Suarez v. United States of America

Filing 6

OPINION AND ORDER. For the foregoing reasons, petitioner's motion for habeas relief is DENIED. The Clerk of Court is directed to terminate the motion at 11-cr-836, ECF No. 101, and to close the case 17-cv-133. SO ORDERED. (Signed by Judge Katherine B. Forrest on 11/27/2017). Copies Sent By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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YESID RIOS SUAREZ,
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Plaintiff,
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-v:
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UNITED STATES OF AMERICA,
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Defendant.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: November 27, 2017

17-cv-0133 (KBF)
11-cr-0836 (KBF)
OPINION & ORDER

KATHERINE B. FORREST, District Judge:
On May 2, 2013, Yesid Rios Suarez (“petitioner”) was transferred to the
United States from Colombia under an extradition agreement; on the same day, he
was arraigned for participation in a conspiracy to import cocaine into, among other
places, the Southern District of New York. He pled guilty to the Indictment on
February 4, 2014. On June 27, 2014, he was sentenced to 648 months of
incarceration and fined $1 million under 21 U.S.C. § 963 for conspiracy to distribute
and possess with intent to distribute five or more kilograms of cocaine.
Petitioner now seeks to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. He contends that his sentence should be vacated because: (1) his
plea was neither knowing nor voluntary; (2) he received ineffective assistance of
counsel when deciding whether and how to plead guilty; (3) his sentence violates the
terms of the extradition agreement; and (4) the United States government’s recent
reclassification of Fuerzas Armadas Revolucionarias de Colombia (“FARC”)
warrants resentencing. The main thrust of the petition, read in the light most

favorable to petitioner, is that he believed the Court was bound by the terms of the
extradition treaty with regard to sentencing. As such, he claims, he pled guilty only
because he believed he would receive a 4.5-year or 12-year sentence.
For the reasons set forth below, the Court DENIES the petition.
I. BACKGROUND
Petitioner, a Colombian citizen, was a leader of a criminal enterprise that
included a number of individuals responsible for manufacturing thousands of
kilograms of cocaine in laboratories, transporting cocaine to air strips, loading
airplanes with cocaine, receiving money from airplanes on return trips or receiving
money from trucks, and financiers, and was otherwise extensive. (Mem. Decision &
Order, 11-cr-836, ECF No. 52, at 4; see also Fatico Hearing Trs., 11-cr-836, ECF
Nos. 53, 55.) The conspiracy was a sophisticated, vertically integrated enterprise
that extended over a large territory (including both manufacturing and distribution
operations.) (Id. at 4-5.) Petitioner participated in this enterprise beginning in the
1990s and for more than fifteen years, and the enterprise generated millions of
dollars in revenue during that time. (Id. at 5.)
Additionally, petitioner caused members of the conspiracy, including
individuals guarding the laboratories at which the cocaine was manufactured
(which petitioner supervised) to carry weapons. (Id. at 5.) In furtherance of
maintaining the secrecy of the operation, petitioner caused men armed with
weapons to murder two men. (Id. at 5.) The men were tied up at the order of
petitioner and taken to a location at which they were shot and killed. (Id. at 5.) In
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another instance, he supervised men loading explosives into an airplane to drop on
oil pipelines in a terrorist attack. (Id. at 5.) All told, petitioner committed these
offenses as part of criminal conduct engaged in as a livelihood; there was no
evidence that he engaged in any legitimate occupation during that time.
On September 29, 2011, an Indictment was returned against petitioner
charging him with participation in a conspiracy to import cocaine. (11-cr-836, ECF
No. 3.) Pursuant to an extradition treaty between the United States and Colombia
that, inter alia, prohibited petitioner from being subjected to life imprisonment,
(Pet. Ex. B at 6), petitioner was extradited to the United States on May 2, 2013. On
the same day, he was arraigned by this Court and pled not guilty to the single count
filed against him. He was provided with counsel from the Criminal Justice Act
Panel (“CJA counsel”), Aubrey Lees, as well as a Spanish interpreter.1
Lees served as petitioner’s attorney until January 7, 2014, when she was
relieved as counsel of record due to a “complete breakdown in communications” with
petitioner, who refused to “follow [her] advice . . . [and] participate in his defense,”
and who “persist[ed] in arguing with [her] regarding the law and the application of
the law.” (11-cr-836, ECF No. 24.) On that day, John Meringolo was appointed as
new CJA counsel; Meringolo served as petitioner’s counsel when he pled guilty, as

