Pimentel v. United States of America
MEMORANDUM OPINION AND ORDER: Petitioner's motion pursuant to 28 U.S.C. § 2255 is denied in its entirety. Because Petitioner has not raised meritorious claims, the Court also denies Petitioner's request for appointment of counsel. Pet itioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.S. § 2253(c)(1) (Lexis 2008). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.S. § 2253(c)(2) (Lexis 2008); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealabilty). The Court finds tha t Petitioner will not be able to sustain this burden. The Court declines to issue a certificate of appealability. Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good fait h. See Coppedge v. United States, 369 U.S. 438, 444 (1962). This memorandum opinion and order resolves docket entry number 1733, under case number 10 Cr. 905. The clerk of court is also directed to close case number 15 Civ. 3057. (As further set forth in this Order.) (Signed by Judge Laura Taylor Swain on 12/14/2015) Copies Mailed By Chambers. (spo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Petitioner Ricardo Pimentel (“Petitioner” or “Pimentel”), was
convicted, upon a guilty plea, of conspiring to sell between 1,000 and 3,000 kilograms of
marijuana, and, on April 23, 2014, was sentenced principally to a below-Guidelines custodial
sentence of 204 months of imprisonment. (See J., docket entry no. 1482.) Petitioner now
moves, pro se, pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence,
contending that he received ineffective assistance of counsel in connection with his guilty plea
and sentencing, and that the sentence imposed was substantively unreasonable. Petitioner also
seeks to have certain information removed from his Presentence Investigation Report (“PSR”).1
It appears that Petitioner’s principal concern is that the inclusion in his PSR of
information regarding conversations that he had with a drug co-conspirator about
the potential perpetration of violence on others with whom Petitioner had drug
dealings has had adverse ramifications for Petitioner’s designation and program
opportunities within the Bureau of Prisons. As explained below, the same
objections to the PSR passages were raised, and overruled, at Petitioner’s
sentencing. In any event, the Court does not have power under Federal Rule of
Criminal Procedure 32 to correct inaccuracies in a PSR after a Defendant has
been sentenced, see Cotona v. Federal Bureau of Prisons, No. 12CV609, 2013
WL 5526238, at *2 (S.D.N.Y. Oct. 7, 2013).
The Court has reviewed thoroughly the parties’ submissions in connection with
Petitioner’s 28 U.S.C. § 2255 motion. Construing Petitioner’s arguments liberally to raise the
strongest arguments that they suggest, Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996), the
Court nonetheless denies Petitioner’s motion in its entirety.
On November 9, 2010, Petitioner was charged in a twelve-count Superseding
Indictment with, inter alia, participating in a criminal conspiracy to distribute over 1,000
kilograms of marijuana. (Docket entry no. 130.) Petitioner pleaded guilty to the narcotics
conspiracy charge (Count Two of the Indictment) on March 29, 2012. (Change of Plea Hr’g Tr.
(“Plea Hr’g Tr.”) 30, docket entry no. 785.)
At his change of plea hearing, Petitioner acknowledged that, in his signed plea
agreement, he stipulated: that Petitioner is a Career Offender (Plea Hr'g Tr. at 20); that the
relevant Sentencing Guidelines range for a custodial sentence was 262 to 327 months
imprisonment (“Stipulated Guidelines Range”) (id. at 16); and that Petitioner would not file a
direct appeal, nor bring a collateral challenge to his sentence pursuant to 28 U.S.C. §§ 2255
and/or 2241, if his sentence fell within or below the Stipulated Guidelines Range (id. at 24).
Petitioner also confirmed that he had accepted the plea agreement and decided to plead guilty
because he was in fact guilty. (Id. at 30.)
Prior to accepting Petitioner’s guilty plea, the Court questioned Petitioner to
satisfy itself that Petitioner was entering into the plea knowingly, voluntarily, and competently.
Petitioner confirmed, inter alia, that: he had fully discussed his case with defense counsel,
including the charges to which Petitioner intended to plead guilty, available defenses, and the
consequences of entering a guilty plea (id. at 6-10); Petitioner had read the Plea agreement,
discussed it with defense counsel, and understood the Plea agreement prior to signing it (id. at
17); Petitioner was satisfied with defense counsel’s representation of him (id. at 6); Petitioner
understood he had the right to continue pleading not guilty and go to trial (id. at 7); and
Petitioner understood that, by pleading guilty and not going to trial, Petitioner was also giving up
the right to appeal any guilty verdict (id. at 8-9).
