Alvarez-Estevez v. United States of America

Filing 9

OPINION AND ORDER re: 4 MOTION TO ADOPT MOVANT'S 28:2255 MOTION AS A RESULT OF THE GOVERNMENT'S FAILURE TO RESPOND TO THE COURT'S ORDER filed by Jorge Alvarez-Estevez. The Court has considered all of the Petitioner's argu ments and has determined that they are without merit. There is no need for the requested evidentiary hearing because "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(b). For the reasons described above, the Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied. The Clerk is respectfully directed to close the case and enter judgment for the r espondent. Petitioner has not made a substantial showing of the denial of a constitutional right and, therefore, a certificate of appealability shall not issue. See 28 U.S.C. § 2253(c). 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 an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge John F. Keenan on 2/03/2016) (ama); [*** NOTE: Also docketed in related Criminal Case 13-Cr-380(JFK), Doc.#88. ***] Modified on 2/3/2016 (bw).

Case 1:09-md-02013-PAC Document 57

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
JORGE ALVAREZ-ESTEVEZ,
:
UNITED STATES DISTRICT COURT
:
SOUTHERN DISTRICT Petitioner,
OF NEW YORK
:
-----------------------------------------------------------x
:
In re FANNIE MAE 2008 SECURITIES
::
LITIGATION
-against::
::
UNITED STATES OF AMERICA.
::
-----------------------------------------------------------x
:
Respondent.
:
-----------------------------------X

Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 02/03/2016
Nos. 15 Civ. 971 (JFK)
08 Civ. 7831 (PAC) (JFK)
13 Cr. 380
09 MD 2013 (PAC)
OPINION & ORDER
OPINION & ORDER

APPEARANCES
HONORABLE PAUL A. CROTTY, United States District Judge:
FOR PETITIONER JORGE ALVAREZ-ESTEVEZ
Pro se
BACKGROUND1
FOR RESPONDENT UNITED STATES OF AMERICA
Preet early years ofEsq.
The Bharara, this decade saw a boom in home financing which was fueled, among
Russell Capone, Esq.
other things, by low interest rates and lax credit conditions. New lending instruments, such as
JOHN F. KEENAN, United States District Judge:
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
Petitioner Jorge Alvarez-Estevez (the “Petitioner” or
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
“Alvarez-Estevez”), an inmate of the Moshannon Valley
assumption that the market would continue to rise and that refinancing options would always be
Correctional Center in Philipsburg, Pennsylvania, brings this
available in the future. Lending discipline was lacking in the system. Mortgage originators did
pro se petition pursuant to 28 U.S.C. § 2255 to vacate, set
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
aside, or correct his prison sentence. The Petitioner asserts
originators sold their loans into the secondary mortgage market, often as securitized packages
that he was denied effective assistance of counsel because his
known advised him to accept a plea agreement that, allegedly
counsel as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
But to the Petitioner, In 2006, the demand for housing role
unbeknownstthen the housing bubble burst. included a supervisory dropped abruptly
and home prices began to fall. In light of the Guidelines market, (“U.S.S.G.”
enhancement under U.S. Sentencing changing housingManualbanks modified their
or lending practices and§ 3B1.1(c). to refinance reasons stated below, the
“Guidelines”) became unwilling For the home mortgages without refinancing.
petition is denied.
1

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

1
1

I.
A.

Background

The Petitioner’s Arrest and Indictment

Between January 2012 and May 7, 2013, the Petitioner and
three other individuals engaged in a conspiracy to distribute
heroin. (See Indictment ¶¶ 1-2, United States v. Baez, No. 13
Cr. 380 (May 21, 2013), ECF No. 10.)

