Martinez-Castillo v. USA

Filing 12

OPINION & ORDER: For the foregoing reasons, Petitioner's motion is DENIED in its entirety. The Clerk of the Court is respectfully directed to enter judgement for the United States and close this case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 7/30/2019) (rj) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

EDDY RAFAEL MARTINEZ-CASTILLO,
17-cv-00762 (NSR)
Petitioner,
(Related Criminal Action:
Case No. 16-cr-368 (NSR))

-againstUNITED STATES OF AMERICA,

OPINION & ORDER

Defendant.

NELSONS. ROMAN, United States District Judge
On January 30, 2017, Petitioner Eddy Rafael Martinez-Castillo ("Petitioner" or "MartinezCastillo") commenced this action under: 28 U.S.C. § 2255 and U.S.C. § 3582(c)(2) challenging
the validity of the Court's decision to sentence him to 58 months of imprisonment for his violation
of 21 U.S.C. § (b)(l)(c). Petitioner argues that he should receive a reduced sentence based on: 1)
United States Sentencing Guidelines ("U.S.S.G.") Amendment 782 not being properly applied in
his sentencing and 2) because he was denied participation in a drug program known as the
Residential Drug Abuse Program ("RDAP"). The Government opposes the Motion. For the
following reasons, Petitioner's Motion is DENIED.

BACKGROUND
The Offense
In September 2015, the Drug Enforcement Agency ("DEA") and Yonkers Police
Department ("YPD") began investigating heroin trafficking around Midland Avenue, #4B in
Yonkers, NY (the "Apartment"). Officers placed a hidden surveillance camera outside the

11 ip~rt~~nt, which on September 23, 2015, provided them with real-time images. (PSR ,r 11.)
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On December 12, 2015, officers conducting surveillance of the Apartment saw MartinezCastillo and a companion, Antonio Poueriet, exit the Apartment and enter a vehicle. The officers
followed the vehicle towards Manhattan but lost them soon thereafter. (PSR ¶ 12.) Later that day,
the camera recorded Martinez-Castillo and Emmanuel J. Taylor entering the Apartment. Poueriet
came back shortly after. Martinez-Castillo and Taylor then exited while carrying suspicious plastic
bags. A YPD officer approached and asked to check the bags. The bags contained a hard brick of
something wrapped by clothes. Martinez-Castillo and Taylor were then arrested. The brick turned
out to be a large sum of money that was found to be worth around $63,000. (Id. ¶ 13.)
Martinez-Castillo then told one officer that his friend was in the Apartment, and he
provided the officer with the key. The officers went up to the apartment with Martinez-Castillo
and encountered Poueriet. Poueriet was then arrested. The officers then searched the apartment
and found an additional $5,000 (Id. ¶ 14.) Following Poueriet’s arrest, Poueriet explained that the
Apartment was part of a heroin trafficking operation. (Id. ¶ 15.)
Procedural History
On July 14, 2016, Petitioner pleaded guilty to Count 1 of the Indictment for conspiring to
distribute and possessing with intent to distribute heroin. On November 17, 2016, this Court
sentenced him to 58 months’ imprisonment followed by 2 years of probation. (Id. ¶ 5.)
On January 30, 2017, Petitioner filed his first motion to vacate. (Criminal Docket,16-cr368 (NSR) (S.D.N.Y. Mar. 21, 2017), (“CR”), ECF No. 54, Civil Docket 17-cv-762 (NSR)
(S.D.N.Y. Mar. 30, 2017), (“CV”), ECF No. 1.) On March 21, 2017 and March 30, 2017, Petitioner
filed amended motions to vacate on both the criminal and civil dockets. (See CR, ECF No. 57; CV,
ECF No. 6). The Government responded to these on May 12, 2017. (See CR, ECF No. 60.)

