Naranjo-Ramirez v. United States of America

Filing 14

MEMORANDUM AND ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). For the reasons set forth herein, Movant has not adduced evidence to establish that his trial counsel's performance was deficient in any respect. Since Mova nt has not made out the first prong of the Strickland standard, the Court need not consider the second prong. Movant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied in its entirety. Ordered by Judge Sandra L. Townes on 7/25/2017. C/M w/Appeals Packet. (Barrett, C)

FLED
IN CLERK'S OFFICE
U.S. DISTRCT COURT EJD.M.Y.

* JUL28 2017

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BROOKLYN OFFtCE

ROBINSON NARANJO-RAMIREZ,
Movant,
MEMORANDUM AND ORDER
-against1 1-CV-04987 (SLT)
UNITED STATES OF AMERICA,
Respondent.
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TOWNES, United States District Judge:'
In July 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. § 3B 1.1 despite the Government's promise not to seek such an enhancement. For the
reasons set forth below, the motion is denied.

BACKGROUND
The Underlying Criminal Case
On 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
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The Court gratefully acknowledges the assistance of legal intern, Jenna S. Smith of the University of Pennsylvania
Law School, in the preparation of this Memorandum and Order.

for his extradition. Movant was extradited on February 19, 2007, and was arraigned in this
district on the following day.

The Plea of Guilty
After 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.
On July 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.
During the plea proceedings, the Court explained that if Movant pled guilty, his term of
imprisonment would be somewhere between the minimum term of ten 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,

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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.
Prior 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. §
2D1. 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 drugtrafficking 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.
In 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.
At 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

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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.
The 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. § 3B 1. 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.
At the 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

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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.
After 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; is that
correct?
The [Movant]: That is correct, yes.
The Court: And you know we had a hearing on the role in this case which is not a
role that was advocated by the government, it is a role that was determined under
the guidelines pursuant to the facts as they have been stated in the presentence
investigation report, you understand that?
The [Movant]: Yes.
The Court: All right. And we had at one point when you objected to the role at the
time it was a four level enhancement, we had scheduled a hearing, a Fatico
hearing and that can be scheduled again if you are not satisfied, do you
understand that?
The [Movant]: Yes.
The Court: And do you wish to go forward with a hearing or to leave this as we
have discussed on the record with a total offense level of 33?
The [Movant]: No. If you mean do I want a Fatico, no.
The Court: All right. And that includes you understand, the two level
enhancement for role in the offense, leadership role.
The [Movant]: Yes. (Sentencing Transcript, p. 8-9.)
The Court then proceeded to pronounce sentence. First, the Court noted that Movant was
in Criminal History Category I, with a total offense level of 33. Sentencing Transcript, p. 14.
Then, using the Sentencing Table and Fine Table set forth in the United States Sentencing
Guidelines, the Court determined that the imprisonment range was 135 to 168 months and that

the fine range was $20,000 to $4 million. Id. The Court expressly rejected Movant's request for a
downward departure and sentenced him to 150 months' imprisonment—near the middle of the
guidelines range. Id. at 15. The Court waived the fine. Id.
Movant appealed his conviction. In his appellate brief, Movant argued that his sentence
was unreasonable because the district court lacked the authority to order the Fatico hearing. In
addition, Movant argued that the district court erred in failing to downwardly depart from the
guidelines range in light of the harsh conditions that Movant had endured at the Colombian
prison where he was detained before extradition.
In a summary order issued on Novmber 23, 2010, and amended on December 2, 2010,
the Second Circuit rejected both of these arguments and affirmed Movant's conviction. United
States v. Naranjo-Ramirez, 402 Fed. Appx. 576 (2d Cir. 2010). With respect to the first
argument, the Second Circuit noted that the Government's promise to refrain from arguing for a
leadership enhancement did "not forbid the government from responding to a specific request of
the Court by 'supplying the Court with the law and the facts." Id. at 578 (quoting United States
v. Riera, 298 F.3d 128, 135 (2d Cir. 2002) (internal citations omitted). Noting that it was within
the power of the district court to direct the Government to provide pertinent information about
the facts of the case, the Second Circuit held that the Court did not commit a procedural error by
ordering a Fatico hearing. Id.
With respect to Movant's second argument, the Second Circuit acknowledged that
presentence confinement conditions could "in appropriate cases be a permissible basis for
downward departures," Naranjo-Ramirez, 402 Fed. Appx. at 578 (quoting United States v. Carty,
264 F.3d 191, 196 (2d Cir. 2001)), and that other district courts have in fact "invoked the
unusually difficult conditions in the Combita prison in granting downward departures." Id.

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(quoting United States v. Torres, No. 01 CR 1078, 2005 WL 2087818 at *2 (S.D.N.Y. Aug. 30,
2005)). However, the Second Circuit noted that the Court was "under no obligation to depart
from the Guidelines on the basis of [Movant's] allegedly harsh presentence confinement
conditions." Id. The Second Circuit also rejected Movant's argument that the Court erred in
failing to consider the harsh conditions at the Combita prison. The Second Circuit held that
Movant had failed to overcome the "strong presumption that a sentencing judge has taken
properly presented arguments into account and considered all the § 3553(a) factors in the course
of imposing a sentence." Id. (quoting United States v. Fernandez, 443 F.3d 19, 34-35 (2d Cir.
2006)).

