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Emilio Espinal v. United States

October 28, 2011

EMILIO ESPINAL,
PETITIONER
v.
UNITED STATES, RESPONDENT.



OPINION

In this action, Emilio Espinal moves, pro se, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 and to reduce his sentence pursuant to 18 U.S.C. § 3582. Espinal claims that he is entitled to relief under § 2255, because he received ineffective assistance of counsel at the time of his plea agreement, at his sentencing, and after his sentencing. He also contends that his sentence should be reduced under § 3582 based on recent amendments to the crack cocaine sentencing guidelines.

The court denies these motions.

BACKGROUND

This account of the facts is taken from Espinal's motions and the Government's response.

A) Facts

On April 9, 1992, New York City Police Department officers conducted a search of a residence in Manhattan. During this search, the NYPD officers recovered various quantities of heroin, powder cocaine, and crack cocaine. In addition, they recovered scales, drug paraphernalia, about $4500 in cash, and three firearms. After conducting this search, Espinal and his co-conspirator were arrested.

On April 23, 1992, the Federal Government charged Espinal with

(1) one count each of possessing with intent to distribute cocaine and heroin within 1,000 feet of a school zone, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860; and (2) three counts of using and carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). In May 1992, Espinal was released on bail. Thereafter, the Government issued a superseding indictment which added charges of (1) possessing with intent to distribute five grams or more of crack cocaine within 1,000 feet of a school zone, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 860; and (2) being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g).

On September 30, 1992, Espinal failed to appear for a scheduled court conference, and the court issued a warrant for his arrest. On November 30, 1994, the Government indicted Espinal for failure to appear, in violation of 18 U.S.C. § 3146.

On July 12, 2006, Espinal was arrested on the above charges while attempting to illegally enter the United States in Arizona. Subsequently, the Government issued a superseding information (the "narcotics information") in connection with the drug charges stemming from his 1992 arrest. The narcotics information charged Espinal with (1) one count of distributing and possessing with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and (2) one count each of distributing and possessing with intent to distribute cocaine and heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

B) Procedural History

On December 28, 2006, Espinal entered a guilty plea pursuant to the narcotics information and the 1994 indictment for failure to appear. The plea agreement contained a series of stipulations that resulted in an offense level of 28 and a stipulated sentencing guidelines range of 78 to 97 months. The plea agreement also provided that Count 1 of the narcotics information required a mandatory minimum term of 60 months' imprisonment. In addition, the plea agreement contained the following appeal waiver provision:

It is agreed (i) 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 (78 to 97 months) and (ii) that the Government will not appeal any sentence within or above the Stipulated Guidelines Range (78 to 97 months).

At Espinal's plea hearing, the court asked him whether he was satisfied with his attorney, David E. Patton, and whether he understood his plea agreement, to which he responded affirmatively. In addition, the court stated that Count 1 of the narcotics information carried "at least a mandatory minimum of five years' prison." Further, the Government pointed out that the appeal waiver provision in Espinal's plea agreement required him to waive his right to appeal or collaterally attack a sentence within or below the ...


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