Gomez v. USA
Filing
6
OPINION & ORDER:The August 6, 2012 petition for a writ of habeas corpus is denied. In addition, the Court declines to issue a certificate of appealability. Gomez has not made a substantial showing of a denial of a federal right pursuant to 28 U.S.C. § 2253(c), and appellate review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Court also finds pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 3/28/2013) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
:
SOTERO GOMEZ,
:
Petitioner,
:
:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
:
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12 Civ. 6122 (DLC)
08 Cr. 429-04
OPINION & ORDER
APPEARANCES:
For the petitioner:
Sotero Gomez
Reg #91525054
Low Security Correctional Institution
P.O. Box 1000
White Deer, PA 17887
For the respondent:
Rachel P. Kovner
Jessica Ortiz
U.S. Attorney’s Office, Southern District of New York
One St. Andrew’s Plaza
New York, NY 10007
DENISE COTE, District Judge:
On August 6, 2012, Sotero Gomez (“Gomez”) filed this timely
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2255.
Gomez had entered a plea of guilty to participating in
a narcotics conspiracy in violation of 21 U.S.C. §§ 846 and
841(b)(1)(B).
He was sentenced principally to 240 months’
imprisonment.
The conviction was affirmed on appeal.
In this petition, Gomez contends that his attorney was
ineffective when providing him with advice in connection with
the entry of his plea and again on appeal, and that the sentence
was unreasonable.
Among other things, Gomez asserts that if
properly advised and appropriately sentenced, he should have
received a sentence of less than ten years’ imprisonment.
For
the reasons stated below, the petition is denied.
BACKGROUND
On May 15, 2008, Gomez was indicted in two counts with
conspiring to distribute or possess with intent to distribute
one kilogram or more of heroin, and with possession of a firearm
in furtherance of that crime.
The first count carried a
mandatory minimum term of imprisonment of ten years; the second
count carried a mandatory consecutive term of imprisonment of
five years.
The defendant was arrested in the Dominican
Republic and extradited to the United States, arriving in the
custody of the Bureau of Prisons on April 15, 2010.
At a conference of June 25, 2010, trial was set for
November 29, 2010.
On October 25, 2010, Gomez entered a plea of
guilty pursuant to a plea agreement with the Government
(“Agreement”).
He pleaded guilty to a lesser included offense
within Count One, specifically to conspiring to distribute or
possess with intent to distribute 1,000 grams or more of heroin
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in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B).
That plea
carried a mandatory minimum sentence of five years’ imprisonment
and a maximum sentence of 40 years’ imprisonment.
In the Agreement, the parties calculated the sentencing
guidelines range associated with the crime to which Gomez
pleaded guilty as 292 to 365 months’ imprisonment based on an
Offense Level of 40 and a Criminal History Category of I.
The
Offense Level of 40 was derived from a base offense level of 38,
for the defendant’s involvement in a drug conspiracy involving
over 30 kilograms of heroin; an adjustment of 2 levels for
possession of firearms in connection with the Count One drug
conspiracy; an adjustment of 3 levels for the defendant’s role
as a manager; and a 3 level reduction for a timely acceptance of
responsibility.
While the parties agreed that a sentence within
the stipulated range would be “reasonable”, and that they would
not seek a departure from that range, they reserved the right to
seek a non-guidelines sentence based upon the factors set forth
in Section 3553(a).
The defendant also agreed that he would not
“file a direct appeal, nor litigate under Title 28, United
States Code, Section 2255 . . . any sentence within or below the
Stipulated Guidelines Range set forth above (292 to 365 months’
imprisonment).”
During his plea allocution, the defendant was advised of
his rights, informed of the elements of the crime charged in
3
Count One, advised of the penalties that applied to Count One as
charged in the Indictment and also of the penalties for the
lesser included offense to which he was pleading guilty.
The
defendant identified the Agreement, explained that he had read
it and discussed it with his attorney before signing it, and
acknowledged the stipulated guidelines range and his waiver of
appellate rights.
He reported that he understood that the
Government had agreed to accept a plea to the lesser included
offense, which carried a lower mandatory minimum term of
imprisonment, among other things.
He also acknowledged that, by
executing the Agreement, he had agreed to “give up [his] right
to appeal, challenge or litigate [his] sentence so long as I
[the Court] don’t sentence you to more than 365 months in
prison.”