The Instant Motion
Movant now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
2255, alleging that his trial attorney provided ineffective assistance of counsel in violation of his
Sixth Amendment rights. Movant is proceeding pro Se, and the Court is mindful that
"submissions of apro se litigant must be construed liberally and interpreted 'to raise the
strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (emphasis added) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
In order to establish ineffective assistance of counsel, Movant must satisfy the two prong
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The standard requires that
Movant first "show that counsel's performance was deficient," then demonstrate that counsel's
deficient performance prejudiced Movant. Id. With respect to the first prong of the Strickland
standard, Movant argues his counsel erred by stipulating to the two-level enhancement rather
than requesting specific performance of the Government's agreement not to seek an aggravating
role enhancement. Movant's Memo, p. 5-6. This argument is based on Movant's belief that the

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Government itself prepared the "sentencing memorandum" which advocated a four-level
aggravating role enhancement in disregard of AUSA Barr's representation. Id. Relying on
Santobello v. New York, 404 U.S. 257 (1971)—a case which holds that specific performance is
among the remedies available to a defendant when the Government violates a plea agreementMovant asserts that his attorney could have insisted on eliminating the aggravating role
enhancement. Id. Movant argues that his attorney not only failed to demand specific
performance, but stipulated to the two-level enhancement without Movant's consent. Id.
With respect to the second prong, Movant contends that absent Counsel's error, he would
have been eligible for the "safety valve." Movant's Memo, p. 11. The so-called "safety valve" is
§ 18 U.S.C. § 3553(f), which "provides that district courts may impose sentences below the
statutory mandatory minimums set forth in 21 U.S.C. §§ 841, 844, 846, 960, and 963, if certain
factors are present." United States v. Holguin, 436 F.3d 111, 115 (2d Cir. 2006). Those "factors"
include, among other things, that the defendant "was not an organizer, leader, manager, or
supervisor of others in the offense ...," 18 U.S.C. § 3553(f)(4). Movant argues that the "safety
valve" could have reduced his sentence to 87 months, "which is far ... better than the 150
months he is currently serving." Id.
In a 22-page letter dated June 4, 2012 (the "Response"), the Government addresses each
of Movant' s arguments. With respect to the contention that defense counsel committed error by
stipulating to the two-level enhancement, the Government argues that this stipulation was a
strategic decision and that "sound trial strategy' does not constitute ineffective assistance."
Response, p. 14, 16 (quoting Strickland, 466 U.S. at 690). The Government also argues that,
even if Movant could establish his counsel committed error, he could not establish a reasonable
probability that the error affected the outcome of his case. Id. at 20-21.

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In a four page letter dated July 2, 2012 (the "Reply"), Movant largely repeats the
argument raised in his moving papers. Movant again argues that his trial counsel's representation
was deficient because he failed to request that Movant "be sentenced without any leadership role
in the offense as per the verbal agreement" with the Government. Reply, p. 2. However, the
Reply also suggests that Movant's counsel should have attempted to withdraw Movant's guilty
plea when the Government allegedly violated the agreement which "enticed" Movant into
pleading guilty. Id. In the alternative, the Reply requests that the Court hold an evidentiary
hearing "where the records will be fully develop[ed]." Id. at 4.

DISCUSSION
Section 2255(a) of Title 28 of the United States Code provides, in pertinent part:
[a] prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States, or ... is otherwise
subject to collateral attack, may move the court which imposed the sentence to
vacate, set aside, or correct the sentence.
"[A] motion under § 2255 is not a substitute for direct appeal." Sapia v. United States, 433 F.3d
2121, 217 (2d Cir. 2005). Ordinarily, a defendant must exhaust his direct appeal before filing a
motion pursuant to § 2255. United States v. Vilar, 645 F.3d 543, 546 (2d Cir. 2011). However,
"an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under
§ 2255, whether or not the petitioner could have raised the claim on direct appeal." Massaro v.
United States, 538 U. S. 500, 504 (2003).