Petitioner also confirmed he understood, inter alia, that: upon conviction of Count
Two by guilty plea, the Court had the authority to impose on Petitioner any sentence ranging
from a minimum of ten years’ imprisonment followed by five years of supervised release, to a
maximum of imprisonment for life, followed by supervised release for life (id. at 12-14); and
that the Court was required to calculate Petitioner’s Sentencing Guidelines range and consider
the range and 18 U.S.C. § 3553(a) sentencing factors in determining the appropriate sentence for
Petitioner (id. at 14).
Following Petitioner’s guilty plea, the Probation Department prepared a PSR,
which included summaries of, and quotations from, several wire-tapped phone conversations
between Petitioner and co-defendant Manuel Geovanny Rodriguez-Perez. Paragraphs 29-31 of
the PSR (“Paragraphs 29-31”) summarized and quoted from a February 7, 2010, telephone
conversation between Petitioner and Rodriguez-Perez, where “[Rodriguez-Perez] and
[Petitioner] revealed plans to attack or kill rivals of the Pimentel Group,” and “wherein
[Rodriguez-Perez] discussed assisting with hurting or killing certain people who robbed
[Petitioner] if those people went to the Dominican Republic.” Paragraphs 34-35 (“Paragraphs
34-35,” together with Paragraphs 29-31, the “Rodriguez-Perez Conversations”) described
additional conversations between Petitioner and Rodriguez-Perez, in which Petitioner stated that
he was going to “rip” the face off someone who had allegedly stolen money from him and
reported to Rodriguez-Perez that “my worker got shot in the back, twice.”
Defense counsel submitted objections to the PSR to the Probation Department,
including objections to the “subjective conclusions and characterizations” of the PSR’s summary
of the Rodriguez-Perez Conversations, and to the inclusion of summaries of the conversations at
all because they did not reveal Petitioner’s agreement to kill anyone. (Def. Sent. Mem. Ex. A.,
Nov. 8, 2013.) The Probation Department determined that the inclusion of the objected-to
material was proper, and defense counsel made the same objections in Petitioner’s Sentencing
Memorandum and orally at sentencing. At no time did the Petitioner deny participation in the
conversations. Rather, Petitioner represented that he had not initiated the discussions of violence
and had only gone along with the conversations to placate Rodriguez-Perez, neither intending or
agreeing to do harm to anyone. (Sent. Tr. 6.) The Government argued that the conversations
were indicative of an intention to put the subjects of the conversations in danger and, in any
event, indicated that Petitioner was a trusted member of the drug trafficking organization. (Id. at
The Court overruled Petitioner’s objections to the inclusion of information
regarding the Rodriguez-Perez Conversations in the PSR, finding that the information was
relevant to his drug trafficking activity and that the conversations could fairly be interpreted as
threatening the safety of individuals who had wronged Petitioner in that connection. (Id. at 7.)
In explaining the role that the information played in the Court’s determination of Petitioner’s
sentence, the Court acknowledged Petitioner’s representation that he did not intend to have
Rodriguez-Perez punish the individuals, but stated that the fact that Rodriguez-Perez discussed
such matters with Petitioner indicated that Petitioner’s connections with the conspiratorial group
were “deep” and that the depth of the connection was a significant factor in the court’s
determination of what sentence would properly address the sentencing factors of punishment,
deterrence, protection of the public and promotion of respect for the law. (Id. at 45.) The Court
did not find that Petitioner had actually entered into any agreement to kill or harm any person,
and thus did not factor any such finding into its sentencing determination.
The Court applied the Career Offender Guidelines provisions, finding that the
relevant Guidelines range was 262 to 327 months of imprisonment, then departed downward to
credit Petitioner for 31 months of imprisonment that he had previously served on a conviction
for relevant conduct, resulting in an adjusted Guidelines range of 231 to 296 months of
imprisonment. The Court then considered all the factors under 18 U.S.C. § 3553(a), varied
downward as a result, and imposed a sentence of 204 months of imprisonment, to be followed by
eight years of supervised release. (Id. at 48.)
Following the entry of judgment, Petitioner filed a Notice of Appeal. Petitioner’s
appeal was dismissed on October 30, 2014, pursuant to Petitioner’s voluntary withdrawal.
Petitioner filed this motion pursuant to 28 U.S.C. § 2255 on April 9, 2015.
A petitioner may prevail on a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255 if he can show that his sentence: (1) was imposed in violation of
the Constitution or the laws of the United States; (2) was entered by a court without jurisdiction
to impose the sentence; (3) exceeded the maximum detention authorized by law; or (4) is
otherwise subject to collateral attack. The grounds for relief under Section 2255 are limited, out
of “respect for the finality of criminal sentences, the efficient allocation of judicial resources,
and an aversion to retrying issues years after the underlying events took place.” United States v.
Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (internal quotation marks and citation omitted).
Petitioner claims that defense counsel failed to provide effective assistance in
connection with his guilty plea because defense counsel “did not advise [Petitioner] that his
range of punishment would be calculated while using the information of the uncharged conduct
of the [Rodriguez-Perez Conversations]” and that “at no time, prior to, during, or after
[Petitioner] entered his guilty plea, was he aware that he could or would be punished for
conspiring to kill or hurt people”; and “that had counsel told [Petitioner] his offense conduct may
subject him to punishment for conspiring to kill or hurt people, then [Petitioner] would not have
entered a guilty plea.” (Pet’r Mem. at 8.) Petitioner also argues that he received ineffective
assistance of counsel at sentencing because defense counsel’s objections to the Rodriguez-Perez
Conversations were “not proper and not supported by law or facts,” (id. at 7), and defense
counsel failed to raise “a constitutional objection to Petitioner being punished for an offense he
did not plead to.” (Id.) Petitioner further argues that “the district court erred in sentencing him
when it considered facts related to an unproven conspiracy to kill or hurt people described in
paragraphs 29-31, 34 and 35,” and that the Court’s consideration of that “uncharged conduct”
rendered Petitioner’s sentence substantively unreasonable. (Id. at 4.)
Claim of Ineffective Assistance of Counsel in Connection with Guilty Plea2
To prevail on an ineffective assistance of counsel claim, Petitioner must show that
(1) counsel’s performance was deficient under an objective standard of reasonableness; and (2)
The Government concedes that Petitioner has not waived his claim of ineffective
assistance of counsel with respect to his plea agreement. (See Gov’t Opp. Def.
Mot. 14, Jun. 26, 2015, docket entry no. 1745.)
Petitioner was prejudiced as a result of counsel’s deficient performance. Strickland v.
Washington, 466 U.S. 668, 688-94 (1984). In determining whether counsel’s performance was
deficient, “the court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,” and the challenger’s burden is to show that
the errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687-89.
In the context of alleged ineffective assistance of counsel rendered in connection
with a plea, “[t]he second, or prejudice, requirement . . . focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process . . . . [T]he
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 v. Lockhart, 474
U.S. 52, 58-59 (1985); see also Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (petitioner “must
convince court that a decision to reject the plea bargain would have been rational under the
Petitioner argues that defense counsel was ineffective because he failed to inform
Petitioner that the “uncharged conduct” in the Rodriguez-Perez Conversations could be
considered by the Court in determining Petitioner’s “sentencing range,”3 and that had Petitioner
known that the conversations could be used in that manner, he would not have pleaded guilty or
As explained above, Petitioner’s Guidelines range was predicated upon his Career
Offender status, and was reduced from the computed Career Offender Guidelines
sentence to account for time previously served on a conviction for relevant
conduct. No findings or factors relating to the Rodriguez-Perez Conversations
played any role in the determination of Petitioner’s Sentencing Guidelines range.
entered into the plea agreement.
Petitioner’s ineffective assistance argument rests on the false premise that he was
sentenced for the uncharged violent crime of conspiring to kill or hurt other individuals. As
explained above, the Court made no finding that he had engaged in such behavior and did not
sentence him on that basis. Thus, the complained-of failure by counsel to advise Petitioner that
he could be subject to sentencing for such uncharged conduct cannot constitute a constitutional
deficiency in counsel’s performance and Petitioner cannot demonstrate that he was prejudiced by
failure to warn him of a consequence that he did not suffer.
Construing Petitioner’s argument as asserting that he would not have pleaded
guilty had he known that the Rodriguez-Perez Conversations would be taken into account in any
way in determining his sentence, he still fails to show any constitutional deficiency in counsel’s
performance and makes no showing that such a decision would have been rational. Upon
questioning by the Court at his plea hearing, Petitioner specifically confirmed that he understood
that the Court would consider sentencing factors under Section 3553(a) in determining
Petitioner’s sentence, and nonetheless decided to proceed with pleading guilty. (Plea Hr’g Tr. at
14.) Moreover, Petitioner would have been facing a maximum sentence of life imprisonment
without the plea agreement, rather than 327 months, the Government’s evidence against him was
strong (see Plea Hr’g Tr. 28-30), and he would still have faced consideration of the RodriguezPerez conversations in connection with his sentencing. Petitioner has failed to show deficient
performance by counsel and prejudice.
Petitioner’s Remaining Claims are Waived
Petitioner’s remaining claims regarding ineffective assistance of counsel at
sentencing and the substantive unreasonableness of his sentence, both of which attack the actual
sentence imposed, are equally baseless as a factual matter and are, in any event, precluded by
Petitioner’s knowing, voluntary, and competent waiver of his right to challenge his sentence in
his plea agreement.
