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Ferney Dario Ramirez v. United States of America

May 6, 2011


The opinion of the court was delivered by: John G. Koeltl, District Judge


The petitioner, Ferney Dario Ramirez (the "petitioner"), appearing pro se, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He also moves pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927 for an Order to Show Cause for sanctions and contempt against the Assistant United States Attorney in this case and the petitioner's trial counsel, B. Alan Seidler, Esq.



On May 6, 2004, the petitioner pleaded guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846 pursuant to a written plea agreement, dated May 3, 2004. In the plea agreement, the parties stipulated that the petitioner had a base offense level of 36 pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(a)(3), because the offense involved approximately 118 kilograms of cocaine, and that the petitioner was entitled to a three-level reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility. (Joint Appendix on Appeal ("J.A.") at A12.) As a result, the parties stipulated to a criminal offense level of 33. (Id.) In addition, the parties agreed that the petitioner was in Criminal History Category II because of a prior felony conviction in Maryland that resulted in a three-year prison sentence. (Id.) Based on the petitioner's offense level and criminal history, the plea agreement provided for a stipulated sentencing guidelines range of 151 to 188 months imprisonment. (J.A. at A12-A13.) The plea agreement also acknowledged that 21 U.S.C. § 841 required a statutory mandatory minimum term of 120 months. (J.A. at A13.) There were no provisions in the plea agreement relating to a possible reduction of the petitioner's sentence based on cooperation.

As part of the plea agreement, the petitioner agreed not to seek or suggest a departure or any adjustment to the stipulated sentencing guidelines range. (J.A. at A13.) The Government retained the right to oppose any reduction of the petitioner's offense level for acceptance of responsibility under certain circumstances. (J.A. at A12-A13.) The Government also retained the right to seek an upward adjustment if the petitioner moved to withdraw his guilty plea once entered, engaged in conduct, unknown to the Government at the time it entered into the plea agreement, that constituted obstruction of justice, or committed another crime after signing the plea agreement. (J.A. at A12-A13.) In the plea agreement, and at the plea allocution before this Court, the petitioner acknowledged that neither the Probation Department nor the Court was bound by the stipulated sentencing guidelines range, and that he understood he would not be able to withdraw his guilty plea if the Court imposed a sentence outside the stipulated guidelines range. (J.A. at A13-A14, A31:2-8, A33:6-16.)

The petitioner entered his guilty plea on May 6, 2004, with the assistance of a Spanish interpreter. (J.A. at A17-A18:5-16.) Before accepting the plea, this Court advised the petitioner of each of the constitutional rights he would be waiving by pleading guilty. (J.A. at A22:9-A24:25.) The petitioner indicated his understanding and his desire to plead guilty. (J.A. at A22:9-A24:25.) The petitioner indicated that he had discussed the waiver of indictment and his guilty plea with his attorney. (J.A. at A21:11-18, A25:1-10.) The Court asked, "Are you satisfied with Mr. Amsel and his representation of you?" (J.A. at A21:19-20.) The petitioner responded, "Yes." (J.A. at A21:21.) The Court summarized the charges for him. (A25:11-A27:12.) The Court explained the maximum penalties for the crimes as well as the mandatory minimum penalties and the petitioner said that he understood. (J.A. at A27:13-A28:18.) This Court then explained that, under the law at the time, there were sentencing guidelines that judges were required to follow in determining the petitioner's sentence, and the petitioner indicated that he had discussed the sentencing guidelines with his attorney. (J.A. at A29:12-16.)

The petitioner acknowledged that the plea agreement had been translated for him before he signed it and that he fully understood it. (J.A. at A31:15-25.) He confirmed that the plea agreement contained "everything that [he] underst[oo]d about [his] plea and [his] sentence." (J.A. at A32:5-7.) The petitioner stated that no promises or threats had been made to him to induce him to plead guilty, or to enter into the plea agreement. (J.A. at A32:10-13.)