Ineffective Assistance of Counsel
The Sixth Amendment of the United States Constitution ensures that "in all criminal
prosecutions, the accused shall... have the Assistance of Counsel" for his defense. U.S. Const.
amend. VI. Although the Sixth Amendment does not expressly require that counsel be

"effective," courts have found that the right to counsel inherently implies the right to effective
assistance. As the Second Circuit has noted, the very "purpose of the Sixth Amendment
guarantee of the 'Assistance of Counsel' ... is to ensure that defendants have effective assistance
of counsel." Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (internal quotations and citations
omitted).
In Strickland, supra, the Supreme Court established a two-pronged test for deciding
ineffective assistance claims. With respect to the first prong, "the defendant must show that
counsel's representation fell below an objective standard of reasonableness." Id. at 688. In order
to satisfy the first prong, "[a] convicted defendant ... must identify the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional judgment." Id. at
690. "[A] petitioner cannot prevail on a claim of ineffective assistance merely because he
disagrees with his counsel's strategy." Singleton v. Duncan, No. 03-CV-561, 2006 WL 73734, at
14* (E.D.N.Y. Jan. 10, 2006) (citing Jones v. Barnes, 463 U.S. 745, 752 (1983)). Indeed,
"[s]trategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable." Strickland, 466 U.S. at 690. Moreover, the burden is on
the defendant to "overcome the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy." Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955) (internal quotations omitted)).
With respect to the second prong, a defendant must demonstrate "that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694. The Supreme Court defines "reasonable
probability" as "a probability sufficient to undermine confidence in the outcome." Id. Further,
"[t]he level of prejudice the defendant need demonstrate lies between prejudice that 'had some

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conceivable effect' and prejudice that 'more likely than not altered the outcome in the case."
Lindstadt v. Keani, 239 F.3d 191, 204 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 693). Even
"professionally unreasonable" errors by counsel do not "warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691.
Ultimately, "[t]he relevant inquiry focuses 'on the fundamental fairness of the proceeding whose
results are being challenged." Bien v. Smith, 546 F. 5upp. 2d 26, 51 (E.D.N.Y. 2008) (quoting
Strickland, 466 U.S. at 696).
In this case, Movant has not established the first prong of the Strickland test. Movant
argues that his attorney erred in two respects. First, Movant claims that the Government breached
its agreement not to seek an aggravating role enhancement, that his attorney could have insisted
on "specific performance," and that this would have resulted in eliminating the aggravating role
enhancement altogether. Second, Movant asserts that, instead of insisting on specific
performance, defense counsel stipulated to the two-level enhancement without Movant's
consent.
Both of these arguments are entirely inconsistent with the facts. The Government never
breached its agreement not to seek an aggravating role enhancement. Contrary to what Movant
may believe, the Government did not author the presentence report which recommended the
four-level enhancement, the Probation Department did. Sentencing Transcript, p. 4. The
Government never advocated for an aggravating role enhancement, even after AUSA Barr was
replaced by AUSA Justin D. Lerer. Transcript of Jan. 15, 2009, Proceedings, p. 4-7. Absent a
violation of the Government's promise, defense counsel had no basis for seeking specific
performance.

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Even if the Government had violated its promise, specific performance would not have
eliminated the Fatico hearing. The Court sua sponte ordered the Fatico hearing pursuant to 18
U.S.C. § 3553(a). The Government, which admitted that it had evidence to prove Movant's
leadership role, could not refuse to present evidence in support of that enhancement when
directed to do so by the Court.
In light of the Court's insistence on a Fatico hearing, Movant's attorney had only two
options: stipulate to the two-level enhancement or proceed with the Fatico hearing. Movant has
not adduced any evidence to suggest that defense counsel's advice that he stipulate to the twolevel enhancement was unreasonable. See Strickland, 466 U.S. at 689 (there is a "strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance ...."). Indeed, the decision to stipulate to the two-level enhancement rather than risk a
four-level enhancement was not only reasonable, but strategic. See Aulet v. United States, No. 01
Civ. 2046 (JSM), 2001 WL 910404 at *1 (S.D.N.Y. Aug 13, 200 1) ("it is reasonable to assume
that in negotiating a plea agreement, defense counsel made tactical choices to stipulate certain
Guideline factors in exchange for the Government's agreement not to press for a higher
Guideline range. Counsel's judgment in this regard was well within the range of tactical strategy
that is left to the professional judgment of defense counsel ...."). Counsel's strategic decision
does not constitute substandard representation.
Moreover, Movant himself made the decision to forego the Fatico hearing and stipulate
to the two-level enhancement. To be sure, Movant wrote the Court a letter prior to sentencing in
which he implied that he did not want to stipulate. Letter to Hon. Sandra L. Townes from
Robinson Naranjo-Ramirez dated June 11, 2008, p. 2. However, at sentencing, Movant expressly

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withdrew that letter and agreed to accept the two-level enhancement instead of proceeding with
the Fatico hearing:
The Court: And do you wish to go forward with a hearing or to leave this as we
have discussed on the record with a total offense level of 33?
The [Movant]: No. If you mean do I want a Fatico, no.
The Court: All right. And that includes, you understand, the two level
enhancement for role in the offense, leadership role.
The [Movant]: Yes. (Sentencing Transcript, p. 9.)
CONCLUSION

For the reasons set forth above, Movant has not adduced evidence to establish that his
trial counsel's performance was deficient in any respect. Since Movant has not made out the first
prong of the Strickland standard, the Court need not consider the second prong. Movant' s motion
to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied in its entirety.
[II) 1 I) 1 I

/s/

Sandra L. Townes

1,ANDRA

L. TOWNE
United States District Court

Dated: July 06, 2017
Brooklyn, New York

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