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United States v. Brickhouse

United States District Court, S.D. New York

March 19, 2017

RICKY J. BRICKHOUSE, Petitioner-Defendant.

          Rickey J. Brickhouse Pro Se Petitioner

          Gina Castellano, Esq. Assistant United States Attorney United States Attorney's Office Counsel for Respondent

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Pro se petitioner Ricky J. Brickhouse (“Petitioner”) has filed a Petition, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. For the reasons stated herein, the Petition is dismissed.

         I. Background

         On August 24, 2010, a grand jury returned a superseding indictment against Petitioner in two counts. The first count charged Petitioner with conspiracy to violate the narcotics laws of the United States, from January through June 2009, by distributing and possessing with intent to distribute 50 grams and more of cocaine base, in a form commonly known as “crack, ” in violation of Title 21, United States Code, Sections 812, 841(a)(1), and 841(b)(1)(A). (Presentence Investigation Report (“PSR”) ¶¶ 1-3.) The second count charged Petitioner with distributing and possessing with intent to distribute five grams and more of crack on or about April 14, 2009, in violation of Title 21, United States Code, Sections 812, 841(a)(1) and 841(b)(1)(B), and Title 18, United States Code, Section 2. (Id. ¶ 4.)

         Petitioner pled guilty to both charges on September 10, 2010 pursuant to a plea agreement dated September 2, 2010 (the “Plea Agreement”). In the Plea Agreement, Petitioner and the Government stipulated that the base offense level was 28, as Petitioner was responsible for approximately 138 grams of crack. (See Mem. of Law of the United States of America in Opp'n to Pet'r Ricky J. Brickhouse's Mot. To Vacate and Set Aside His Conviction and Sentence (“Gov't Mem.”) Ex. A (“Plea Agreement”), at 3 (Dkt. No. 18, 14-CV-963 Dkt.).)[1]Petitioner and the Government also agreed that two levels should be added, pursuant to U.S.S.G. § 2D1.1(b)(14)(E), because Petitioner committed the offense as part of a pattern of criminal conduct engaged in as a livelihood. (Id.)[2] Finally, the Parties agreed that there should be a three-level reduction, pursuant to U.S.S.G. § 3E1.1, for timely acceptance of responsibility. (Id. at 4.) As a result of these agreed-to calculations, the stipulated base total offense level was 27. (Id.) Petitioner and the Government further agreed that Petitioner had 10 criminal history points, thus placing him in Criminal History Category V. (Id. at 4-5.) This Criminal History Category, combined with the total offense level of 27, yielded a Guidelines Range of 120 to 150 months' imprisonment, with a mandatory minimum sentence of 120 months' imprisonment. (Id. at 5.)

         The Plea Agreement also contained a waiver, which provided that Petitioner would not “file a direct appeal, ” “nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255, ” “nor seek a sentence modification” of any “sentence within or below the Stipulated Guidelines Range of 120 to 150 months' imprisonment.” (Id. at 6.) The Parties further agreed that this “provision [was] binding on the parties even if the Sentencing Commission revises the Guidelines in a manner different from the Projected Revised Guidelines Analysis set forth [in the Plea Agreement].” (Id.)

         Before accepting Petitioner's plea, the Court conducted a thorough Rule 11 allocution. In particular, the Court confirmed that Petitioner was competent to enter a guilty plea, that he was fully aware of his constitutional rights and the waiver of many of those rights should he plead guilty, that he had had enough time to talk about the case with his attorney and was satisfied with his attorney's representation of him, that he was aware of the charges against him, and that he was aware of the statutory maximum and mandatory minimum sentences he faced. (Gov't Mem. Ex. B (“Plea Tr.”) 7-40.) The Court also advised Petitioner that it was the Court, and only the Court, that would determine the appropriate sentence to impose, and that the Court was not bound by what the Parties agreed to in the Plea Agreement regarding the Guidelines Range. (Id. at 34-35.) The Court also informed Petitioner that it was not required to impose a sentence within the applicable Guidelines Range. (Id. at 35.) And, the Court specifically discussed with Petitioner the meaning and significance of the waiver provision, advising him that if the Court “impose[d] a sentence of 150 months or down to zero, ” under that provision, he had “agreed that [he] [would] not appeal or legally challenge [that sentence].” (Id. at 37-38.) Finally, the Court found that there was a sufficient legal and factual basis for the plea and that Petitioner was pleading guilty because he was guilty. (Id. at 43-44.)[3]

         In advance of sentencing, the Probation Department prepared a PSR. In the PSR, the Probation Department arrived at a different Guidelines calculation than the Parties did in the Plea Agreement. According to the Probation Department, the total offense level was 25 (and not 27, as calculated by the Parties), (PSR ¶¶ 18-25), and Petitioner was in Criminal History Category IV (and not V, as suggested by the Parties), (id. ¶¶ 30-51). The resulting Guidelines Range was 84-105 months' imprisonment, (id. ¶ 101), but because the high end of this range was below the mandatory minimum, the operative Guidelines Range was 120 months' imprisonment, (id.).