On February 3, 2005, the petitioner's new counsel, B. Alan Seidler, Esq., submitted a letter on the petitioner's behalf seeking permission to withdraw from the plea agreement. (J.A. at A43.) The letter stated that in light of United States v. Booker, 543 U.S. 220 (2005), the petitioner believed he could achieve a sentence below the guideline range of 151 to 188 months. (J.A. at A43.) The petitioner subsequently filed a letter motion dated April 25, 2005, supporting his application to withdraw from the plea agreement. In the letter, the petitioner stated that he never would have entered into the Plea Agreement if Amsel had advised him of the holding and sentencing implications of Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, and that "he believed he had no choice but to enter into a plea agreement . . . that provided for the mandatory application of the sentence[ing] guidelines." (Addendum to Government's 2d Cir. Br. ("Add.") at 3.) The Government responded, arguing that under Brady v. United States, 397 U.S. 742 (1970), the petitioner was not permitted to withdraw from the plea agreement simply because his calculus may have been altered by unforeseen changes in the law, and emphasizing the fact that "the possibility that the law would change favorably for [the petitioner] after his plea agreement is simply one of the risks that accompanies pleas and plea agreements." (J.A. at A48, A51 (internal quotation marks omitted) (quoting United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005)).) In addition, the Government clearly stated that if the petitioner withdrew from the plea agreement, it would seek additional enhancements and ask the Court to deny any reductions based on acceptance of responsibility. (J.A. at A51.) The Government further explained that if the petitioner was permitted to withdraw from the plea agreement, the Government would be entitled to prove additional relevant conduct and seek enhancements based on additional evidence. (J.A. at A51.) As a result, the Government suggested that it would argue for enhancements resulting in a combined offense level of 40, and a Guidelines sentencing range of 324 to 405 months. (J.A. at A52.)

On June 9, 2009, the parties appeared before this Court for a hearing on the petitioner's motion to withdraw from the plea agreement. This Court reviewed the parties' arguments, and explained that if the petitioner were permitted to withdraw from the plea agreement, "the plea agreement would no longer be binding on either side." (J.A. at A56:12-15.) This Court then described the applicable standard for withdrawal from a plea agreement. (J.A. at A57:1-13.) Seidler stated that the petitioner was still interested in proceeding with the motion, and that the petitioner understood that the Government would no longer be bound by the plea agreement. (J.A. at A57:24-A58:6.) Seidler also confirmed that the petitioner was aware of the Government's higher sentencing estimate, and that the Government was free to argue for a higher sentence which the Court could consider. (J.A. at A58:11-17.) Seidler argued that there had been "significant change in the sentencing procedures," and that the petitioner should not be bound by the former procedures embodied in the plea agreement. (J.A. at A59:25-A60:7.)

The Government acknowledged the statements by Seidler, and requested that the Court directly inquire of the petitioner "as to whether he believes he has had an adequate opportunity to discuss this with counsel and whether this is truly what he wants to do." (J.A. at A62:9-12.) This Court responded by stating that everything it had said had been translated for the petitioner, and that Seidler had reviewed the issue on several occasions with the petitioner, but that the parties could confirm the petitioner's voluntary and knowing decision at a subsequent hearing. (J.A. A62:24-A63:25.)

