Peralta v. US

Filing 920100304

Opinion

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var gAgent = navigator.userAgent.toLowerCase() var gWindows = ( (gAgent.indexOf( "win" ) != -1 ) || ( gAgent.indexOf( "16bit" ) != -1 ) ) var gIE = ( gAgent.indexOf( "msie" ) != -1 ) var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) ) var floatwnd = 0 var WPFootnote1 = 'Of the District of Massachusetts, sitting by designation.\ ' var WPFootnote2 = ' Whether Ortiz discussed the agreement with Peralta in person\ is a matter of some dispute. Peralta testified at the hearing\ before the Magistrate Judge that all communications with Ortiz\ concerning the plea agreement were made through the mail. However,\ Ortiz’s September 16 letter refers to an upcoming visit on\ September 21. Both Peralta and Ortiz signed and dated the\ agreement September 21, 2004. Peralta also initialed each page of\ the plea agreement, despite not having been requested to do so in\ any of the correspondence between himself and Ortiz. The\ Magistrate Judge thus concluded that Ortiz did in fact visit\ Peralta on September 21, 2004, to discuss the plea agreement and\ that Peralta signed it on that date. \ ' var WPFootnote3 = ' See Blakely v. Washington, 542 U.S. 296 (2004). By the time\ of the sentencing hearing, on May 16, 2005, the Supreme Court had\ decided United States v. Booker, 543 U.S. 220 (2005), and the\ sentencing guidelines were thus treated as advisory.\ ' var WPFootnote4 = ' All references are to the 1995 edition of the Guidelines.\ ' var WPFootnote5 = '  The PSR stated that Peralta’s criminal history category might\ over-represent his prior record because, although he had three\ felony convictions and qualified as a career offender, he had\ served only a total of six months in custody. \ ' var WPFootnote6 = ' The government also argued that “even under New York law, the\ state of New York permits consideration of a youthful offender\ conviction under certain circumstances. . . a conviction occurs\ before the defendant receives the youthful offender status.”\ ' var WPFootnote7 = ' The motion raised three grounds: (1) trial counsel was\ ineffective by withdrawing a motion to dismiss the indictment\ "counting on an alleged promised sentence as a ‘quid pro quo’\ agreement"; (2) appellate counsel was ineffective by withdrawing a\ pro se submission filed by Peralta under Fed. R App. P. 28(j) to\ present newly-acquired evidence of Peralta\'s birth date; and (3)\ the government breached the plea agreement by offering Peralta a\ sentence of five years and then "declar[ing] him as a ‘career\ criminal.’"\ ' var WPFootnote8 = ' Counsel was appointed for Peralta prior to the hearing.\ ' var WPFootnote9 = ' According to Ortiz, Peralta was convinced that, because he\ was of Dominican origin and being tried in Maine, the charges\ against him would never be dismissed. Ortiz explained that the\ motion would rise or fall on its own merits, regardless of\ Peralta\'s ethnic background, but that he could not guarantee\ success on the motion. This fear of racial prejudice, Ortiz\ contends, was the basis for Peralta\'s decision.\ ' var WPFootnote10 = ' During the sentencing hearing, Ortiz told the court that it\ was Peralta’s desire to withdraw the motion and instead plead\ guilty. Peralta was present at the time that statement was made\ and did not indicate that he disagreed. \ ' var WPFootnote11 = ' During the Rule 11 colloquy at the change of plea, Ortiz\ stated that, from defendant’s perspective, the only “deviation, if\ any” from the prosecution version of the offense was that Peralta\ did not “recollect joining the conspiracy in 1992, but in 1993.”\ ' var WPFootnote12 = ' The PSR stated that in December 1995, the Maine Drug\ Enforcement Agency received information that Rick LaChance, Albin\ Lavallee, and Albert Letourneau were involved in cocaine\ trafficking. An undercover agent made several purchases of cocaine\ from Lavallee, who was then arrested. Lavallee cooperated and told\ agents that LaChance had been selling cocaine since 1991, and that\ LaChance had traveled to New York to purchase the drugs from David\ Gell and “Luis” Peralta, who turned out to be the defendant. \ Peralta, however, told the probation officer during the presentence\ investigation that “in his recollection he became involved in the\ conspiracy during 1993.”\ ' var WPFootnote13 = ' To the extent Peralta claims his sentence was unreasonable,\ the “subsequent appellate panel” branch of the law of the case\ doctrine also applies. See United States v. Wallace, 2009 WL\ 2184670, **5, 8 (1st Cir. July 23, 2009). This Court has already\ held “that the sentencing judge sentenced Peralta to a reasonable\ prison term, that no legal error underlay the court’s reference to\ the co-conspirator’s sentence, and that the court employed a mode\ of analysis which was entirely consistent with that later\ prescribed” in United States v. Jiminez-Beltre, 440 F.3d 514 (1st\ Cir. 2006)(en banc). Peralta I, 457 F.3d at 172. Peralta has not\ met the heavy burden required to invoke an exception to that\ doctrine. Wallace, 2009 WL 2184670 at *8.\ ' function WPShow( WPid, WPtext ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'visible'" ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" ); floatwnd.document.open( "text/html", "replace" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( " p { margin-top:0px; margin-bottom:1px; } \r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( 'Close'); floatwnd.document.write( "

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