Waivers contained within plea agreements are presumptively enforceable, except
in “very limited situations,” such as when the waivers were “not made knowingly, voluntarily,
and competently, when the sentence was imposed based on constitutionally impermissible
factors, such as ethnic, racial or other prohibited biases, when the government breached the plea
agreement, or when the sentencing court failed to enunciate any rationale for the defendant’s
sentence.” U.S. v. Aravelo, 628 F.3d 93, 98-99 (2d Cir. 2010) (internal quotation marks and
citation omitted). Although actual ineffective assistance of counsel in connection with a plea
could cast doubt on the validity of a waiver, Petitioner has made no such showing here. See U.S.
v. Monzon, 359 F.3d 110, 118-19 (2d Cir. 2004) (rejecting notion that a waiver becomes
unenforceable simply because a defendant “claims” ineffective assistance of counsel in
connection with entering the plea agreement); see also U.S. v. Djelevic, 161 F.3d 104, 107 (2d
Cir. 1998) (“If we were to allow a claim of ineffective assistance of counsel claim at sentencing
as a means of circumventing plain language in a waiver agreement, the waiver provision would
be rendered meaningless.”). Furthermore, a petitioner who has waived his right to challenge a
sentence and raises an ineffective assistance of counsel at sentencing claim, but seeks only to
challenge the sentence and not to withdraw his plea, is properly viewed as having raised “a
dress[ed] up  claim [of] a violation of the Sixth Amendment, [which] in reality is challenging
the correctness of [the] sentence under the Sentencing Guidelines, and is therefore barred by the
plain language of the waiver contained in his plea agreement with the government.” Djelevic,
161 F.3d at 107.
Petitioner has not overcome the presumption that his waiver of the right to
challenge any sentence within or below the Stipulated Guidelines Range is valid. He has not
demonstrated that he was denied effective assistance of counsel in connection with his plea, nor
has he demonstrated that his plea proceeding was defective in any other way. Furthermore, the
record is clear that Petitioner knowingly waived his right to appeal the sentence that was
imposed on him. Petitioner specifically acknowledged, in his plea agreement, that he was
waiving his right to bring a direct appeal or collateral challenge to his sentence pursuant to 28
U.S.C. § 2255, if he was sentenced to 327 or fewer months of imprisonment. Petitioner was
sentenced to 204 months of imprisonment. The waiver provision of his plea agreement thus
precludes his claim of ineffective assistance of counsel at sentencing and his claim that his
sentence is substantively unreasonable.
Finally, Plaintiff’s reliance on the Second Circuit’s recent decision in United
States v. Morgan, 768 F.2d 227 (2d Cir. 2015), is misplaced. There, the appellate court reversed
a criminal conviction, finding that the trial court’s admission of evidence of a narcotics
defendant’s plot to murder a cooperating witness violated Rule 403 of the Federal Rules of
Evidence and denied the defendant a fair trial. Morgan is inapposite here. Unlike the
communications in that case, the Rodriguez-Perez Conversations took place in the course of and
in connection with Petitioner’s narcotics conspiracy crime. The murder plot in Morgan related
to efforts to thwart the trial, and was conduct separate from the charged narcotics conspiracy.
Furthermore, the rule of evidence applied in Morgan does not apply in sentencing proceedings,
and the Court considered the Rodriguez-Perez Conversations (which undisputedly took place)
for a proper purpose here, as indicative of Petitioner’s significant connection to the leader of the
Petitioner’s motion pursuant to 28 U.S.C. § 2255 is denied in its entirety.
Because Petitioner has not raised meritorious claims, the Court also denies Petitioner’s request
for appointment of counsel.
Petitioner may not appeal this order unless “a circuit justice or judge issues a
certificate of appealability.” 28 U.S.C.S. § 2253(c)(1) (Lexis 2008). A certificate will be
granted “if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C.S. § 2253(c)(2) (Lexis 2008); see generally United States v. Perez, 129 F.3d 255,
259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealabilty). The
Court finds that Petitioner will not be able to sustain this burden. The Court declines to issue a
certificate of appealability. Furthermore, 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. See Coppedge v. United
States, 369 U.S. 438, 444 (1962).
This memorandum opinion and order resolves docket entry number 1733, under
case number 10 Cr. 905. The clerk of court is also directed to close case number 15 Civ. 3057.
Dated: New York, New York
December 14, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
A copy of this order has been mailed to:
Mr. Ricardo Pimentel # 64041-054
F.C.I. Ray Brook
P.O. Box 900
Ray Brook, New York 12977
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