I expected Levine to appear for the June 29 sentencing. On June 27, 2007, Delgado wrote another letter setting forth the issues he wished to address before Peña was sentenced, including Peña's cooperation with the government.

Peña did not want to be sentenced, and a government letter dated June 23, 2007 made clear why that was so. The prosecutor reported that after Peña's arrest, and before a cooperation agreement could be executed, Peña offered to help the Drug Enforcement Administration ("DEA") intercept an impending shipment of narcotics. He made proffer statements and agreed to assist the DEA to make significant seizures of drugs and new arrests. Unfortunately, Peña did the worst possible things a defendant can do in those circumstances. First, he lied in his proffers; according to the government, he "not only lied about his own criminal activity, but also about that of various co-conspirators." Letter from Roger A. Burlingame, June 23, 2007, at 2. Worse still, Colombian wiretap intercepts showed that Peña instructed a U.S.-based associate to contact one of his suppliers in Colombia and inform the supplier that Peña wanted to continue his drug dealing through the associate because Peña's phones were being tapped by law enforcement. Thus, the Colombian wiretaps revealed that Peña wanted to import drugs behind the backs of the agents he was purportedly cooperating with. So Peña, who had been released on conditions in order to cooperate, was arrested again. At his request, he was allowed to proffer again, but when he did so "he continued to lie concerning his criminal history." Id. at 2 n.2.

OnJune 29 both Levine and Delgado appeared with Peña, but neither was prepared for sentencing. Levine reported that Peña blamed him for failing to procure a substantial-assistance motion pursuant to U.S.S.G. § 5K1.1 and would no longer talk to him. For his part, Delgado said he wanted "only a short time" -- two to three weeks -- to prepare for sentencing. Not wishing to visit upon Peña the consequences of having lawyers who were unprepared for sentencing, I agreed to adjourn the sentencing.

At that time, I also addressed preliminarily the "issues" set forth in Delgado's June 27 letter as requiring his attention (and thus warranting an adjournment). One was the need to "explore with the government the possibility of obtaining a 5K1.1 letter." Letter from Salvador Delgado, June 19, 2007, at 2. I informed Delgado that in light of the government's letter regarding Peña's purported cooperation, such a motion was not a even a remote possibility, and the government confirmed my impression. I further told Delgado that I would listen to his arguments regarding Peña's claims of cooperation, and that I could consider any such cooperation even without a government motion under the Fernandez case,*fn1 but that a futile effort to seek a government motion did not justify a sentencing adjournment.

Delgado also sought an adjournment on the ground that his client "was desirous of obtaining what is known as the safety valve reduction in his sentencing package." Id. at 1.

This was a reference to the two-level downward adjustment currently set forth in § 2D1.1(b)(11) of the Guidelines, which incorporates by reference the statutory grounds for safety valve relief from the mandatory minimum sentences.*fn2 I informed Delgado that the undisputed facts made Peña ineligible for the safety valve adjustment. Tr. June 29, 2007, at 2. Two features of Peña's case made safety valve relief hopeless. First, he had more than one criminal history point. Second, though there was a dispute about the degree of the proper aggravated role adjustment Peña deserved, there was no dispute that he deserved at least a two-level upward adjustment based on his role in the offense. Each of these facts disqualified him from safety valve relief from the mandatory minimum sentence and from the safety valve adjustment.*fn3

Though those issues did not warrant an adjournment, Delgado was new to the case, and as mentioned above, it did not seem fair to Peña to require him to proceed to sentence without a prepared attorney. In addition, Delgado expressed a desire to bring to my attention a medical condition of Peña's wife, which in counsel's judgment would warrant leniency at sentencing. Thus, I adjourned the sentencing to July 20, 2007.

On that date, Delgado appeared for sentencing with his client, but he reported they were still not ready to proceed. They still "had not formulated objections" to the presentence report. Delgado claimed that he had not even received a copy of the presentence report until July 13, blaming an "encryption problem" in the computer of his predecessor counsel, Levine. Tr. July 20, 2007, at 3. When pressed about the forthcoming objections, Delgado mentioned only one: an objection to the four-level adjustment for role in the offense. This objection was actually a joint objection, as the government itself took the position (in the plea agreement and subsequently in court) that only a two-level adjustment was appropriate. Nevertheless, I granted another adjournment, to August 3, 2007.

Delgado filed a lengthy sentencing submission on July 31, 2007. It mentioned the parties' agreement to a two-level upward role adjustment and sought a criminal history departure, but otherwise did not address the Guidelines computation. It then set forth various reasons for a non-Guidelines sentence.

On August 3, 2007, the case was again called for sentencing. Delgado stated that he had reviewed the Presentence Report ("PSR") with the defendant orally and went over it "on a page by page, line by line basis." Tr. Aug. 3, 2007, at 2. Peña confirmed that this was the case. Id. Counsel then reported that Peña was sick because of a nauseating smell in the Metropolitan Detention Center ("MDC"). Peña was not "in a ...


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