         Also in advance of sentencing, Petitioner's counsel (Francisco Celedonio) submitted a 25-page letter to the Court arguing, among other things, that under the FSA, Petitioner was facing a mandatory minimum of 60 months' imprisonment (instead of 120 months), and, in fact, asking the Court to impose a sentence of 60 months' imprisonment. (See Gov't Mem. Ex. C (“Celedonio Letter”).) Among other things, the FSA raised the threshold quantities of crack that triggered the mandatory minimum (and maximum) provisions of the narcotics laws. For example, prior to the FSA's enactment, five grams of crack was sufficient to trigger the five-year mandatory minimum, under Title 21, United States Code, Section 841(b)(1)(B), and 50 grams was the threshold for the ten-year mandatory minimum, under Title 21, United States Code, Section 841(b)(1)(A). Before the FSA, the same mandatory minimums required the sale of 500 grams and 5 kilograms of cocaine, amounting to a 100-1 ratio of cocaine to crack. Under the FSA, which reduced the cocaine-to-crack ratio from 100-1 to 18-1, the new threshold amounts for crack became 28 and 280 grams, respectively. Left open by the FSA, however, was whether it applied to defendants who violated the narcotics laws before August 3, 2010, the date of enactment, but who had not yet been sentenced. At the time of Petitioner's sentencing, the law in the Second Circuit was that the FSA did not apply retroactively. See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010) (holding that the FSA did not apply to defendants convicted and sentenced before the FSA) (citing United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) (“[B]ecause the FSA took effect . . . after appellant committed his crimes 1 U.S.C. § 109 bars the Act from affecting his punishment.”)).[4] Undaunted by this legal landscape, counsel argued in his letter that the Court should apply the FSA to Petitioner and sentence him to the lower mandatory minimum.

         The Court imposed the sentence on February 8, 2011. At sentencing, the Court fully complied with the requirements of Fed. R. Crim. P. 32-confirming that the Parties had read the PSR and had an opportunity to lodge any objections to it. (Gov't Mem. Ex. D (“Sentencing Tr.”) 5-8.) The Court also conducted its own Guidelines calculation, ultimately adopting the calculation set forth in the PSR and concluding that the Guidelines Range was the 120-month mandatory minimum. With regard to the retroactive application of the FSA, the Court noted that it already had determined that the FSA did not apply to defendants whose criminal conduct predated the statute's enactment, and declined Petitioner's counsel's request to re-consider its ruling. (Id. at 4-5.) In light of this ruling, counsel for Petitioner then asked the Court to impose the minimum sentence of 120 months' imprisonment. (Id. at 9.)

         The Court imposed the mandatory minimum sentence of 120 months' imprisonment, finding, after considering all the factors set forth in 18 U.S.C. § 3553(a), that it was the sentence that was sufficient but no more than necessary to achieve the goals of the sentencing laws. (Id. at 17-23.) The Court also imposed the minimum term of supervised release (5 years) and a mandatory special assessment of $200. (Id. at 23-24.) At the end, the Court advised Petitioner that to the extent he had not waived it, he had the right to appeal the sentence. (Id. at 27.)[5] The judgment of conviction was filed and entered on April 19, 2011, and Petitioner filed a notice of appeal on April 22, 2011.

         On July 15, 2011, the United States Department of Justice changed its tune on the retroactive application of the FSA. Instead of resisting such application of the FSA, which had been the Department's posture dating back to the enactment of the FSA, the Justice Department announced that it now held the view that the FSA should apply to all sentences that occurred after August 3, 2010, regardless of when the offense conduct took place. (See Gov't Mem. 10.)

         Four months later, Petitioner's counsel filed his brief in support of Petitioner's appeal. In that brief, counsel strenuously argued that the combination of the FSA itself and the Justice Department's changed policy mandated reversal of the sentence. (See Gov't Mem. Ex. E). In response, the Government moved to dismiss the appeal, relying principally on the appeal waiver in the Plea Agreement. (See Gov't Mem. Ex. F.) While the Government's motion was pending, the Supreme Court held that the FSA applied to defendants sentenced after August 3, 2010, irrespective of when the underlying offense conduct occurred. See Dorsey v. United States, 132 S.Ct. 2321, 2336 (2012). On August 15, 2012, the Second Circuit denied the Government's motion to dismiss Petitioner's appeal. However, on November 6, 2012, the Second Circuit held that Dorsey, even though altering the law regarding the retrospective applicability of the FSA, did not constitute an extraordinary circumstance that would deem an appellate waiver unenforceable. See United States v. Harrison, 699 F.3d 158, 159 (2d Cir. 2012). Relying on Harrison, the Second Circuit subsequently rejected Petitioner's appeal. See United States v. Brickhouse, 517 F. App'x 22, 23 (2d Cir. 2013). In particular, the panel held:

The colloquy at Brickhouse's plea hearing makes clear that the appeal waiver was knowing and voluntary (see Plea Hr'g Tr. 36-38 (Sept. 10, 2010)), and such a waiver is not contrary to public policy. Brickhouse's appeal waiver was valid when his plea was entered, and the waiver did not lose its effectiveness when the district court in a subsequent proceeding made statements arguably inconsistent with that waiver. . . .
Even though the Supreme Court has since determined, in [Dorsey], that the [FSA] may apply retroactively to criminal conduct completed before the Act's effective date, the change in law does not render ...

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