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Camacho v. United States

United States District Court, S.D. New York

January 10, 2018

JAVION CAMACHO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER

          KATHERINE B. FORREST, District Judge

         Javion Camacho, currently incarcerated at F.C.I. Bennettsville, brings a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Camacho was sentenced on February 21, 2014 to 250 months of incarceration for conspiracy to possess with intent to distribute heroin under 21 U.S.C. § 846. Camacho, acting pro se, [1] puts forth four bases for his petition: lack of jurisdiction; breach of the plea agreement; vagueness under Johnson; and ineffective assistance of counsel. For the reasons set forth below, the petition is DENIED.

         I. BACKGROUND

         On December 14, 2012, a cooperating witness (“CW”) told Jancey Valle, a member of a “crew of individuals who rob narcotics traffickers, ” that a confidential informant (“CI-1”) “had information” about the locations of narcotics stashes. (Presentence Investigation Report (“PSR”) ¶ 28). This was done at the direction of a case agent and under surveillance. (Id.) Valle responded that Camacho would be interested in meeting with CI-1, and that Camacho's crew “impersonates police officers, and may include actual police officers.” (Id.) Three days later, on December 17, 2012, the CW and CI-1 (at the direction of the Drug Enforcement Agency (“DEA”)) met with Valle and Camacho. (Id. ¶ 30.) CI-1 told Camacho that a minimum of ten kilograms of heroin (the “Shipment”) would be arriving in New York City and that CI-1 wanted to rob the Shipment. (Id.) Camacho informed CI-1 that he had a “robbery crew of police impersonators who would be able to carry out the robbery” and that he expected to be able to sell the heroin. (Id.) Camacho gave CI-1 a telephone number and told CI-1 to keep him informed about the Shipment. (Id.)

         On December 31, 2012, a case agent reviewed text messages exchanged by Camacho and CI-1 that day in which they agreed to meet on January 2, 2013. (Id. ¶ 31.) On January 2, Camacho met CI-1 at a restaurant along with Valle and Julio Camacho, his brother. (Id. ¶ 32.) CI-1 told Camacho that the Shipment would contain between twenty and forty kilograms of heroin; Camacho responded that the crew could “take over Jersey City” with that amount. (Id.) Julio Camacho asked CI-1 whether he would mind if the traffickers expecting the Shipment were “laid out”-killed-during the robbery. (Id.)

         On January 8, 2014, Camacho and CI-1 exchanged text messages and planned to meet the next day for the robbery. (Id. ¶ 33.) On January 9, Camacho texted CI-1 in preparation about the time and place, and at approximately 8:15 p.m., CI-1 met Camacho at a restaurant. (Id. ¶¶ 34-35.) CI-1 told Camacho and Victor Moral, one of the drivers, that the Shipment contained approximately twenty kilograms of heroin; Camacho told CI-1 “there was a police officer on the robbery crew in case they needed to shoot someone.” (Id. ¶¶ 35-36.) Eventually, a number of the co-defendants had arrived at the restaurant. Six cars then left, driving single file toward the destination. Camacho was the front passenger in the lead car. When they reached Lakeview Place, CI-1 called Camacho to tell him that the “spot” was up on the right and that Camacho's car should pull over just before it. (Id. ¶¶ 36-37.) When all six cars had turned right and pulled over, law enforcement approached and placed every individual under arrest. (Id. ¶ 37.)

         Federal agents searched the cars; in the lead car (Camacho's) they uncovered, inter alia, a ski mask, a GPS unit (purportedly to track vehicles used by narcotics traffickers), a firearm holster, and gloves. (Id. ¶ 39.) The car was also equipped with a “mechanized device that, at the direction of the driver, would cover the license plate with a steel plate.” (Id. ¶ 40.) After being advised of his Miranda rights, Camacho told agents that he had “just finished a sentence for manslaughter and the police had caught him ‘red-handed.'” (Id. ¶ 46.)

         The Government maintained that Camacho was the “most culpable” of the defendants, as he participated in all planning and managed logistics, strategy, and distribution of the expected drug proceeds. (Id. ¶ 52.) He also served as the primary point of contact with the crew and drove in the lead car. (Id.)