On May 7, 2013, agents

arrested the Petitioner and his co-conspirators in the
Petitioner’s Forest Hills, Queens residence, where they
recovered approximately 300 grams of heroin and assorted
paraphernalia used to package the heroin for sale. (See Mot. to
Reopen Mot. at 1-2, Baez, No. 13 Cr. 380 (Sept. 8, 2015), ECF
No. 79; Sosinsky Aff. 4-5; Opp’n to Pet’r’s 28 U.S.C. § 2255
Pet. (“Opp’n”) 2.)
On May 21, 2013, the Petitioner and his co-conspirators
were indicted under 21 U.S.C. § 841(b)(1)(A), which imposes a
mandatory minimum sentence of 10 years’ imprisonment for
violations involving 1 kilogram or more of a mixture or
substance containing a detectable amount of heroin. (See
Indictment ¶ 3, Baez, No. 13 Cr. 380 (May 21, 2013), ECF No. 10;
21 U.S.C. § 841(b)(1)(A).)

From the time of the Petitioner’s

original presentment through his sentencing, Frederick L.
Sosinsky (“Sosinsky”) represented him. (Sosinsky Aff. 1.)

2

B.

Plea Negotiations and Agreement

Initially, the Government expressed reluctance in offering
the Petitioner any sort of plea bargain because of its belief it
had strong evidence of the Petitioner’s role as a supervisor in
the conspiracy. (Id. at 6-7.)

Over time, however, the

Government did agree to accept a plea to a violation of
§ 841(b)(1)(B), which imposes a mandatory minimum sentence of 5
years’ imprisonment for violations involving 100 grams or more
of a mixture or substance containing a detectable amount of
heroin. (Id. at 7; 21 U.S.C. § 841(b)(1)(B).)
Sosinsky continued to press for a plea that would not
require a mandatory minimum sentence and, after meeting with the
Government again in November 2013, convinced the Government to
agree to accept a plea to a violation of § 841(b)(1)(C), which
does not impose a mandatory minimum sentence.

The Government

conditioned its § 841(b)(1)(C) plea offer as follows:

(1) the

Petitioner must agree to a recommended Guidelines range of 51-71
months based on his offense level, which included a two-point
enhancement for the Petitioner’s supervisory role; (2) the
Petitioner’s co-defendant, Vismar Baez, must accept the same
plea; and (3) the two co-defendants must accept their pleas by
December 6, 2013. (Id. at 8.)
Throughout the course of his negotiations with the
Government, Sosinsky discussed the developments with the
3

Petitioner. (Sosinsky Aff. 8-9.)

The Petitioner is a lawful

permanent resident originally from the Dominican Republic who
speaks Spanish natively and has some difficulty understanding
English. (Presentence Investigation Report ¶¶ 39-40, 46, Baez,
13 Cr. 380 (May 2, 2014).)

On October 8, 2013, the Petitioner

emailed Sosinsky requesting that Sosinsky provide him with a
translator because he believed that both he and Sosinsky
experienced some difficulty communicating with one another.
(Alvarez-Estevez Aff. Ex. 5.)

Sosinsky acknowledges that he

communicated with his client “both with and without the services
of a Spanish interpreter” because the Petitioner “speaks, reads
and writes English fairly well and [Sosinsky] speak[s] and
read[s] Spanish fairly well.” (Sosinsky Aff. 18.)

Sosinsky and

the Petitioner agree that an interpreter was utilized during
meetings at the Courthouse and, at least, at one meeting with
co-defendant Baez and his counsel where the § 841(b)(1)(C) plea
agreement was discussed. (See Sosinsky Aff. 20-21; AlvarezEstevez Aff. 10-11.)

Sosinsky also communicated with members of

the Petitioner’s family, who understand English and helped to
translate for the Petitioner. (See Sosinsky Aff. 8, 10-11;
Alvarez-Estevez Aff. 10, 12.)
On December 12, 2013, the Petitioner pleaded guilty to the
indictment’s lesser included offense under § 841(b)(1)(C).

In

the written plea agreement, the Petitioner and the Government
4

agreed that his base offense level was 26 under U.S.S.G.
§ 2D1.1(c)(7). (Sosinsky Aff. Ex. A.)