Throughout his petition, petitioner references his inability to speak English. The Court notes that
at every proceeding in this criminal matter, petitioner received the assistance of a court-appointed
translator. At various hearings, the Court notified petitioner that “it is very important that [he]
understand the entirety of the proceedings today, so if at any point in time [his] equipment
malfunctions and [he] cannot hear the translation, let [his] counsel know and [the Court] will fix it
immediately.” (July 9, 2013 Hearing Tr. at 2:15–19; see also Plea Tr. at 2:8–21; Sentencing Tr. at
2:10–17.)
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well as through sentencing and appeal. (See, e.g., 11-cr-836, ECF Nos. 48, 57, 64.)
Also on that day, petitioner rejected the Government’s offer of a plea agreement
with a stipulated Guidelines range of 168–210 months. (Jan. 7 Hearing Tr. at 3:13–
23; see also 17-cv-133, ECF No. 1 (“Mot.”), at 7.)
Almost a month later, on February 4, 2014, petitioner pled “open” to the
Indictment; that is to say, petitioner pled guilty without the benefit of a plea
agreement. Before petitioner’s allocution, however, the Court informed him of the
rights he would forfeit if he pled guilty, including the right to a trial. (Plea Tr. at
8:8–25.) As particularly relevant to the instant petition, the Court explained to
petitioner that “the Court is required to do its own calculation of [his] offense level
prior to sentencing, and . . . it could be the same as that which [the prosecutor] set
forth [at the hearing], it could be different, it could be higher or it could be lower.”
(Id. at 22:5–10.) It further noted that because petitioner was “not proceeding
pursuant to an agreement, . . . nobody right now can calculate [his] offense level
with any certainty.”2 (Id. at 22:19–22.)
Moreover, the Court specifically informed petitioner that his offense level
“carries a possible term of incarceration of life,” and that “while the government
may not, pursuant to a treaty, seek a life sentence for [him], that does not prevent
the Court from imposing a life sentence on [him].” (Plea Hearing Tr. at 23:10–13.)
The Court explained that it has the “discretion to determine any sentence that is at

There was no Pimentel letter, (id. at 3:19–20), but later, at the sentencing hearing and in its
sentencing submission, the Government sought a sentence of more than 360 months, (Sentencing Tr.
at 33:8–11; Government’s Sentencing Mem., 11-cr-836, ECF No. 60, at 8).
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least a statutory minimum but at or below life.” (Id. at 23:19–22 (emphasis added).)
Each time the Court asked if petitioner understood, he answered in the affirmative.
Specifically, when asked if he understood that “the Court could sentence [him] to
life imprisonment, . . . and [he] could do no worse if [he] went to trial,” he
responded, “I understand, your Honor.” (Id. at 24:3–7.)
After all this, petitioner allocuted to knowingly fueling planes packed with
cocaine and he pled guilty to conspiracy to import at least five kilograms of cocaine
from Colombia to the Southern District of New York. (Plea Tr. at 26:12–16.) On
June 27, 2014, he was sentenced to 648 months of incarceration. (Sentencing Tr. at
48:10–17.) The Court noted that it was “not pronouncing a life sentence,” but rather
a 54-year sentence. (Id. at 48:18–24.) Petitioner appealed, and the Second Circuit
affirmed the District Court’s decision. Now, the Court considers petitioner’s motion
for relief under § 2255.
II. LEGAL PRINCIPLES
A. Pro Se Petitions
Pro se litigants are “entitled to a liberal construction of their pleadings,
which should be read ‘to raise the strongest arguments that they suggest.’” Green
v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996)). Nevertheless, a Court must dismiss a petition under
§ 2255 without requiring a government response if “it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief.” Fed. R. Governing Sec. 2255 Proceedings for the
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U.S.D.C. 4(b); see also id. 5(a) (“The respondent is not required to answer the
motion unless a judge so orders.”).
B. The Effect of an Extradition Treaty on Sentencing
Petitioner argues the Court violated the extradition treaty in imposing a
sentence of 648 months. But when it affirmed petitioner’s sentence, the Second
Circuit held as a matter of first impression that petitioner “would only have
prudential standing to raise the claim that his sentence violated the terms of his
extradition if the Government of Colombia first makes an official protest.” United
States v. Suarez, 791 F.3d 363, 367 (2d Cir. 2015). The Second Circuit relied on
precedent that, in general, “absent protest or objection by the offended sovereign, [a
defendant] has no standing to raise the violation of international law as an issue.”
Id. (quoting United States v. Reed, 639 F.2d 896, 902 (2d Cir. 1981)).
In any case, “[t]he rule of specialty, which is derived from principles of
international comity, ‘generally requires a country seeking extradition to adhere to
any limitations placed on prosecution by the surrendering country.’” United States
v. Cuevas, 496 F.3d 256, 262 (2d Cir. 2007) (quoting United States v. Baez, 349 F.3d
90, 92 (2d Cir. 2003) (per curiam)) (emphasis added). As opposed to the prosecutor,
“a district court, ‘[i]n sentencing a defendant extradited to this country in
accordance with a diplomatic agreement between the Executive branch and the
extraditing nation, . . . delicately must balance its discretionary sentencing decision
with the principles of international comity in which the rule of specialty sounds.’”