         On September 18, 2013, Camacho pled guilty to one count of conspiracy to violate federal narcotics laws pursuant to an agreement with a “non-binding stipulated sentencing range of 151-88 months.” (Plea Tr. at 36:1-3; ECF No. 1, Mot. at 6.) Louis Borrero, one of Camacho's co-defendants, went to trial; during that proceeding, this Court learned new facts about Camacho. (Dec. 17, 2013 Hearing Tr. at 6:14-7:6.) For example, the Court learned that Camacho and his crew performed various robberies of multiple kilograms of narcotics, and that “they would use as part of their modus operandi the impersonation of law enforcement either through the utilization of a vehicle and/or the utilization of . . . tools of the trade[, such as] T-shirts that said ‘police' or lights that would flash, Crown Victoria cars, things of that nature.” (Id. at 5:7-12.) Additionally, the crew was often armed during the robberies. (Id. at 5:13-14.) As a result, the Court informed the parties it was considering an upward variance. (Id. at 6:14-7:6.) Defendants were offered but did not seek a Fatico hearing. (Id.; 13-cr-0058, ECF No. 331, Jan. 31, 2014 Letter.) On February 21, 2014, Camacho was sentenced to 250 months of incarceration. (Sen. Tr. at 41:12-14.) Throughout the proceedings, he was represented by Mr. Jeffrey Pittell, who was appointed from the Criminal Justice Act Panel. (See Plea Tr.; Sen. Tr.)

         II. THE STING OPERATION & THE ABSENCE OF DRUGS IN FACT

         A. Legal Principles

         1. Manufactured Jurisdiction

         Federal agents are not permitted to “manufacture jurisdiction” in order to prosecute criminal activity “primarily of local concern.” United States v. Archer, 486 F.2d 670, 682 (2d Cir. 1973). In other words, federal officers may not “themselves suppl[y] the interstate element and act[] to ensure that an interstate element would be present.” Id. (holding that federal jurisdiction may not exist when federal agents provoked interstate calls that would not otherwise have been made).

         A sting operation, however, is rarely the “manufacturing” of jurisdiction. Rather, “government creation of the opportunity to commit an offense, even to the point of supplying defendants with materials essential to commit crimes, does not exceed due process limits.” United States v. Bout, 731 F.3d 233, 238 (2d Cir. 2013) (quoting United State v. Cromitie, 727 F.3d 194, 219 (2d. Cir. 2013)); see also United States v. Myers, 692 F.2d 823 (2d Cir. 1982) (allowing a sting operation where the Government “produced people with fictitious identities ready to pay bribes to Congressmen [but] the essential conduct of the agents and their paid informant was to see who showed up to take the bribes and videotape them in the act of doing so”). A sting operation does not become the manufacture of jurisdiction simply because an object of the crime, such as narcotics, does not exist in fact; the conspiracy was certainly real.

         2. 21 U.S.C. §§ 841 and 846

         Federal law makes it a crime to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Additionally, it is a crime to “attempt[] or conspire[] to commit any offense defined in this subchapter.” 21 U.S.C. § 846. A defendant convicted under § 846 “shall be subject to the same penalties as those prescribed for the offense . . . .” Id.

         3. Impossibility Defense

         A common feature of sting operations is that the object of a conspiracy-such as drugs or other contraband-never exists in fact. However, “inability [to commit a crime] due to frustrated efforts, factual impossibilities or unforeseen circumstances does not defeat the inference of an agreement to produce contested amounts of narcotics.” United States v. Hendrickson, 26 F.3d 321, 337 (2d Cir. 1994). “[T]he failure to produce is relevant only to the extent it suggests an absence of intent or agreement.” Id. Factual impossibility is “irrelevant”; “the ‘reasonable capability' analysis ‘looks to whether a defendant would have been able to consummate a narcotics transaction if the facts were as he believed them to be.'” Id. (quoting United States v. Howard, 998 F.2d 42, 51 (2d Cir. 1993).

         4. Void for Vagueness Doctrine and Johnson

         In 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) violates the Constitution's guarantee of due process because it is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015). The clause at issue defined “violent felony” to include any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. at 2555 (quoting 18 U.S.C. § 924(e)(2)(B)). The Court determined that the “indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites ...


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