The Petitioner and the

Government agreed that a two-point enhancement was warranted
under U.S.S.G. § 3B1.1(c) for the Petitioner’s role as an
organizer, leader, manager, or supervisor in criminal activity
and that two reductions were warranted:

one for his acceptance

of responsibility (two points under U.S.S.G. § 3E1.1(a)) and one
for his timely notice of intention to enter a plea (one point
under § 3E1.1(b)). (Id.)

This resulted in an offense level of

25, which, combined with his criminal history category of I,
corresponds to a recommended Guidelines range of 57-71 months.
(See id.; U.S. SENTENCING GUIDELINES MANUAL tbl.)

The Petitioner also

agreed that he would not
file a direct appeal; nor bring a collateral
challenge, including but not limited to an
application under Title 28, United States
Code, Section 2255 and/or Section 2241; nor
seek a sentence modification pursuant to Title
18, United States Code, Section 3582(c), of
any sentence within or below the Stipulated
Guidelines Range of 57 to 71 months’
imprisonment . . . .
(Id.)
At his plea hearing, with the assistance of an official
Spanish-language interpreter, the Petitioner stated that, before
signing the agreement, his counsel explained it to him, he fully
understood the agreement, and he did not have any questions
about it. (Hr’g Tr. 8:10-16, Dec. 12, 2013.)

5

The Petitioner

also stated that he was satisfied with his counsel’s
representation thus far and that he had not been induced to
offer a plea of guilty by reason of any promise or statement to
the effect that he would get leniency or special treatment. (Id.
at 8:17-20; 15:4-8.)

The Petitioner expressed his understanding

that, at his agreed offense level and criminal history category,
a sentence under the Guidelines would be between 57 and 71
months, but that the maximum punishment for his crime was 20
years’ imprisonment. (Id. at 9:5-8; 11:13-18.)

He also

expressed his understanding that he had agreed not to directly
appeal or collaterally challenge his sentence if it was within
or lower than the Guidelines’ recommended sentence. (Id. at
13:5-13.)

This Court accepted his plea.
C.

The Petitioner’s Sentencing

On May 9, 2014, the Petitioner appeared for sentencing.
Again, an official Spanish-language interpreter was present and
translated for the Petitioner. (Hr’g Tr. 3:2-5, May 9, 2014).
Sosinsky stated that he had read the presentence report, and he
reviewed it with the Petitioner and had it translated for him.
(Id. at 2:18-25.)

Sosinsky also requested a two-point reduction

in the Petitioner’s sentence based on the then-pending Amendment
782 to the Guidelines, which reduces the Guidelines applicable
to drug trafficking offenses by two points. (Id. at 3:6-4:7.)
The Government opposed the application of the amendment based
6

solely on the Petitioner’s supervisory role in the conspiracy.
(Id. at 4:21-24; 11:15-12:12.)

There was no objection to the

fact that the Petitioner engaged in a supervisory role in the
conspiracy.

The Petitioner was sentenced to 48 months, which is

below the recommended range of 57-71 months.
On December 10, 2014, after Amendment 782 became effective,
the Petitioner applied pro se for a sentence reduction.

This

Court granted the motion and the Petitioner is currently
sentenced to 46 months. (See Order Reducing Sentence, Baez, 13
Cr. 380 (Aug. 12, 2015), ECF No. 73.)

The Petitioner did not

otherwise appeal this sentence.
D.

The Petitioner’s § 2255 Motion

On February 6, 2015, the Petitioner filed the instant
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255.

The Petitioner asserts that he was denied his

constitutional right to effective assistance of counsel because
his counsel advised him to accept a plea agreement that
recommended a sentence of 57-71 months based in part on a
supervisory role enhancement under U.S.S.G. § 3B1.1(c). (See
Mem. in Support of Pet’r’s 28 U.S.C. § 2255 Pet. (“Mem.”) 2-4.)
The Petitioner asserts that his counsel did not advise him that
the plea agreement included this enhancement and that, when the
Petitioner eventually learned of it from his co-defendants, he

7

confronted his counsel, who promised to have it removed. (See
Mem. 2-4; Alvarez-Estevez Aff. 8-11.)
In addition to his memorandum in support of his petition
and his reply memorandum, the Petitioner filed fourteen exhibits
and his own affidavit.