Gomez then admitted that he had conspired with others
to sell 100 grams or more of heroin in the Bronx from 2004 to
2005.
The Presentence Report (“PSR”) also calculated the
defendant’s guidelines range as 292 to 365 months; it
recommended a sentence of 292 months’ imprisonment.
The
defendant presented two sentencing submissions to the Court,
dated January 21 and 24.
He denied carrying a gun “on a routine
basis” but did not take issue with the adjustment to the
sentencing guidelines calculation based on possession of a
firearm.
4
At the sentencing proceeding on February 4, 2011, the Court
noted that the parties’ Agreement and the PSR both calculated
the guidelines range as 292 to 365 months’ imprisonment, which
included adjustments for role in the offense and for firearms.
The Court added, “while there are discussions in the
[defendant’s sentencing] submissions regarding firearms and
role, I don’t understand there to be any objection to the
calculation of the sentencing guidelines range.”
Defense
counsel agreed, adding “We dispute that defendant possessed a
gun, but [not] that he knew that there were guns.”
then inquired:
The Court
“you don’t dispute that they are properly
attributed to the defendant pursuant to the guidelines as
calculated in the guideline stipulation and the presentence
report?”
Defense counsel confirmed that the Court was correctly
characterizing the defendant’s position.
The Court then
observed that it had “reviewed the factual submissions in this
regard and find that those calculations are appropriate and
adopt them.”
The Court next observed that it was incumbent upon the
Court to consider all of the factors under Section 3553(a) to
arrive at a “reasonable” sentence.
The Court summarized the
chief arguments made by Gomez for a non-guidelines sentence,
including his close connection to family members and his
community in the Dominican Republic and the fact that he
5
committed no acts of violence in connection with the drug
conspiracy, although he had not disputed the importance of
firearms to the conspiracy’s operations.
Defense counsel emphasized that Gomez had not committed any
criminal act for the first thirty years of his life, but only
came to work in his brother’s drug business after he found
himself on the verge of losing his home.
Gomez started at the
lowest rung of the enterprise and travelled to New York from the
Dominican Republic periodically over the course of three years
to assist his brother.
Over time, Gomez developed his own
customers in New Jersey to whom he sold drugs and supervised
people in the drug business.
After the Government made arrests
of members of the organization in 2005, Gomez stayed in the
Dominican Republic and did not reenter the drug business.
Defense counsel argued that Gomez’s strong connections to his
family and community and decision not to reenter the drug
business after 2005 and to change his life justified a nonguidelines sentence.
The defendant spoke of his religious faith
and repentance, among other things.
The Court principally imposed a sentence of 240 months’
imprisonment, which was 52 months below the sentencing
guidelines range.
In imposing sentence, the Court observed that
the defendant would not have ceased his participation in the
drug business without the arrest of co-conspirators, but that
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there was no evidence that the defendant had reentered the drug
trade in the years since those arrests.
Defense counsel on appeal filed an Anders brief on behalf
of Gomez.
The Court of Appeals granted the Government’s motion
for dismissal of the appeal on May 1, 2012.
DISCUSSION
Under United States v. Booker, 543 U.S. 220, 260-61 (2005),
a sentence can be challenged as unreasonable on either
substantive or procedural grounds.
F.3d 103, 114 (2d Cir. 2005).
United States v. Crosby, 397
A sentence is substantively
unreasonable “only in exceptional cases where the trial court’s
decision ‘cannot be located within the range of permissible
decisions.’”
United States v. Cavera, 550 F.3d 180, 190 (2d
Cir. 2008) (en banc) (quoting United States v. Rigas, 490 F.3d
208, 238 (2d Cir. 2007)).
A sentence may be procedurally
unreasonable when a district court “does not consider the
§ 3553(a) factors, or rests its sentence on a clearly erroneous
finding of fact.”
Cavera, 550 F.3d at 190.
To prevail on an ineffective assistance of counsel claim, a
petitioner must show (1) that his attorney’s performance fell
below an objective standard of reasonableness, and (2) that he
suffered prejudice as a result.
Strickland v. Washington, 466
U.S. 668, 687-88 (1984); Hill v. Lockhart, 474 U.S. 52, 58
7
(1984).
To establish deficient performance, a petitioner must
overcome the “strong presumption that counsel’s representation
was within the wide range of reasonable professional
assistance.”
Harrington v. Richter, 131 S. Ct. 770, 787 (2011).
