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Hernandez v. United States

United States District Court, Second Circuit

November 4, 2013

JUAN MIGUEL HERNANDEZ, Petitioner,
v.
THE UNITED STATES OF AMERICA, Respondent.

OPINION & ORDER

PAUL A. CROTTY, District Judge.

Petitioner-Defendant Juan Miguel Hernandez ("Hernandez") petitions, pro se, under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, claiming ineffective assistance of counsel. On September 27, 2010, Hernandez pled guilty pursuant to a written plea agreement. The plea agreement stated that "defendant [would] not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255... any sentence within or below the Stipulated Guidelines Range" of 168 to 210 months' imprisonment. He was sentenced to a term of 156 months. Notwithstanding his promise not to collaterally attack his sentence, Hernandez now claims that counsel failed to advise him of, and to object to, the following three issues in the plea agreement: (1) inclusion of a two-level dangerous weapon increase to the offense level; (2) failure to identify the relevant conduct used to determine the offense level; and (3) use of the total quantity of drugs involved to determine the offense level. Hernandez's petition is DENIED.

BACKGROUND

On January 15, 2010, Drug Enforcement Administration ("DEA") agents arrested Hernandez in his home and seized a loaded firearm, $89, 400 in cash, and an assortment of drugs, including 1, 19110mg pills of Oxycodone, 464 vials of 1000mg of Ketamine, 420 Xanax pills, and 839 ecstacy pills. Presentence Investigation Report ("PSR") ¶¶ 23, 26-27. The DEA agents also seized one kilogram of cocaine from Hernandez's mother's home, id. ¶ 29, and a loaded gun from Hernandez's locker at Crunch Gym, id. ¶ 22. On February 24, 2010, Hernandez was charged in a six-count indictment with possession with intent to distribute controlled substances and possessing a firearm in furtherance of a narcotics violation. See 10 Cr. 149, Dkt. No. 7.

Hernandez pled guilty to Count Two of the Indictment (possession with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B)) pursuant to a plea agreement. See Letter from Ortiz to Talkin (September 27, 2010). The plea agreement calculated the offense level at 33 and the criminal history level at III, resulting in a Guidelines sentencing range of 168 to 210 months' imprisonment. Id. at 5. Hernandez agreed that a sentence within the range was reasonable in light of all the 18 U.S.C. § 3553(a) factors. Id. In addition, Hernandez agreed that he would "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." Id. at 6. Before his plea was accepted, Hernandez was placed under oath and testified that he reviewed the indictment with his attorney, understood the charges, appreciated the consequences of a guilty plea, and was satisfied with his attorney's counsel, advice, and representation. September 27, 2010 Plea Tr. at 4:15-5:5. Further, Hernandez said he had signed the plea agreement, discussed it with counsel, and understood its parameters. Id. at 9:4-11:23. The Court specifically addressed the waiver of appeal and collateral attack provision. Id. at 10:19-23. Hernandez testified he understood that he could be sentenced at or below the guideline range, id. at 10:3-18, and if he was sentenced within the range, he "will have given up [his] right... to litigate in a collateral proceeding the length of his sentence." Id. at 10:19-23. Hernandez also admitted as follows:

In about early January 2010 I knowingly possessed and intended to sell cocaine powder in excess of 500 grams, knowing it was illegal and wrong. I also want to take this moment to apologize for my actions before this Court and to my family members and friends present for appearing here under these circumstances. I am accepting culpability for it. I also possessed it in New York City, in Manhattan.

Id. at 13:17-24. The Court accepted his guilty plea.

On January 6, 2011, the Court recognized Hernandez's partial cooperation and imposed a below the guidelines sentence of 156 months' imprisonment and eight years of supervised release, ordered forfeiture of $89, 400, and imposed a $100 special assessment fine. January 6, 2011 Sentencing Tr. at 16:5-8, 17:20-21. The Court dismissed all remaining counts. Id. at 18:3-5.

DISCUSSION

I. Validity of the Plea Agreement and Waiver

Waivers of the right to appeal or collaterally attack one's sentence are generally enforceable. See, e.g., Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001). There are limited exceptions:

when the waiver was not made knowingly, voluntarily, and competently, when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, when the government breached the plea agreement, or when the sentencing court failed to enunciate any rationale for the defendant's sentence....

United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000) (citations omitted). A defendant's waiver is knowing and voluntary where the defendant "fully understood the consequences of the waiver, " and his decision was not "the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally." Lindsey v. United States, No. 04 Civ. 7985 (KMW), 2007 WL 4562927, at *2 (S.D.N.Y. Dec. 26, 2007) (citing United States v. Rogue, 421 F.3d 118, 122 (2d Cir. 2005)). Where the record reveals that the waiver was knowing and voluntary, and if there is no merit to the ineffective assistance claim, the waiver should be enforced. See United States v. Monzon, 359 F.3d 110, 115, 119 (2d Cir. 2004).

Hernandez's sworn testimony during the plea allocution demonstrates that he understood the waiver provision. Hernandez stated that he reviewed the indictment's charges, appreciated the consequences of a plea of guilty and was satisfied with his attorney's counsel, advice, and representation. September 27, 2010 Plea Tr. at 4:15-5:5. According to Hernandez's testimony, he knew he was "giving up valuable rights" and specifically acknowledged that he was giving up all the rights indicated in Federal Rule of Criminal Procedure 11(b)(1)(A)-(N). Id. at 5:6-9:3. Further, Hernandez testified he had signed the plea agreement, discussed it with counsel, and understood its parameters. Id. at 9:4-11:23. He also testified that the plea was not the product of threats or promises to induce him to sign it. Id. at 9:8-10. When asked whether he understood that he was giving up his right "to take a direct appeal and to litigate in a collateral proceeding, " Hernandez responded, ...


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