The Petitioner’s exhibits include post-

plea correspondence with his attorney (except for one email
cited supra), post-sentencing correspondence with the warden of
the Manhattan Detention Center and First Department Departmental
Disciplinary Committee, and affidavits from each of his codefendants and his sister. (See Mem. Ex. A-G; Alvarez-Estevez
Aff. Ex. 1-4, 6-7.)
Each of the affidavits from the Petitioner’s co-defendants
assert that he was not a leader in the conspiracy. (See Mem. Ex.
A; Alvarez-Estevez Aff. Ex. 4.)

Additionally, the Petitioner’s

co-defendant Baez both contradicts and corroborates the
Petitioner’s version of events.

Baez states that at a meeting

in November 2013, the Petitioner’s “attorney told him that the
prosecutor is adding in the plea offer that Jorge AlvarezEstevez is an organizer, leader, manager, or supervisor of the
criminal activities charged in the indictment.” (Mem. Ex. A.)
This contradicts the Petitioner’s allegation that he learned
about the enhancement from his co-defendants.

Consistent with

the Petitioner’s allegations, however, Baez does state that the
Petitioner’s “attorney promised that he will make sure that the
8

role as an organizer, leader, manager, or supervisor is removed
from the plea offer . . . .” (Id.)
Based on these allegations, the Petitioner claims that he
received ineffective assistance of counsel and he asks for his
sentence to be corrected, vacated, or set aside.
The Government filed its opposition to the Petitioner’s
motion three weeks late, on May 11, 2015.

On May 12, 2015, the

Petitioner moved this Court to adopt his motion in light of the
Government’s late response.

Without ruling on the merits of the

Petitioner’s request, this Court ordered the Petitioner to file
his reply because default cannot be obtained in a habeas
proceeding brought against the United States “unless the
claimant first establishes his claim or right to relief by
evidence satisfactory to the court.” (See Order, Alvarez-Estevez
v. United States, No. 15 Civ. 971 (May 15, 2015), ECF No. 5
(quoting Bermudez v. Reid, 733 F.2d 18, 21-22 (2d Cir. 1984)).
On September 22, 2015, this Court ordered the Petitioner’s
counsel to provide sworn testimony addressing the allegations of
ineffective assistance of counsel. (See Order, Id. (Sept. 22,
2015), ECF No. 8.)
Sosinsky’s affidavit rebuts the assertions the Petitioner
makes in his motion.

Sosinsky states that, after receiving the

Government’s offer of a plea under § 841(b)(1)(C), he reviewed
the terms with the Petitioner and his family on multiple
9

occasions.

Sosinsky states that he first contacted the

Petitioner’s girlfriend—whom the Petitioner had encouraged
Sosinsky to contact—and informed her of the plea conditions.
(Sosinsky Aff. 8-9.)
He then enclosed the plea agreement in a letter to the
Petitioner dated November 18, 2013, which explained to the
Petitioner that the Government conditioned acceptance of his
plea, in part, on accepting a recommended Guidelines range of
57-71 months. (Id. Ex. A.)
Thereafter, Sosinsky met with the Petitioner to review the
terms of the plea agreement. (Sosinsky Aff. 10.)

At this

meeting, the Petitioner expressed his anger that he would have
to accept the same agreement as his co-defendant Baez. (Id.)
Following this meeting, Sosinsky received an email from the
Petitioner’s sister excusing the Petitioner’s anger and
explaining that “[a]ll [the Petitioner] wants is to be sure that
[the plea] is the best he can get[] . . . .

I trust you won’t

let my brother spend 57 month[s] in jail.” (Sosinsky Aff. Ex.
B.)

Sosinsky advised the Petitioner’s sister that he should not

be preoccupied by his co-defendant’s sentence and, instead, “do
what is best for him[self].” (Id.)

He also explained that the

recommended range of 57-71 months was not mandatory and that he
would ask for a sentence below 57 months. (Id.)