This requires showing that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.”
U.S. at 687).
Id. (quoting Strickland, 466
To establish prejudice, a petitioner must show
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.
In this context,
establishing prejudice requires that a petitioner “demonstrate
‘a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going
to trial.’”
Premo v. Moore, 131 S. Ct. 733, 743 (2011) (quoting
Hill, 474 U.S. at 59).
Gomez contends that he is entitled to be re-sentenced
because the Court failed (1) to consider several mitigating
factors, which he does not identify in his petition, and (2) to
articulate an individualized rationale for the sentence.
He
next points out that the plea allocution did not contain a
factual basis for finding that he possessed a firearm to advance
or promote drug trafficking.
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Gomez also asserts that his attorney provided ineffective
assistance of counsel when he coerced Gomez to enter the
Agreement with the Government in order for the defendant to be
eligible to receive a lesser sentence.
Gomez asserts that but
for that flawed advice, there was a reasonable probability that
his sentence would have been ten years or less.
In connection
with this argument, Gomez calculates that his guidelines range
would have been 87 to 108 months’ imprisonment if the Court had
included a three point reduction for acceptance of
responsibility.
In his reply papers, Gomez calculates that the
properly calculated guidelines range is even lower, and should
have been 70 to 87 months’ imprisonment.
Gomez may also be
presenting an argument that his attorney was ineffective for
failing to advise him that the Agreement should not have
included a sentencing guidelines adjustment for possession of a
firearm in furtherance of a narcotics conspiracy.
This argument
is premised on Gomez’ belief that the adjustment required an
admission during his plea allocution that he so possessed a
weapon.
Gomez also asserts that the attorney who represented
him on the appeal from his conviction was ineffective for
failing to attack his plea, specifically its failure to include
the factual nexus linking the possession of the firearm to the
drug offense.
9
None of the issues raised by Gomez in this petition require
that his conviction be vacated.
To the extent that Gomez
challenges the sentencing proceeding or the application of an
adjustment to his sentencing guidelines calculation based on
possession of a firearm, those issues were available to Gomez to
raise on direct appeal and may not be raised for the first time
in this petition.
See Bousley v. United States, 523 U.S. 614,
622 (1998); United States v. Pipitone, 67 F.3d 34, 39 (2d Cir.
1995).
In addition, in his Agreement Gomez waived his right to
challenge his sentence so long as he did not receive a sentence
greater than 365 months’ imprisonment.
presumptively enforceable.
Such an agreement is
United States v. Arevalo, 628 F.3d
93, 98(2d Cir. 2010); Garcia–Santos v. United States, 273 F.3d
506, 509 (2d Cir. 2001) (per curiam).
Nonetheless, a claim of
ineffective assistance of counsel will survive a waiver if the
claim relates to advice counsel gave with regard to entering the
plea or the process by which the defendant agreed to plead
guilty.
See Parisi v. United States, 529 F.3d 134, 138–39 (2d
Cir. 2008).
Thus, a waiver of the right to challenge a sentence
will not be valid where “the waiver was not made knowingly,
voluntarily, and competently.”
United States v. Gomez–Perez,
215 F.3d 315, 319 (2d Cir. 2000).
10
In determining that a waiver of the right to file a § 2255
petition was knowing and voluntary courts have considered
factors such as: (1) whether the petitioner signed the plea
agreement; (2) whether the petitioner stated during the plea
colloquy that he had read and understood the plea agreement; (3)
whether the petitioner, having been advised of the right to
appeal, failed to take a direct appeal from the sentence; and
(4) whether the petitioner failed to assert in his § 2255
petition that he did not understand the plea agreement's waiver
clause.
Garcia–Santos, 273 F.3d at 508.
Gomez signed his plea
agreement, and indicated at his plea allocution that he had read
it and discussed it with his attorney.
He also indicated that
he understood that he had agreed to waive his right to challenge
his sentence provided it did not exceed 365 months’
imprisonment.
Gomez’s waiver thus constitutes an independent
ground on which the challenges he brings in this petition may be
denied.
Moreover, Gomez is wrong in believing that the adjustment
to his sentencing guidelines range required any admission at the
time he entered his plea of guilty.
It was not necessary for
the plea allocution to include admissions regarding a possession
of weapons in furtherance of a drug conspiracy.