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Cuevas, 496 F.3d at 262 (quoting Baez, 349 F.3d at 93) (alterations in original)
(emphasis added).
Furthermore, a sentence for a number of years is not the same as a “life
sentence” under an extradition treaty. See Suarez, 791 F.3d at 368 (Kearse, J.,
concurring) (concurring in the Second Circuit’s judgment on petitioner’s appeal
because the extradition treaty was not violated); United States v. Lopez-Imitalo,
305 Fed. App’x 818, 819 (2d Cir. 2009) (“[Petitioner’s] argument that the
Government breached the agreement by seeking a sentence of 60 years, which he
asserts is the functional equivalent of life imprisonment, fails for the same reason.
Had the respective governments intended the Diplomatic Note to be an assurance
that the U.S. government would not request a determinate sentence exceeding
[petitioner’s] expected lifespan, they could have drafted the note to say that.”).
C. Knowing and Voluntary Pleas
Petitioner also claims that his plea was neither knowing or voluntary,
because he did not understand that the extradition treaty was not binding on the
Court. “A defendant may ‘seek relief from the underlying plea where the plea was
not knowing and voluntary . . . .’” United States v. Alvarado, 581 Fed. App’x 4 (2d
Cir. 2014) (quoting United States v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005)). “[I]f [a]
defendant asserts that his plea was not voluntary, . . . [he must make] a sufficient
showing to raise a significant question as to voluntariness.” United States v.
Gonzalez, 647 F.3d 41, 53 (2d Cir. 2011). In other words, “a ‘defendant’s bald
statements that simply contradict what he said at his plea allocution are not
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sufficient grounds to withdraw [his] guilty plea.’” Id. at 56–57 (quoting United
States v. Hirsch, 239 F.3d 221, 225 (2d Cir. 2001)) (alteration in original); see also
Pringle v. United States, No. 10-cv-9659, 2011 WL 3792820, at *3 (S.D.N.Y. Aug.
25, 2011) (“In the absence of any credible evidence to the contrary, the court is
permitted to rely upon the defendant’s sworn statements, made in open court, that:
his plea was knowing and voluntary . . . .”).
D. Ineffective Assistance of Counsel
Broadly, petitioner further asserts that ineffective assistance of counsel
resulted in his being misinformed and, ultimately, his guilty plea. To prevail on an
ineffective assistance claim, petitioner “must [first] show that counsel’s
representation fell below an objective standard of reasonableness,” as measured
against “prevailing professional norms.” Strickland v. Washington, 466 U.S. 668,
688 (1984). In addition, he must demonstrate that counsel’s “deficient performance
prejudiced the defense,” id. at 687, meaning that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different,” id. at 694.
As particularly relevant to the instant petition, a defendant’s ineligibility for
parole is a collateral consequence of a guilty plea. United States v. U.S. Currency in
the Amount of $228,536.00, 895 F.2d 908, 915 (2d Cir. 1990); Trujillo v. United
States, 377 F.2d 266, 269 (5th Cir. 1967) (“[E]ligibility for parole is not a
consequence of a plea of guilty, but a matter of legislative grace. It is equally true

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that noneligibility for parole is not a consequence of a plea of guilty; rather, it is a
consequence of the withholding of legislative grace.” (internal quotations omitted)).
“[D]istrict courts need not inform a defendant of collateral consequences
during the plea colloquy,” United States v. Youngs, 687 F.3d 56, 60 (2d Cir. 2012),
and “counsel is not ineffective for failing to advise on collateral consequences,”
Brooks v. United States, 248 Fed. App’x 77, 82 (11th Cir. 2007); see also Chrisman
v. Mullins, 213 F. App’x 683, 687 (10th Cir. 2007) (“[T]he failure to inform of
consequences collateral to a plea . . . does not render the plea involuntary, does not
implicate the Sixth Amendment, and, therefore, cannot be the grounds for a viable
ineffective-assistance-of-counsel claim.”); James v. Cain, 56 F.3d 662, 666–67 (5th
Cir. 1995) (“[A]s long as the defendant understands the length of time he might
possibly receive, he is fully aware of his plea’s consequences. A defendant’s mere
expectation about the commutation and parole process is simply no ground for
habeas corpus relief.” (internal citations omitted)); Strader v. Garrison, 611 F.2d 61,
65 (4th Cir. 1979) (noting that “parole eligibility dates are collateral consequences of
the entry of a guilty plea of which a defendant need not be informed if he does not
inquire”); cf. Chrisman v. Mullins, 213 Fed. App’x 683, 687 (10th Cir. 2007) (“Gross
misadvice about parole eligibility can render legal assistance ineffective and
invalidate a plea.”).

