Valencia v. USA
Filing
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ORDER AND OPINION. Petitioner has not alleged a constitutional or jurisdictional claim that would warrant relief under 18 U.S.C. § 2255, nor has he pointed to a "fundamental defect" to trigger such relief. Therefore, his petition to va cate, set aside, or correct his sentence is denied. No hearing is necessary, as "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; Armienti v. United State s, 234 F.3d 820, 822-23 (2d Cir. 2000). The Court certifies, pursuant to 28 U.S.C.§ 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of appeal. See Cop pedge v. United States, 369 U.S. 438, 444-45 (1962). As the Petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253. (Signed by Judge Robert P. Patterson on 3/5/2012) Copies Sent By Chambers. (rjm) Modified on 3/6/2012 (rjm). Modified on 3/6/2012 (rjm).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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OSCAR DARIO VALENCIA,
11 Civ. 1221 (RPP)
09 Cr. 710 (RPP)
Petitioner,
-againstORDER & OPINION
UNITED STATES OF AMERICA,
Respondent.
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ROBERT P. PATTERSON, JR., U.S.D.J.
I. INTRODUCTION
On February 16, 2011, Petitioner Oscar Dario Valencia (“Petitioner” or “Valencia”), pro
se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Petitioner requests that his sentence be reduced to probation on the grounds that his incarceration
is a hardship on his family.
II. BACKGROUND
On July 21, 2009, an information was filed against Valencia in the instant case, charging
him with one count of conspiring to distribute and possess with the intent to distribute five
kilograms and more of mixtures and substances containing a detectable amount of cocaine in
violation of 21 U.S.C. § 841(b)(1)(A). On February 17, 2010, pursuant to a plea agreement with
the Government (the “Plea Agreement”), Valencia pleaded guilty to the lesser offense of
conspiring to distribute and possess with the intent to distribute at least 500 grams of cocaine, in
violation of 21 U.S.C. § 841(b)(1)(B). The Plea Agreement contained a stipulation that the
applicable United States Sentencing Guidelines range was 51 to 71 months’ imprisonment (the
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“Stipulated Guidelines Range”). (See Gov.’s Mem. in Opp. to Pet’r’s Mot. to Vacate (“Gov.’s
Mem.”) Ex. A at 3.) The Plea Agreement also provided that:
The parties agree that neither a downward nor an upward adjustment or departure
from the Stipulated Guidelines Range . . . is warranted. Accordingly, neither
party will seek a departure or seek any adjustment not set forth herein. Nor will
either party suggest that the Probation Department consider such a departure or
adjustment, or suggest that the Court sua sponte consider a departure or
adjustment.
*
*
*
However, the parties agree that either party may seek a sentence outside of the
Stipulated Guidelines Range, suggest that the Probation Department consider a
sentence outside of the Stipulated Guidelines Range, and suggest that the court
sua sponte consider a sentence outside of the Stipulated Guidelines Range, based
upon the factors to be considered in imposing a sentence pursuant to Title 18,
United States Code, Section 3553(a).
(Id.) Before accepting Valencia’s guilty plea, the Court conducted an allocution in full
compliance with Rule 11 of the Federal Rules of Criminal Procedure. (See Gov.’s Mem. Ex. C.)
After being satisfied that Valencia’s allocution covered each of the elements of the crime
charged, the Court accepted his guilty plea. (Id. at 19.)