10

Sosinsky met with the Petitioner a second time to review
the plea terms, this time accompanied by co-defendant Baez, his
counsel, and a Spanish interpreter. (Sosinsky Aff. 11-12.)

Both

attorneys expressed to their clients their opinion that the plea
terms were the most favorable disposition available. (Id. at
12.)

The Petitioner again expressed his anger that he would

have to accept the same plea as his co-defendant Baez. (Id. at
13.)
Sosinsky followed up with the Petitioner again.

Sosinsky

states that the Petitioner remained focused on a legally
irrelevant claim—that the confidential informant was Baez’s
customer. (Id.)

Sosinsky states that he advised the Petitioner

that the Government’s offer was a “take-it-or-leave-it”
proposition, but the best opportunity to argue for a sentence of
less than five years. (Id.)

After this meeting, Sosinsky states

that the Petitioner agreed to accept the plea offer. (Id. at 1314.)
Sosinsky and the Petitioner met once again on the date of
his plea hearing.

Sosinsky states that, again accompanied by an

interpreter, he reviewed the terms of the plea agreement, the
plea colloquy, and the Petitioner’s factual statement of guilt
with the Petitioner. (Id. at 14.)
Sosinsky denies ever promising to the Petitioner that he
would have the two-point enhancement removed.
11

He explains that

the Petitioner repeatedly objected to the Government’s statement
that the Petitioner interacted directly with its confidential
witness. (Id. 9-10, 13.)

Sosinsky states that he advised the

Petitioner that, if the Petitioner pleaded guilty, he would
raise the objection with the Probation department and/or this
Court. (Id. at 13-14.)

Sosinsky raised this objection to the

presentence report with the Probation Department and noted it on
the record at the sentencing hearing. (See Presentence Report
15, Baez, 13 Cr. 380 (May 8, 2014) (“The defense attorney
submitted objections . . . that the defendant denied directly
giving drugs to the [confidential witness].
been corrected.

The face sheet has

A footnote has been added to paragraph 11b.”);

Hr’g Tr. 17:23-18:20, May 9, 2014.)
Even though Sosinsky objected to this allegedly erroneous
fact, he states that the Petitioner was aware that it did not
eliminate the evidence of the Petitioner’s supervisory role.
Sosinsky explains that he discussed the two-point enhancement
with the Petitioner expressly and that the Petitioner
well knew from our discussions . . . that the
managerial role adjustment in question was not
based upon his dealings with [the confidential
witness] alone, or upon his actions on the
date of his arrest, but upon his alleged role
more generally in ‘running the tables’ on
other instances in which drugs were prepared
for distribution to other customers.
(Id. at 10 n.6.)

12

II.

Applicable Law

Mindful of the Petitioner’s difficulty with English and his
status as a pro se litigant, this Court construes his arguments
liberally and interprets them to raise the strongest arguments
that they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (per curiam).
Section 2255 permits a federal prisoner the right to
challenge his sentence on the ground that “the sentence was
imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a).

Because the Sixth Amendment

provides criminal defendants with the right to effective
assistance of counsel, ineffective assistance of counsel is a
basis for relief under § 2255. See Morales v. United States, 635
F.3d 39, 42-43 (2d Cir. 2011).

To prove ineffective assistance

of counsel, a petitioner must satisfy the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668, 687-89 (1984).
Where, as here, a petitioner has chosen to accept a plea
agreement rather than proceed to trial, the Strickland test
remains the applicable test. See Hill v. Lockhart, 474 U.S. 52,
58-59 (1985).
Strickland’s first prong requires the petitioner to show
that his counsel’s performance was deficient by demonstrating
that it fell below an objective standard of reasonableness.
Strickland, 466 U.S. at 687-88.

This objective standard of
13

reasonableness is measured under prevailing professional norms.
Id. at 688.
Strickland’s second prong requires the petitioner to show
that his counsel’s deficient performance prejudiced the defense.
Id. at 687.

This requires the petitioner to show that there is

a reasonable probability that, but for his counsel’s
unprofessional errors, the result of the proceeding would have
been different. Id. at 694.

