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Zarate v. United States

United States District Court, Second Circuit

June 10, 2013

EDGAR PINEDA ZARATE, Movant,
v.
UNITED STATES OF AMERICA Respondent.

TO THE HONORABLE JED S. RAKOFF, U.S.D.J.

REPORT & RECOMMENDATION

MICHAE H. DOLINGER, Magistrate Judge.

Pro se prisoner Edgar Pineda Zarate has filed a motion under 28 U.S.C. § 2255 challenging the 108-month period of incarceration to which the District Court sentenced him after he pleaded guilty to two separate counts for his involvement in a conspiracy to import heroin into the United States. He premises his motion on a claim of ineffective assistance of counsel, arguing, in essence, that his trial counsel's purported failure to sufficiently emphasize certain mitigating factors led to the imposition of an unfair prison sentence and deprived him of his right to constitutionally adequate representation. For the reasons that follow, we recommend that the motion be denied.

FACTUAL AND PROCEDURAL BACKGROUND

We base our factual summary on the parties' motion papers. Zarate is a Colombian national who, in about 2004, began acting as a broker in heroin sales, coordinating drug transfers between sellers, couriers, and buyers. (Gov't Mem. of Law in Opp'n to Pet. 1-2). While Zarate more frequently transacted in cocaine deals local to Colombia, he was intermittently involved between 2004 and 2007 in several deals to import heroin from Colombia or Ecuador into the United States. (Id. at p. 1; see id. at Ex. G p. 12).

On February 7, 2007, a grand jury returned an indictment charging Zarate with one count of participating in a conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b) (1) (A), and 846, and with one count of participating in a conspiracy to import into the United States one kilogram and more of heroin, in violation of 21 U.S.C. §§ 812, 952, 960(a) (1), 960(b) (1) (A), and 963. (Gov't Mem. of Law in Opp'n to Pet. 2). In January 2007, Zarate was arrested in Colombia, where he was held for one year in Combita prison, before being extradited to the United States in January 2008. (Id. at p. 2; Pl.'s Mem. in Supp. of Mot. 26-27).

On August 14, 2008, four days before the scheduled start of his trial, Zarate, acting without the benefit of a plea agreement, pleaded guilty to both counts of the indictment. (Gov't Mem. of Law in Opp'n to Pet 1). The Probation Office subsequently prepared a presentence report estimating that, pursuant to the federal Sentencing Guidelines, Zarate should receive a sentence in the range of 151 to 188 months imprisonment. (Id. at p. 7). Zarate objected to this calculation, arguing that (1) his base offense level should be calculated based on his responsibility for importation into the United States of an amount of heroin between one to three kilograms, rather than three to ten kilograms, and (2) the Probation Office had improperly failed to credit him with two points for acceptance of responsibility, an argument that also implicitly suggested Zarate's eligibility for safety-valve treatment. (See id. at Ex. D). As a result of these objections, the court held a Fatico hearing[1] on January 14 and January 21, 2009.[2] (Id. at pp. 6-9).

During the Fatico hearing, the court heard testimony from two Government witnesses - a cooperating witness who had done business with Zarate as a drug courier, and an agent from the Drug Enforcement Agency who had been present at the proffer session when Zarate admitted his involvement in the conspiracy. (Id. at p. 9). The court also reviewed the transcripts of several taped phone conversations involving Zarate, as well as an unsolicited letter that Zarate had submitted directly to the court. (Id. at Ex. F pp. 74-75, 86). Lastly, the court conducted its own direct questioning of Zarate concerning the scope of his involvement in the conspiracy and, more generally, in the drug trade. (Id. at Ex. F pp. 89-95, Ex. G pp. 3-12). Based on this evidence, the court concluded that, over the course of the conspiracy, Zarate had been responsible for the importation of between three and ten kilograms of heroin. (Id. at Ex. F pp. 81-82). Thus, taking into account the fact that Zarate had no prior criminal record, his base offense level under the Sentencing Guidelines was set as 34. (Id. at Ex. G p. 13). Based on its direct questioning of Zarate, the court concluded, "I do not detect any effort to intentionally mislead the Court or to intentionally make material misstatements. And, therefore, I will give him eligibility for safety valve and two points for acceptance of responsibility."[3] (Id. at Ex. G p. 13). Accordingly, Zarate's total offense level was calculated to be 30, with a guideline range of 97 to 121 months imprisonment. (Id. at Ex. G p. 14).