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III. DISCUSSION
A. Effect of the Extradition Treaty
As noted earlier, the bulk of petitioner’s motion is concerned with the Court’s
and his counsel’s response to the extradition treaty. Petitioner contends that,
based on what he was told by his lawyer in Colombia and by Meringolo, as well as
“what he read for himself in the extradition documents,” he believed that the
extradition documents were binding on the Court; that is to say, the extradition
treaty would ensure a sentence of 4.5 years,3 or alternatively, of no more than 12
years.4 He claims that he rejected the plea agreement and pled “open” because of
this misunderstanding.
Specifically, petitioner argues: (1) his plea was neither knowing nor
voluntary, as he was not informed that the extradition treaty was not binding on
the Court; (2) his counsel was ineffective for failing to inform him that the
extradition treaty would not limit his sentence; and (3) the 648-month sentence
violates the extradition treaty. But during the plea hearing, the Court fully
explained that it could sentence petitioner to life, and petitioner said several times

Petitioner believes that the treaty required the Court to sentence him as he would be sentenced in
Colombia. Petitioner alleges that under Colombian law, he would receive an effective 4.5-year
sentence. First, he claims, the sentence that would apply under Colombian law is 8–18 years. (Pet.
Ex. A ¶ 10.) He then notes that under Colombian law, “accepting responsibility”—or pleading
guilty—“automatically cuts a sentence in half”; thus, he argues, his sentence would have been, at
most, nine years. (Id.) Finally, in Colombia, if one works while in prison, he claims, the sentence is
cut in half yet again, yielding a maximum of 4.5 years for petitioner, as he saw it. (Id.)
4 Petitioner also believes that the treaty prohibits a life sentence. Noting that the life expectancy for
“a man such as myself in Colombia” is 58 years, and that he was 46 years old at the time of
sentencing, he believed that the treaty thus prohibited a sentence of more than 12 years. (Pet. Ex. A.
¶ 11.)
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that he understood—any misunderstanding harbored by petitioner was dispelled.
The Court addresses each of petitioner’s arguments in turn.
1. Knowing and Voluntary
Petitioner claims that his plea was neither knowing nor voluntary, as he did
not understand how the “extradition documents impacted his sentence exposure.”
(Mot. at 7.) He claims that the “record of [his] plea hearing lacks any information
as to Petitioner’s understandings based on . . . what is plainly stated in the
extradition documents that any reasonable person would believe limited
Petitioner’s sentence exposure.” (Id. at 8.) In other words, petitioner argues that
he believed the extradition treaty protected him from a sentence of 168–210
months (the range offered by the Government in the plea agreement), let alone
648 months. Had he known that the Court could impose the sentence that it did,
he claims, he would not have pled guilty.
But as noted above, at the plea hearing, petitioner was told several times
that the Court could sentence him to life imprisonment. (Sentencing Tr. 23:10–13;
id. 23:19–22.) The Court specifically explained that while the Government could
not seek a life sentence pursuant to the treaty, the Court could decide to impose
one anyway. In response to this, petitioner stated multiple times—under oath—
that he understood. The Court cannot simply ignore petitioner’s statements in
open court, and petitioner has offered no evidence other than “bald statements” to
suggest that that his plea was not knowing or voluntary. Gonzalez, 647 F.3d at
56–57 (quotation omitted).
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2. Ineffective Assistance
Relatedly, petitioner has not stated a claim under Strickland that his counsel
was ineffective for failing to correct the misunderstanding discussed above. This
claim builds upon the previous claim; in addition to alleging his own
misunderstanding as evidence that his plea was neither knowing nor voluntary,
he alleges that it demonstrates ineffective assistance.
More specifically, petitioner claims that, had his counsel properly explained
the true impact of the extradition documents, he would not have rejected the plea
agreement and pled “open.” Petitioner blames his misunderstanding on Meringolo
and his Colombian lawyer, as well as on his own reading of the extradition treaty.
However, petitioner has not—and cannot—demonstrate prejudice in this regard.
The Court itself informed petitioner that it could impose up to a life sentence; had
this conflicted with his counsel’s advice or his own understanding, he would not
have told the Court—under oath—that he understood.
Additionally, at sentencing, the Court noted that even if there had been a
plea agreement, it “always retains its own discretion to make a sentencing
determination,” (Sentencing Tr. at 20:3–4), and that “irrespective of the plea
agreement arrived at, it would not have placed the defendant in any position other
than that in which he is placed today,” (id. at 20:22–24.) “Therefore,” the Court
continued, petitioner “suffers no prejudice because the Court would have gone
through the same analysis today that it is, in fact, going to go through,” whether
defendant pled with the benefit of a plea agreement or not. (Id. at 20:25–21:6.) As
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such, petitioner has not demonstrated that he is prejudiced due to his counsel’s
advice to reject the plea deal.
3. Violation of the Extradition Treaty
Finally, petitioner argues that the sentence imposed violates the terms of the
extradition treaty. However, as the Second Circuit explained in response to his
appeal, petitioner does not have standing to make this challenge. See Suarez, 791
F.3d 363. Only the Colombian government has the right to enforce this agreement
in court. And even if petitioner did have standing, or even if Colombia did
intervene, the Court is not strictly bound by the treaty in pronouncing a sentence;
the treaty only prohibits the Government from seeking a life sentence. In any
case, a 648-month sentence is not a “life sentence.” See Lopez-Imitalo, 305 Fed.
App’x 818.
As such, for no reason does the extradition treaty provide grounds for habeas
relief.
B. Counsel’s Failure To Inform Petitioner Regarding Parole Eligibility
Petitioner makes a separate ineffective assistance claim that Meringolo failed
to advise him that there is no parole or other early release opportunity in the
federal prison system. Had he known this, he again argues, he would not have pled
guilty. (Pet. Ex. A ¶¶ 33-35.) But failure to inform a defendant that he may not be
eligible for parole does not constitute ineffective assistance. Rather, it is a collateral