The Strickland Court defined

“reasonable probability” as “a probability sufficient to
undermine confidence in the outcome.” Id.

In the case of a plea

agreement, “the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill,
474 U.S. at 59.
III.

Discussion

As a preliminary matter, a prisoner may waive his right to
collaterally attack his sentence as part of his plea agreement,
if he does so knowingly and voluntarily. See United States v.
Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004).
The Petitioner’s written plea agreement and his response to
this Court’s questioning during his plea hearing suggest that he
understood that he forfeited his right to directly appeal or
collaterally attack his sentence if it fell within or below the
range of 57-71 months.

However, because the Government did not
14

raise this procedural bar in its opposition, see Alnutt v.
United States, 588 F. App’x 45, 45-46 (2d Cir. 2014)
(recognizing that a defense of collateral-attack waiver can be
forfeited), and because this Court construes the Petitioner’s
pro se arguments to raise the strongest arguments suggested—
which, here, would be that “the very product of the alleged
ineffectiveness cannot fairly be used to bar a claim of
ineffective assistance of counsel,” United States v. Hernandez,
242 F.3d 110, 114 (2d Cir. 2001) (internal quotation marks
omitted)—the Court will consider the merits of the Petitioner’s
ineffective assistance of counsel claim despite the likelihood
that he waived his right to bring this motion altogether.
A. The Petitioner Has Not Shown that His Counsel’s
Representation Fell Below an Objective Standard of
Reasonableness
The Petitioner’s ineffective assistance of counsel claim
fails both Strickland prongs.

First, the Petitioner has

produced no evidence to suggest that his counsel’s
representation fell below an objective standard of
reasonableness.
The record demonstrates that, with the assistance of a
Spanish interpreter, the Petitioner discussed the terms of his
plea agreement on multiple occasions prior to accepting the
plea.

While additional conversations may have occurred outside

15

of the presence of an interpreter,1 the Petitioner testified
under oath and with the assistance of an interpreter that,
before signing the agreement, his counsel explained it to him,
he fully understood the agreement, he did not have any questions
about it, and he had not been induced to offer the plea by any
promises. (Hr’g Tr. 8:10-16; 15:4-8, Dec. 12, 2013.)

He also

stated that he was satisfied with his counsel’s representation
and that he understood that the recommended sentence would be
between 57 and 71 months. (Id. 8:17-20; 11:13-18.)

The

Petitioner’s solemn declarations in open court carry a strong
presumption of truth. See Blackledge v. Allison, 431 U.S. 63, 74
(1977); United States v. Hernandez, 242 F.3d 110, 112-13 (2d
Cir. 2001) (per curiam).

Moreover, the recommended sentence of

57-71 months that the Petitioner acknowledged at his plea
hearing is the same range that he admits his counsel presented
to him on two separate occasions when he claims he expressed

1

Under prevailing professional norms, the decision of when and
how to employ an interpreter is, by necessity, a matter of
counsel’s and client’s discretion based on the proficiency of
each party in a particular language. See, e.g., Ass’n of the Bar
of the City of N.Y., Formal Op. 1995-12 (1995). Certainly, “the
practice of limiting communications with the client to periods
when the lawyer and client are in court and court interpreter is
available has a prejudicial effect on the client.” Id. The
record here shows, however, that this prejudicial practice was
not employed. In addition to speaking to members of the
Petitioner’s family (with the Petitioner’s consent) who have
some degree of English proficiency, Sosinsky and the Petitioner
agree that a Spanish interpreter was utilized on other occasions
outside of court appearances.
16

anger at the inclusion of the supervisory role enhancement. (See
Mem. 2-4; Alvarez-Estevez Aff. 8-11; Sosinsky Aff. Ex. B.)
Therefore, the Petitioner’s allegation that his counsel failed
to advise him that the plea agreement included a supervisory
role enhancement that resulted in a recommended sentence under
the Guidelines of 57-71 months is not supported by the record.
Accordingly, the Petitioner has not established that his
counsel’s conduct, which included multiple discussions of the
plea agreement’s terms with the assistance of a Spanish
interpreter, fell below an objectively reasonably standard
measured by prevailing professional norms.
B.