On July 29, 2010, the Court held a sentencing hearing. First, the Court heard from
Valencia’s counsel, who argued for a downward variance from the Stipulated Guidelines Range
due to “extraordinary mitigating circumstances.” (Transcript of July 29, 2010 Sentencing
Hearing at 7.) Defense counsel stated that the Government’s sentencing recommendation overemphasized Valencia’s prior conviction for money laundering, and failed to acknowledge
Petitioner’s (1) successful completion of probation in that case, (2) his cooperation with the Drug
Enforcement Administration (“DEA”) in providing information to apprehend a Colombian drug
trafficker who had fled the United States to Colombia in 2008 (the “Columbian trafficker”), (3)
his actual role in the instant offense, and (4) his personal history. (Id. at 7-15.) In response, the
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Government urged the Court to balance Valencia’s cooperation against his prior criminal record,
and to impose a sentence within the Stipulated Guidelines Range. (Id. at 22.) After hearing from
both sides, the Court requested more information about the extent of Valencia’s cooperation, and
his role in aiding the Government in capturing the Columbian trafficker. (Id. at 24-25.) The
Court also requested information regarding the whereabouts of Valencia’s co-conspirator in the
instant case. (Id. at 16-17.) The Court set a new sentencing date of August 4, 2010. (Id. at 25.)
During the sentencing hearing on August 4, 2010, the Government informed the Court
that Valencia’s co-conspirator in the instance case had not yet been apprehended, and that the
DEA was in the process of trying to apprehend him based on information provided by Valencia.
(Transcript of Aug. 4, 2010 Sentencing Hearing at 3.) Furthermore, the Government informed
the Court that through Valencia’s assistance, the DEA had ultimately been able to locate the
Columbian trafficker, who was now in the process of being extradited to face charges in the
United States. (Id. at 4-5.) Petitioner’s counsel reiterated his arguments from the July 29, 2010
sentencing hearing regarding a downward variance from the Stipulated Guidelines Range. (Id. at
6-7, 10-12.) He also referenced Valencia’s steady employment history, his acceptance of the
debt on his restaurant during his divorce, the educational loans he took out for his children, and
the letters submitted to the Court by Valencia’s children. (Id. at 10-12.) After hearing from both
sides the Court inquired about Petitioner’s prior conviction for money laundering, for which
Petitioner was sentenced to three years’ probation by Judge Kaplan. (Id. at 13.) The
Government informed the Court that Judge Kaplan had put off the sentencing for over four years,
during which time Valencia “provided very substantial cooperation to the government.” (Id. at
13-14.) The Court requested a copy of the Government’s January 28, 2005 letter submitted to
Judge Kaplan pursuant to § 5K1.1 of the United States Sentencing Guidelines (the “5K1 letter”),
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in order to gain a better understanding of the nature of Valencia’s cooperation in that case. (Id.
at 17.) Specifically, the Court inquired as to whether Valencia simply aided the Government in
apprehending his co-conspirators in the money laundering case, or if he also provided
information leading to the arrest of individuals engaged in other criminal activities. (Id. at 1417.) A new sentencing date was set for August 10, 2010.
The Government was able to provide the Court with a copy of the 5K1 letter in advance
of the next sentencing date. During Valencia’s final sentencing hearing, the Court determined
that, although the 5K1 letter demonstrated that Valencia cooperated in several investigations, the
letter failed to reveal the extent to which his cooperation aided in the success of these
investigations. (Transcript of Aug. 10, 2010 Sentencing Hearing (“Tr. 8/10/10”) at 2-3.) After
taking into account Petitioner’s continued employment, his cooperation in apprehending the
Columbian trafficker, and the letters from his children, the Court sentenced Valencia to two
years’ imprisonment, five years of supervised release, and a $100 special assessment. (Id. at 3-4.)
On February 16, 2011, Valencia, pro se, filed this motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. Therein, Valencia requests “a reduction of sentence
to probation pursuant to U.S.S.G. 5H1.6.” (Pet’r’s Mot. to Vacate at 5.) As a basis for this
relief, Valencia states that “Petitioner was the sole provider for his family, and wife who doesn’t
speak English. Because of Petitioner[’s] incarceration, Petitioner[’s] wife cannot afford to
financially support his children, send them to school, and pay all the bills. Petitioner[’s] family
is suffering.” (Id.) On May 4, 2011, the Government filed a memorandum of law in opposition
to Valencia’s petition, in which it contends that Valencia’s petition should be denied because the
Court already took into account his family circumstances in deciding to impose a belowGuidelines sentence. (Gov.’s Mem. at 1.) Petitioner did not file a reply.
