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United States v. Santiago

United States District Court, S.D. New York

January 26, 2017

UNITED STATES OF AMERICA,
v.
ROBERTO SANTIAGO, Defendant. ROBERTO SANTIAGO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          RICHARD J. SULLIVAN, UNITED STATES DISTRICT JUDGE

         Petitioner Roberto Santiago brings this petition for the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2255, challenging the sentence imposed by the Court after Petitioner pleaded guilty to participating in a narcotics conspiracy. (10-cr-555, Doc. No. 87 (“Pet.”).) For the reasons set forth below, the petition is denied.

         I. Background[1]

         On December 21, 2012, a grand jury returned a superseding indictment charging Petitioner with one count of conspiracy to distribute and possess with intent to distribute one kilogram and more of mixtures and substances containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Doc. No. 38.) At a hearing held on April 2, 2013, pursuant to a plea agreement with the government, Petitioner pleaded guilty to the lesser-included offense of conspiracy to distribute and possess with intent to distribute 100 grams and more of mixtures and substances containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. (Plea Tr. at 37-38.) The parties' plea agreement set forth a stipulated advisory sentencing range of 168 to 210 months' imprisonment pursuant to the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) and noted that Petitioner was subject to a statutory mandatory minimum term of imprisonment of 60 months pursuant to 21 U.S.C. § 841(b)(1)(B). (Plea Agmt. at 2-3.) The parties also agreed not to seek any departures from the stipulated Guidelines range set forth in the plea agreement. (Id. at 3.) Finally, the plea agreement contained an appellate and collateral attack waiver, whereby Petitioner agreed that he would neither directly appeal nor challenge under 28 U.S.C. § 2255 or § 2241 any sentence within or below the stipulated Guidelines range. (Id. at 5.)

         At the change-of-plea hearing, Petitioner was placed under oath, and the Court inquired into and was satisfied as to Petitioner's competence to plead guilty. (Plea Tr. at 2-5.) The Court asked whether Petitioner had sufficient time to discuss the plea agreement with his attorneys (id. at 5-6), explained the charge in the superseding indictment and confirmed that Petitioner understood it (id. at 15-19), reviewed the maximum penalties for the offenses to which Petitioner was pleading guilty (id. at 19-20), and confirmed Petitioner's understanding that he was waiving his right to appeal or otherwise challenge any sentence imposed by the Court that was less than 210 months' imprisonment (id. at 33). At the conclusion of the proceeding, the Court determined that Petitioner understood his rights and knowingly waived them, and that his guilty plea was entered knowingly and voluntarily and was supported by an independent basis in fact for each of the elements of the offense charged in the superseding indictment. (Id. at 38.) Consequently, the Court accepted Petitioner's guilty plea and scheduled sentencing. (Id.)

         On November 22, 2013, the Court held what was originally intended to be a sentencing hearing. At the hearing, however, the Court informed the parties that the offense conduct described in the presentence report appeared to call for two offense level enhancements not included in the parties' stipulated Guidelines range: (1) a two-level firearms enhancement pursuant to U.S.S.G. § 2D1.1(b)(1), based on firearms recovered from a heroin mill in the College Point neighborhood of Queens (“Mill-1”) that was apparently used in furtherance of the conspiracy, and (2) a three- or four-level leadership enhancement (as opposed to the two-level leadership enhancement that the parties and Probation had suggested) pursuant to U.S.S.G. § 3B1.1(a), because the criminal activity involved five or more participants. (Conf. Tr. at 9-16.) In light of these issues, at the suggestion of the parties, the Court adjourned sentencing to January 24, 2014 and directed the parties to make additional written submissions. (Id. at 15-16; Doc. No. 57.)

         The parties' written submissions thereafter made clear that there were factual disputes relevant to determining the appropriateness of the enhancements identified by the Court. Specifically, the government argued that both enhancements applied because Petitioner “was connected to, present inside of, and assisted in the operation of Mill-1, ” “firearms were present in Mill-1, ” and Petitioner “was a manager or supervisor” of an organization that included “at least 6 male individuals [who] worked in Mill-1.” (Doc. No. 60 at 2.) Petitioner, by contrast, asserted that neither of the enhancements was appropriate because each turned on Petitioner's supposed supervision of Mill-1, when in fact Santiago had “never worked in Mill-1 and he did not have any authority over any of the workers there.” (Doc. No. 62 at 2.) Petitioner stated that Mill-1 “was owned and operated by” a codefendant, Sean Cruz, and that Petitioner “was merely a customer who purchased drugs from Mr. Cruz.” (Id.) Due to the factual dispute regarding Petitioner's role at Mill-1, the Court scheduled an evidentiary hearing to occur prior to sentencing, pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979). (Doc. No. 63.)