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effect of a guilty plea, of which counsel need not inform a defendant.5 Petitioner
does not allege that he was misinformed; he claims only that he was unaware that
he would not have the possibility of parole. As such, petitioner does not have a
claim of ineffective assistance of counsel on this ground either.
C. Effect of FARC Reclassification
Finally, petitioner argues that the U.S. Government’s reclassification of
FARC as a “legitimate political party . . . warrants vacatur of [his] sentence and at
least a new sentencing hearing” because the Government “relied heavily on [his]
claimed role or association with FARC.” (Mot. At 17.) But at sentencing, the Court
relied on the seriousness of the offense and the consequences of petitioner’s drug
trafficking—not on his alleged association with FARC. (Sentencing Tr. at 40:2–
44:20.) In fact, not once did the Court mention FARC at the hearing.6 As a result,
there is no indication that petitioner’s sentence would change based on FARC’s

In Padilla v. Kentucky, 559 U.S. 356 (2011), the Supreme Court did note that is has never “applied
a distinction between direct and collateral consequences to define the scope of constitutionally
‘reasonable professional assistance’ required under Strickland.” 559 U.S. at 365. However, the
Court there distinguished deportation, a “particularly severe penalty,” from true collateral
consequences. Id. at 366 (2010) (“Deportation as a consequence of a criminal conviction is, because of
its close connection to the criminal process, uniquely difficult to classify as either a direct or a
collateral consequence. The collateral versus direct distinction is thus ill suited to evaluating a
Strickland claim concerning the specific risk of deportation. We conclude that advice regarding
deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.”);
see also Youngs, 687 F.3d at 62 (“Padilla’s holding was limited to the requirement of counsel to
advise of deportation pursuant to their Sixth Amendment responsibilities.”). The possibility of
parole, conversely, is a collateral consequence; failure to inform a defendant of this consequence is
not ineffective assistance of counsel.
6 In all events, the Executive Branch’s reclassification of a foreign political party years after a
particular person’s prosecution is irrelevant to the person’s sentence itself. That is to say, even if the
party changed its activities, for example, warranting reclassification, the actions for which petitioner
was prosecuted are not retroactively altered or justified.
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reclassification, as his association with FARC was not a factor in his original
sentence.
IV. CONCLUSION
For the foregoing reasons, petitioner’s motion for habeas relief is DENIED.
The Clerk of Court is directed to terminate the motion at 11-cr-836, ECF No. 101,
and to close the case 17-cv-133.
SO ORDERED.
Dated:

New York, New York
November 27, 2017
________________________________
KATHERINE B. FORREST
United States District Judge

Copy to:
Yesid Rios Suarez
No. 92000-054
U.S. Penitentiary—McCreary
P.O. Box 3000
Pine Knot, KY 42635

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