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III. LEGAL STANDARD
Under 28 U.S.C. § 2255, a federal prisoner seeking to vacate his sentence must establish
that “the sentence was imposed in violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral attack, . . . .” 28
U.S.C. § 2255. Where the petitioner fails to assert constitutional or jurisdictional error, the writ
of habeas corpus “will not do service for an appeal.” Stone v. Powell, 428 U.S. 465, 477 n.10
(1976) (internal quotation omitted). Nevertheless, non-constitutional and non-jurisdictional
claims that reveal “a fundamental defect which inherently results in a complete miscarriage of
justice” present “exceptional circumstances” justifying collateral relief under section 2255.
Davis v. United States, 417 U.S. 333, 346 (1974) (internal quotation omitted).
IV. DISCUSSION
Valencia’s motion does not assert a constitutional or jurisdictional error, nor does his
claim amount to a “fundamental defect which inherently results in a complete miscarriage of
justice” requiring relief under § 2255.1 Id. Rather, Valencia’s claim of hardship on his family
constitutes a plea of leniency, which is not cognizable under 28 U.S.C. § 2255. See Wright v.
United States, No. 92 Civ. 6643, 1993 WL 246229 at *1 (S.D.N.Y. June 29, 1993); Silano v.
United States, 621 F. Supp 1103, 1104 (E.D.N.Y 1985). Moreover, the Court fully considered
Valencia’s familial circumstances in arriving at a sentence which was well below the Stipulated
Guideline Range.2
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United States Sentencing Guideline § 5H1.6, entitled “Family Ties and Responsibilities (Policy Statement)” reads,
in pertinent part “[i]n sentencing a defendant . . . family ties and responsibilities are not ordinarily relevant in
determining whether a departure may be warranted.” United States Sentencing Commission, Guidelines Manual, §
5H1.6 (Nov. 2011).
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In imposing this sentence, the Court stated:
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V. CONCLUSION
Petitioner has not alleged a constitutional or jurisdictional claim that would warrant relief
under 18 U.S.C.§2255, nor has he pointed to a "fundamental defect" to trigger such relief.
Therefore, his petition to vacate, set aside, or correct his sentence is denied. No hearing is
necessary, as "the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief." 28 U.S.C.§2255; Armienti v. United States, 234 F.3d 820, 822
23 (2d Cir. 2(00).
The Court certifies, pursuant to 28 U.S.C.§ 1915(a)(3), that any appeal from this Order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of appeaL
Coppedge v. United States, 369 U.S. 438, 444-45 (1962). As the Petition makes
no substantial showing of a denial of a constitutional right, a certificate of appealability will not
issue. 28 U.S.C.§2253.
IT IS SO ORDERED.
Dated: New York, New York
March~2012
Robert P. Patterson, Jr.
U.S.DJ.
Now, bis was a difficult sentence for me, l'vir. Valencia, because for one thing you apparently are
a man who knows how to work hard and has worked hard throughout your life. You've got two
fine children. The letter from your son is a particularly touching one. I served in the military
myself and I know what sacrifice is in time of war and he undoubtedly knows what it is also.
Your daughter also wrote a fine letter. And the points that [Defense counsel] made in your behalf
were meaningful points that resulted in my varying the sentence under the 3553(a) because of the
points he raised. I didn't see that I could reduce it more because for you to go out and commit this
crime after having been involved in money laundering with narcotics proceeds before and having
cooperated you fully knew what you were doing.
(Tr. 811 011 0 at 7.)
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Copies of this Order were sent to:
Petitioner:
Oscar Dario Valencia, pro se
Reg# 13732-014
MDC Brooklyn
P.O. Box 329002
Brooklyn, NY 11232
(by mail)
The Government:
James J. Pastore, Jr.
U.S. Attorney's Office, SDNY
One S1. Andrew's Plaza
New York, NY 10007
Phone: (212) 637-2418
Fax: (212) 637-2937
(by fax)
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