Following further colloquy with the parties, this Court stated that it was inclined to grant the petitioner's application to withdraw from the plea agreement. (J.A. at A78:10-14.) The petitioner was placed under oath, and confirmed that he understood the Court and could communicate with the Spanish interpreter. (J.A. at A79:8-16, A79:25-A80:4.) The petitioner confirmed that he understood that the "purpose of the proceeding was to ensure that he was making the application to withdraw from the plea agreement knowingly, voluntarily, and with a full understanding of its consequences." (J.A. at A80:19-24.) This Court confirmed that the petitioner understood that there was a provision in the plea agreement that the sentencing guidelines range was 151 to 188 months imprisonment, but that the plea agreement was not binding on the Court, which would "in any event have to make an independent determination of the appropriate sentence in [the petitioner's] case." (J.A. at A81:4-12.) The petitioner acknowledged that without the plea agreement, the Government would be "free to argue for a sentence in excess of 188 months imprisonment." (J.A. at A82:1-4.) The petitioner further indicated that he understood the that the Government had stated that it would argue for a guideline sentencing range of 324 to 205 months. (J.A. at A82:10-16.) The petitioner acknowledged that by withdrawing from the plea agreement, he was freeing the Government to argue for, and present any appropriate evidence in support of, a much higher sentence than that provided in the agreement, and confirmed that he still wanted to withdraw from the plea agreement. (J.A. at A82:17-25.) The petitioner confirmed that he discussed the matter thoroughly with his lawyer, and that he had made the application to withdraw from the plea agreement knowingly and voluntarily, free from any threats or inducements. (J.A. at A83:1-10.) Finally, the petitioner acknowledged that he was facing a 10-year mandatory minimum, meaning that the lowest sentence he could receive if he withdrew from the plea agreement was 120 months imprisonment. (J.A. at A83:22-A84:1.)

This Court found that the petitioner's application to withdraw from the plea agreement was knowing and voluntary, and granted the application so that the plea agreement was not binding on the petitioner or the government. (J.A. at A84:7-20.)


The parties appeared for a Fatico hearing before this Court on March 30, 2006, in order to resolve factual disputes between them, in particular the amount of drugs involved and the petitioner's conduct and role in the offense. The Government called three witnesses and introduced various telephone recordings and records establishing that the petitioner had been involved in buying, selling, and transporting more than 118 kilograms of cocaine, and that he attempted to get one of his cohorts to lie to federal investigators about his relationship with the petitioner and offered money to the wife of another cohort. (See J.A. at A87-A259.)

On May 25, 2006, the petitioner appeared before this Court for sentencing. Seidler made applications for downward departures from the sentencing guidelines based on prison conditions and the petitioner's family circumstances. (See J.A. at A264:4-19.) He also made an application for the Court to recommend that the petitioner be sent to Miami, Florida to serve his sentence because the petitioner had family in Florida. (J.A. at A298:13-A299:1.) In addition, Seidler urged the Court to disregard the evidence presented at the Fatico hearing of obstruction of justice, alleging that the Government's witnesses were unreliable, and that the credible evidence did not necessarily demonstrate an obstruction of justice. (J.A. 278:15-A279:5.)

Throughout the sentencing proceeding, Seidler argued that under Apprendi and its progeny, "the statutory maximum is dependent upon the maximum penalty that the Court could impose based on statements by the defendant or a finding by a jury." (J.A. at A267:1-4.) Seidler asserted that the statutory maximum for the petitioner's sentence should be based on 118 kilograms of cocaine because the petitioner had not admitted to, nor had a jury found, that the petitioner was involved with more than 118 kilograms. (J.A. at A268:11-19.) This Court explained that under Apprendi and its progeny, the petitioner could only "be sentenced to the offense for which he pleaded guilty or the jury found the elements beyond a reasonable doubt. The offense to which [the petitioner] pleaded guilty was a violation of 846, conspiracy to violate 812, 841(b)(1)(A) . . . . Having admitted that, the potential maximum penalty is . . . life and [the] mandatory minimum penalty [is] ten years." (J.A. at A272:25-A273:10.) That crime required only five kilograms of cocaine. Once that threshold was passed, the maximum sentence was life imprisonment and the mandatory minimum term of imprisonment was ten years. Seidler argued against the Court's interpretation of the cases, and the Court further explained that while evidence of the amount of drugs is necessary for "a determination of whether the [petitioner] can be held to have violated (b)(1)(A) or (b)(1)(B)," in this case, the petitioner admitted at the plea allocution to an amount of drugs that established a violation of (b)(1)(A). (J.A. at A273:25-A274:3.) Thus, while the Court could not sentence the petitioner for a violation of (b)(1)(A) if he had not admitted to the requisite amount of drugs, once the petitioner admitted to a violation of (b)(1)(A), the mandatory statutory minimum was ten years and ...

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