A plea
allocution is addressed to the elements of the offense, and
there is no suggestion that the allocution here, which was
11
addressed to the crime of participating in a narcotics
conspiracy, did not adequately address each of those elements. 1
To the extent that Gomez complains that his appellate
counsel was ineffective for failing to challenge the calculation
of his sentencing guidelines range or the reasonableness of his
sentence, that claim must also be denied.
the calculation of the guidelines.
There was no error in
An adjustment for possession
of a firearm in furtherance of a drug conspiracy is appropriate
unless “it is clearly improbable that the weapon was connected
with the offense.”
United States v. Smith, 215 F.3d 237, 240
(2d Cir. 2000) (quoting U.S.S.G. § 2D1.1, cmt. n.3).
Gomez
worked at the organization’s mills and was a supervisor of
workers at six different mills.
It is not disputed that
firearms were present at the mills to protect their operations.
See United States v. Schaper, 903 F.2d 891, 896 (2d Cir. 1990)
(where defendant used house to store drugs, “[t]he presence of a
weapon on [defendant’s] premises cannot be said to be unrelated
to the ongoing narcotics trade”); United States v. Soto, 959
F.2d 1181, 1186-87 (2d Cir. 1992) (enhancement properly applied
even where defendant lacked personal knowledge of firearms’
existence).
Indeed, the Court confirmed at the sentencing
1
It should be noted that the Agreement included a sentencing
guidelines calculation that incorporated the firearms’
adjustment and Gomez acknowledged at his plea that he had read
the Agreement and understood it.
12
proceeding that the defendant was not challenging the
application of the firearms adjustment to the offense level
calculation.
Similarly, the defendant has not shown any procedural or
substantive irregularity in connection with the sentencing
proceeding.
The Court considered the defendant’s arguments for
leniency and, after consideration of the Section 3553(a)
factors, imposed a below-guidelines sentence.
The transcript of
the proceeding reflects an individualized examination of the
defendant’s circumstances.
The remaining issue raised by Gomez is his claim that his
attorney was ineffective in advising him to enter the Agreement.
His discussion of the deficiencies in his attorney’s performance
can be construed in two ways.
He appears to be arguing that he
would have received a sentence below ten years but for the
Agreement or that the Agreement erred in including an adjustment
for possession of firearms when he had not admitted to
possessing firearms during his plea allocution.
Each of these
arguments reflects a misunderstanding.
First, Gomez was facing a mandatory minimum sentence of
fifteen years’ imprisonment if convicted on the offenses with
which he was charged:
ten years on the drug conspiracy charge
and a consecutive five years on the firearms charge.
Through
the Agreement, the Government agreed to accept a plea to a
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lesser included offense that carried a five year mandatory
minimum term of imprisonment in full satisfaction of the
Indictment.
Thus, because Gomez entered the Agreement and a
plea to the lesser included offense, the Court was given greater
flexibility in sentencing Gomez.
All of this was explained to
Gomez at the time of his plea allocution, and he confirmed under
oath that he understood both the sentencing range that applied
to the crimes charged in the Indictment and to the lesser
included offense.
During the allocution, the defendant also
acknowledged familiarity with the Agreement’s calculation of a
sentencing guidelines range of 292 to 365 months.
When the
Court again recited that range during the sentencing proceeding,
the defendant did not object or indicate any confusion.
In sum,
there is no basis to find that defense counsel misled the
defendant about his sentencing exposure.
Second, as already explained, the sentencing guidelines
adjustment for possession of firearms did not require an
admission during the plea allocution.
Thus, there could have
been no failure by his counsel in not acting to prevent the
inclusion of this adjustment in the Agreement’s sentencing
guidelines calculation.
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CONCLUSION
The August 6, 2012 petition for a writ of habeas corpus is
denied.
In addition, the Court declines to issue a certificate
of appealability.
Gomez has not made a substantial showing of a
denial of a federal right pursuant to 28 U.S.C. § 2253(c), and
appellate review is therefore not warranted.
413 F.3d 192, 195 (2d Cir. 2005).
Love v. McCray,
The Court also finds pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith.
438, 445 (1962).
Coppedge v. United States, 369 U.S.
The Clerk of Court shall close the case.
SO ORDERED:
Dated:
New York, New York
March 28, 2013
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Copies mailed to:
Sotero Gomez
Reg #91525054
Low Security Correctional Institution
P.O. Box 1000
White Deer, PA 17887
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