The Petitioner Was Not Prejudiced By the Alleged Deficiency
in His Counsel’s Representation
Failure to make a sufficient showing under either prong of

the Strickland test is fatal to a claim of ineffective
assistance of counsel. See Strickland, 466 U.S. at 697.

Out of

an abundance of caution, however, this Court will also address
the Petitioner’s failure to show that he suffered prejudice.
The supervisory role enhancement affected Petitioner’s
sentence in two ways.
First, it factored into the decision not to apply the thenpending Amendment 782 at the time of the Petitioner’s original
sentencing.

Since Amendment 782 became effective, however, the

17

Petitioner’s sentence has been reduced accordingly.

Therefore,

this point is now moot.
Second, the supervisory role enhancement increased the
Petitioner’s offense level by two points, which increased the
recommended Guidelines range for his sentence.

Even though the

Guidelines are not mandatory and the Petitioner received a
sentence below his recommended Guidelines’ range, in essence,
the Petitioner’s argument is that his counsel’s alleged promise
to have the supervisory role enhancement removed led him to
believe he would receive a reduced sentence. See, e.g., Caminero
v. United States, No. 99 Civ. 9093(TPG), 2008 WL 3833787, at *4
(S.D.N.Y. Aug. 15, 2008).
Where the defendant’s specific claim is that
counsel has misled him as to the possible
sentence which might result from a plea of
guilty, the prejudice issue is whether the
defendant was aware of actual sentencing
possibilities, and if not, whether accurate
information would have made any difference in
his decision to enter a plea.
Chhabra v. United States, 720 F.3d 395, 408 (2d Cir. 2013)
(internal quotation marks omitted).

In these instances, the

Second Circuit has instructed district courts to consider the
following nonexhaustive list of factors when determining whether
a defendant would have decided not to plead guilty and insisted
instead on going to trial:

(1) whether the defendant pleaded

guilty in spite of knowing that the advice on which he claims to

18

have relied might be incorrect; (2) whether pleading guilty
gained him a benefit in the form of more lenient sentencing; (3)
whether the defendant advanced any basis for doubting the
strength of the government’s case against him; and (4) whether
the government would have been free to prosecute the defendant
on counts in addition to those on which he pleaded guilty. Id.;
see United States v. Arteca, 411 F.3d 315, 320-22 (2d Cir.
2005).
As an initial matter, the Petitioner advised this Court
that he was aware of the actual sentencing possibilities at his
plea hearing when he stated that he understood that his sentence
under § 841(b)(1)(C) could be up to 20 years. (Hr’g Tr. 9:5-8,
Dec. 12, 2013.)

Even assuming the Petitioner did not have

accurate information, three of the four Chhabra factors weigh
heavily in favor of suggesting that the Petitioner would not
have proceeded to trial.
Assuming that the alleged promise to remove the enhancement
occurred, the first factor weighs in favor of the Petitioner
going to trial because nothing in the record suggests that the
defendant knew at the time he accepted the plea that this
promise was incorrect.

The second, third, and fourth factors,

however, strongly suggest that the Petitioner would not have
proceeded to trial.

19

The second factor considers whether the Petitioner’s guilty
plea afforded him more lenient sentencing than available at
trial.

The Petitioner’s guilty plea earned him a total

reduction of three criminal offense levels (two levels for
acceptance of responsibility and one level for timely notifying
of his intention to plead guilty), which would have been
unavailable to him if he proceeded to trial. See Arteca, 411
F.3d at 321.
The third factor considers whether the Petitioner had
doubts regarding the strength of the Government’s case against
him.

Nothing in the record suggests that the Petitioner had

such doubts.