The court next heard from the parties concerning factors relevant to sentencing under 18 U.S.C. 3553(a).[4] Defense counsel noted that Zarate had lost his father at an early age and that he had been forced to flee his family farm following a rebel occupation of his home region in Colombia. (Id. at Ex. G pp. 14-15). Defense counsel characterized Zarate as a "country kid" who, in the midst of a culture where drug trafficking was common, had apparently failed to appreciate the wider implications of his illegal conduct (id. at Ex. G. p. 15), but had acted primarily out of a desire simply to provide for his family. (Id. at Ex. G. pp. 15-16, 18). Defense counsel also noted the "devastating" impact of Zarate's incarceration on his family, which, following his arrest, had been left in Colombia without support. (Id. at Ex. G. p. 16). Defense counsel emphasized the particular strain that Zarate faced as an inmate in a foreign country, where he knows no one, is unable to be visited by family, and does not speak the native language. (Id. at 17). In addition, defense counsel noted that, prior to his extradition, Zarate had been held for one year in Combita prison, "which is a very notorious prison, not only [for] violence, but the lack of sanitary conditions." (Id. at 17). Finally, defense counsel argued that two other members of the conspiracy, who he argued had been "as culpable as [Zarate] is, or more so, " had received prison sentences of 57 months and 72 months respectively. (Id. at Ex. G. p. 18). Defense counsel argued that Zarate should, accordingly, be sentenced to a term no greater than those of his co-conspirators. (Id.). The government objected to defense counsel's characterization of Zarate as the smallest actor in the conspiracy (id. at Ex. G. p. 19) and questioned the genuineness of his alleged remorse, noting a potential risk of recidivism. (Id. at Ex. G. p. 21). The court heard last from Zarate himself, who expressed remorse and appealed to the court for forgiveness. (Id. at Ex. G. p. 22).

In making its final determination as to sentence, the court emphasized that "this defendant was involved for a number of years, not just in local sales of cocaine, but in periodic involvement in the transportation of heroin destined for the United States" and that "the defendant's misconduct here was substantial" and "visited material harm on the United States." (Id. at Ex. G. pp. 23, 24). The court explained that "because I am more sympathetic to the defendant than the prosecutor would argue I should be" the court had "given [Zarate] the benefit of considerable reduction in the guideline range." (Id. at Ex. G. pp. 23-24). The court noted that "[h]ad he not served that one year in the, what defense counsel I think quite fairly describes is the notorious Colombian prison, I... probably would have concluded that a sentence at the higher end of the recast range would be appropriate, " but determined that "a sentence more or less in the middle is appropriate." (Id. at Ex. G. p. 24). Accordingly, on January 21, 2009, the court sentenced Zarate to 108 months in prison to be followed by five years of supervised release, plus a special assessment of $200. (Id.).

Zarate appealed his sentence to the Second Circuit arguing "that the below-Guidelines term of imprisonment received by his co-defendant, Sanchez, caused his sentence to be marred by unwarranted sentencing disparity." United States v. Sanchez, 370 F.Appx. 151, 153 (2d Cir. 2010); see Appellant's Brief, 2009 WL 6771600, at *14-*16 (2d Cir. Sept. 18, 2009). On March 19, 2010, the Circuit affirmed his conviction. Sanchez, 370 F.Appx. at 153. The Supreme Court denied his petition for a writ of certiorari on October 4, 2010. Zarate v. United States , 131 S.Ct. 191 (2010). Zarate is currently serving his sentence at Moshannon Valley Correctional Center in Phillipsburg, Pennsylvania.

On September 13, 2011, Zarate filed a motion in this court to have his sentence corrected pursuant to 28 U.S.C. 2255. Thus, he argues at one point that his sentence should be reduced to no more than 97 months imprisonment (see Mem. in Supp. of Mot. 15), and in other places that it should be reduced to no more than 78 months. (See id. at 20). He premises his motion on a claim of ineffective assistance of counsel. (See generally Pl.'s Mem. in Supp. of Mot.).

ANALYSIS

The ...


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