United States District Court, E.D. New York
MEMORANDUM AND ORDER
TOWNES, United States District Judge. 
2008, Movant Robinson Naranjo-Ramirez was convicted, upon his
plea of guilty, of a single count of conspiracy to import
heroin. The Court sentenced him to 150 months'
imprisonment. Having unsuccessfully appealed, Movant now
moves to vacate, set aside, or correct his sentencing
pursuant to 28 U.S.C. § 2255(a), alleging that his trial
attorney provided ineffective assistance of counsel in
stipulating to a two-level aggravating role enhancement under
U.S.S.G. § 3B1.1 despite the Government's promise
not to seek such an enhancement. For the reasons set forth
below, the motion is denied.
Underlying Criminal Case
March 20, 2006, Movant was indicted in this district on a
single count of conspiracy to import one kilogram or more of
a substance containing heroin. The indictment stemmed from an
investigation undertaken by agents of the Bureau of
Immigration and Customs Enforcement, which revealed that
Movant was the head of a drug trafficking organization
engaged in importing narcotics into the United States from
Colombia and Brazil. Movant was arrested in Colombia on March
27, 2006, and detained at the notorious, high-security prison
in Combita, Colombia, for approximately eleven months before
the Colombian courts approved the United States' request
for his extradition. Movant was extradited on February 19,
2007, and was arraigned in this district on the following
Plea of Guilty
Movant was arraigned, he entered into plea negotiations with
the Government, then represented by AUSA Mary K. Barr. During
the course of those negotiations, AUSA Barr stated that the
Government subsequently would not advocate for the four-level
aggravating role enhancement under U.S.S.G. § 3B1.1.
Although the plea negotiations ultimately proved
unsuccessful, the Government took the position that it
"would not be just" to advocate for the aggravating
role enhancement in light of AUSA Barr's assurances to
the contrary. Transcript of Jan. 15, 2009, Proceedings, p. 7.
10, 2008, Movant appeared before this Court and pled guilty
to the only count in the indictment. Transcript of July 10,
2008, Plea ("Plea Transcript"), p. 11. There was no
plea agreement between the parties, but the Government
prepared a sentencing sheet which estimated a base level
offense of 36 with a three-level downward adjustment for
acceptance of responsibility. Sentencing Sheet, July 10,
2008, p. 2. In keeping with AUSA Barr's promise, the
sentencing sheet did not include any aggravating role
enhancement for Movant's leadership role in the
commission of the offense. Id.
the plea proceedings, the Court explained that if Movant pled
guilty, his term of imprisonment would be somewhere between
the minimum term often years and the maximum term of life
imprisonment. Plea Transcript, p. 12. The Court further
explained that the Government's estimate of the
guidelines range corresponded to a range of imprisonment of
135 to 168 months, but that the Government's estimate
could be wrong. Id. at 14. Movant confirmed that he
understood that the sentencing Judge would not be bound by
the Government's estimate, and that no one had made any
promises to him about what his sentence would be.
Id. at 14-15. Movant also confirmed that he had
spoken to his attorney about the advisory guidelines and
understood that they were not mandatory. Id. at 13.
The Court accepted Movant's guilty plea.
to sentencing, the Probation Department prepared a
presentence report which calculated Movant's total
offense level at 37-not 33, as estimated by the Government.
Like the Government, the Probation Department calculated the
base offense level at 36 under U.S.S.G. § 2D 1.1, based
on the belief that the offense involved 13.7274 kilograms of
heroin. However, unlike the Government, the Probation
Department included a four-level aggravating role enhancement
under U.S.S.G. §3B1.1 on the ground that Movant was the
leader of a drug-trafficking scheme involving at least 11
participants. The Probation Department then reduced the
offense level by three levels for acceptance of
responsibility, yielding a total offense level of 37.
their pre-sentencing submissions, both the defense and the
Government argued for an adjusted offense level of 31. The
parties agreed that the quantity of heroin attributable to
Movant was 7.7274 kilograms-the weight of the heroin actually
seized during the investigation. This quantity corresponded
to a base level of 34. See U.S.S.G. §
2D1.1(c)(3). The parties further agreed that a three-level
reduction for acceptance of responsibility was appropriate.
The Government did not advocate for an aggravating role
enhancement, noting that the parties agreed that "absent
a Fatico hearing, facts justifying an enhancement...
under U.S.S.G. § 3E1.1 have not been proved."
Letter to Hon. Sandra L. Townes from AUSA Justin D. Lerer
dated Jan. 14, 2009.
sentencing on January 15, 2009, the Court focused on
resolving the conflict between the Probation Department's
guideline calculations and those of the parties. The Court
agreed to amend the presentence report to reflect the
quantity of heroin agreed upon by the parties, and to reflect
a base offense level of 34, rather than 36. Transcript of
Jan. 15, 2009, Proceedings, p. 3. However, the Court insisted
on scheduling a Fatico hearing to determine whether
an aggravating role enhancement was appropriate, noting that
it had an obligation to consider "the history and
characteristics of this defendant as well as the
circumstances of this offense ..."Id. at 7. The
Government repeatedly stated that it had agreed not to
advocate for an aggravating role enhancement, but conceded
that it had enough evidence to proceed with the
Fatico hearing. Id. at 3-5, 7.
Fatico hearing never took place. At an appearance in
mid-May 2009, the parties agreed that a two-level aggravating
role enhancement was warranted under U.S.S.G. § 3B1.1,
and the Court directed that the presentence report be amended
to reflect this adjustment. On June 11, 2009, however, Movant
himself wrote this Court a letter expressing his
dissatisfaction with the agreement. Movant stated that he
felt the two-level enhancement was "unfair" since
he had pled guilty with the understanding that the Government
would not seek an enhancement for his leadership role. Letter
to Hon. Sandra L. Townes from Robinson Naranjo-Ramirez dated
June 11, 2008, p. 2. Movant did not request any particular
relief aside from "mercy and leniency."
Id. at 3.
start of the sentencing proceedings on July 31, 2009, the
Court read from Movant's June 11, 2009, letter. The Court
interpreted the letter as "objecting to the two level
enhancement, " and opined that a Fatico hearing
was necessary in light of this objection. Transcript of July
31, 2009, Sentencing ("Sentencing Transcript"), p.
4. Defense counsel urged a different interpretation,
asserting that Movant's letter had been
"inartful" and that he had not "meant to
convey" a desire to abandon the agreement. Id.
Defense counsel noted that both he and another defense
attorney had advised Movant not to proceed with the
Fatico hearing, that Movant had accepted that
advice, and that it was not Movant's "intention ...
to relitigate the issue of the two level enhancement."
Id. at 5.
giving Movant the chance to discuss his options with defense
counsel, Movant announced through his attorney that he was
prepared to withdraw the July 11, 2009, letter. Sentencing
Transcript, p. 8. The Court then questioned Movant directly:
The Court: Your attorney tells me that you wish to withdraw
that letter; ...