         On February 6, 2014, the Court conducted a Fatico hearing, at which time the government called one witness, a detective from the task force that investigated Petitioner's case, who provided a hearsay account of what two cooperating witnesses had told him about Petitioner's role as a supervisor at Mill-1. (Sent'g Tr. at 7-51.) After the government rested, Petitioner took the stand and denied having been a supervisor of Mill-1 or knowing of the existence of the two firearms that were ultimately seized at Mill-1. (Id. at 54-58.) Petitioner further testified that Sean Cruz and various members of Cruz's organization operated from the mill, which Cruz controlled, and that Petitioner visited Mill-1 on several occasions for the purpose of “bringing money or to pick up” heroin. (Id. at 54.) Furthermore, he testified that, over the course of “two or three years, ” he obtained heroin from Sean Cruz in “loose” batches of approximately 50 to 200 grams and then brought it back to his own heroin mill in Astoria, where he subdivided and bagged it with an employee named “Shorty, ” to be distributed by another employee named “Pablo.” (Id. at 53-54, 58-59, 63-66.) Petitioner testified that he and Cruz had “talked about” Petitioner taking over control of Cruz's entire operation, but that, ultimately, “it never happened.” (Id. at 55.)

         Following the hearing, the Court found that Santiago had testified credibly when he denied having supervised or participated in the operations of Mill-1; accordingly, the Court struck from the presentence report all references to Santiago's supervision of that heroin mill. (Id. at 98-99.) The Court thereafter concluded that Petitioner's Guidelines range was 168 to 210 months, which reflected a two-level role enhancement due to Petitioner's supervision of Pablo and Shorty - rather than a three-level enhancement for any supervision of the individuals working at Mill-1 - and no enhancement for a firearm. (Id. at 99-100.) After hearing from counsel and from Petitioner, the Court imposed a below-Guidelines sentence of 144 months' imprisonment, to be followed by five years of supervised release. (Id. at 121; see also Doc. No. 67.)

         Petitioner thereafter appealed to the Second Circuit on the grounds that this Court (1) “erred by failing to vacate his guilty plea and dismiss his indictment sua sponte” after the evidence presented at the Fatico hearing “disproved the government's allegations that [Petitioner] participated in a large-scale heroin mill”; (2) “erred in calculating his drug quantity and in imposing a leadership enhancement, thus rendering his sentence procedurally unreasonable”; and (3) imposed a “substantively unreasonable” sentence by “fail[ing] to consider [Petitioner's] underprivileged background and lack of a prior criminal record.” United States v. Graham, 610 F.App'x 56, 57 (2d Cir. 2015). Petitioner also argued that his counsel was ineffective for failing to raise these arguments at the time of sentencing. Id. On May 18, 2015, the Second Circuit issued a summary order affirming Petitioner's conviction in all respects. Id. at 60.[2]

         On July 15, 2015, Petitioner filed the instant petition (Doc. No. 87), which was fully briefed by October 20, 2015 (Doc. No. 97). The government and Petitioner filed supplemental letters regarding the petition on October 22 and 28, 2015, respectively. (Doc. Nos. 98, 107.) Petitioner argues that his conviction should be vacated because his counsel below provided ineffective assistance by failing to argue that (1) Petitioner's guilty plea was not voluntary, knowing, and intelligent because Petitioner is actually innocent (Pet. at 3-5), (2) the Indictment was constructively amended (id. at 5-6), (3) the government suppressed and withheld Brady and Giglio material before Petitioner pled guilty (id. at 7-10), and (4) an aggravated role enhancement to Petitioner's sentencing guidelines was improper (id. at 10-11).

         II. Legal Standard

         Section 2255 enables a prisoner who was sentenced by a federal court to petition that court to vacate, set aside, or correct the sentence on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Relief under Section 2255 is generally available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation marks omitted). “Because collateral challenges are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (internal quotation marks omitted). A claim of ineffective assistance of counsel, however, is one permissible basis for bringing a Section 2255 petition.

         The Sixth Amendment to the United States Constitution guarantees a criminal defendant's right to the assistance of counsel. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”). When challenging the effectiveness of counsel's assistance, a party must demonstrate that (1) counsel's representation “fell below an objective standard of reasonableness” measured against “prevailing professional norms, ” and (2) this “deficient performance prejudiced the defense” in the sense that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). A court must reject a movant's ineffective ...


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