First, the Petitioner readily admits his

involvement in the conspiracy. (See Mem. 9 (“Mr. Sosinsky was
aware of defendant Jorge Alvarez-Estevez’s co-defendants’
confession that Vismar Baez was in fact the organizer, leader,
manager and supervisor of the criminal activities of the charged
conspiracy and that defendant Jorge Alvarez-Estevez worked for
Vismar Baez in packaging the heroin.” (emphasis added)).
Second, the Petitioner readily admits that the drug mill was run
out of his residence. (See Hr’g Tr. 3:15-19, Dec. 12, 2013;
Opp’n 2.)2

Third, all of the Petitioner’s co-defendants also

chose to plead guilty. See Arteca, 411 F.3d at 321.

2

The U.S. Sentencing Commission’s commentary to U.S.S.G § 3B1.1
states that “[a]n upward departure may be warranted . . . in the
20

The fourth factor considers whether if the Petitioner
proceeded to trial, the Government would have been able to
prosecute him under additional counts.

While the Petitioner’s

indictment listed only one count, that count charged the
Petitioner under 21 U.S.C. § 841(b)(1)(A), which imposes a
mandatory minimum sentence of 10 years’ imprisonment.

This

mandatory minimum sentence is more than double the sentence that
the Petitioner received after agreeing to plead guilty to the
lesser included offense under § 841(b)(1)(C).
Finally, while the Second Circuit has refrained from
adopting a per se rule regarding the evidentiary weight accorded
to a prisoner’s mere allegation that he would have proceeded to
trial, see Arteca, 411 F.3d at 322, the Petitioner himself
equivocates on whether he would have done so:

“If Defendant had

been put on notice of leadership enhancement, he may have gone
to trial, or taken on other options . . . .

Moreover, Defendant

had sufficient evidence to have withdrawn his guilty plea [and]

case of a defendant who did not organize, lead, manage, or
supervise another participant, but who nevertheless exercised
management responsibility over the property, assets, or
activities of the criminal organization.” U.S. SENTENCING GUIDELINES
MANUAL § 3B1.1 cmt. n.2. Thus, even crediting the Petitioner’s
self-serving statements and his co-defendants’ unsubstantiated
claims that Baez alone led the conspiracy, the record as a whole
supports the Government’s case that the upward departure the
Petitioner agreed to is warranted.
21

could have succeeded on trial or asked for a new plea.” (Reply
Mem. in Support of Pet’r’s 28 U.S.C. § 2255 Pet. 7.)
Based on the above, the record as a whole indicates that,
even if the Petitioner could show that his attorney’s assistance
fell below an objective standard of reasonableness, he cannot
show that he was prejudiced by the assumed deficiency.
C.

The Petitioner Is Not Entitled to a Default Judgment Despite
the Government’s Late Submission
On May 12, 2015, the Petitioner moved this court to adopt

his petition based on the Government’s late filing.

On May 15,

2015, without deciding the merits of the petition, the Court
directed the petitioner to file his reply because “default
cannot be obtained in habeas proceedings brought against the
Unites States ‘unless the claimant first establishes his claim
or right to relief by evidence satisfactory to the court.’”
(Order, Alvarez-Estevez, 15 Civ. 971 (May 15, 2015), ECF No. 5.)
Since the petitioner has failed to establish a claim of
ineffective assistance of counsel, he is not entitled to default
against the United States.
Conclusion
The Court has considered all of the Petitioner’s arguments
and has determined that they are without merit.

There is no

need for the requested evidentiary hearing because “the motion
and the files and records of the case conclusively show that the

22

prisoner is entitled to no relief.u 28 U.S.C.

§

2255(b).

For

the reasons described above, the Petitioner's motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
is denied.

§

2255

The Clerk is respectfully directed to close the case

and enter judgment for the respondent.
Petitioner has not made a substantial showing of the denial
of a constitutional right and, therefore, a certificate of
appealability shall not issue. See 28 U.S.C.

§

The Court certifies, pursuant to 28 U.S.C.

2253(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 an appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
SO ORDERED.

Dated:

February 3, 2016
New York, New York

':r

JU John lf:~
~
F. Keenan
United States District Judge

23