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On June 9, 2017, Martinez-Castillo filed another Amended Motion to Vacate. (See CR,
ECF No. 62; CV ECF No. 8.) The Government then sought an additional opportunity to answer.
On May 16, 2019, this Court issued an order, directing the Government to answer MartinezCastillo’s Amended Motion within 60 days. (See CR, ECF No. 64; CV, ECF No. 9.) On July 17,
2019 the Government filed its answer. (See CV, ECF No. 11.)
DISCUSSION
Petitioner claims that there are two reasons why his sentence should be vacated or reduced.
First, he claims that an amendment to the USSG was not properly applied during sentencing and
that it should be retroactively applied to his sentence. Second, he claims that his immigration status
is preventing him from participating in a drug program known as RDAP, which he believes could
potentially grant him an early release, and thus his rights are being violated. The Court addresses
each argument in turn but begins with a third issue, Petitioner’s inability to contest his sentence.
Claims Barred
The validity of specific waiver provisions made voluntarily and knowingly within an
agreed upon guideline has been consistently confirmed. United States v. Rosa, 123 F.3d 94, 97 (2d
Cir. 1997); United States v. Maher, 108 F.3d 1513, 1531 (2d Cir. 1997); United States v. Jacobson,
15 F.3d 19, 22-23 (2d Cir. 1994); United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d
Cir.1993). Hence, where claims arise in contravention to explicit waiver provisions of plea
agreements, those claims are improper and barred from consideration.
Petitioner’s claim for a reduced sentence is barred due to his knowing and voluntary waiver
of right to make such claims in his plea agreement. Petitioner’s plea agreement, which Petitioner
signed on June 16, 2016, states “the defendant will not file a direct appeal; nor bring a collateral
challenge, including but not limited to an application under Title 28, United States Code, Section

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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 70-87
months’ imprisonment.” (See Plea Agreement, (“PA”), at 4.) This suffices as a waiver of right.
Additionally, during Petitioner’s Change of Plea Hearing, which was held on July 14, 2016,
the Court asked Petitioner if he “sign[ed] this agreement?” to which he responded affirmatively.
In addition, the Court asked Petitioner, “Did you review the agreement when you signed it?”
Petitioner again responded affirmatively. The Court then asked if Petitioner “discuss[ed] it with
[his] attorney before [he] signed it?” and if he did, did he “fully understand the agreement before
[he] signed it?” Petitioner again responded affirmatively to both questions. The Court later
specifically asked Petitioner, “Do you understand that you have agreed to waive any and all right
to attack your sentence, either on direct appeal or collaterally, or to seek a sentence modification
of any sentence within or below the stipulated Guidelines range of 70 to 87 months’
imprisonment?” Petitioner responded affirmatively again, thus confirming his knowing and
voluntary waiver of these rights pursuant to the plea agreement.
Because Martinez-Castillo’s sentence of 58 months was below the Stipulated Guidelines
Range of 70 to 87 months, and because he knowingly waived his rights to do so during his Change
of Plea Hearing, he is unable to seek relief under 28 U.S.C. § 2255.
Amendment to 18 U.S.C. § 3582(c)(2)
Even if Petitioner had not waived his rights as part of his plea agreement, he fails to provide
any legal basis for a claim under 18 U.S.C. § 3582(c)(2), which states that “in the case of a
defendant who has been sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission…the court may reduce the term of
imprisonment.” 18 U.S.C. § 3582(c)(2). Petitioner cites U.S.S.G. Amendment 782, which reduced

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offense levels by two in U.S.S.G. §2D1.1. The effective date of this Amendment was November
1, 2014. Petitioner was sentenced two years after this date, in November 2016. Petitioner’s belief
that this amendment was not applied to his sentence is incorrect. The base offense level for a 21
U.S.C. § 846 offense involving at least a kilogram of heroin under USSG §2D1.1(c)(5) with
Amendment 782 in effect would be 30, the same base offense level actually applied to him. (See
PSR ¶ 25.) Because Amendment 782 had already been in effect and was considered by the Court
during sentencing, 18 U.S.C. § 3582(c)(2) is inapplicable. U.S. v. Tyner, 308 Fed. Appx. 245, 248
(10th Cir. 2008). Thus, Petitioners claims premised on this statute are dismissed.
Participation in RDAP
Petitioner lastly argues that his constitutional rights were violated because the prison
excluded him from participating in RDAP, a drug program offered by the Bureau of Prisons
(“BOP”) that occasionally allows up to one year of time to be taken off of a defendant’s sentence
upon completion. Petitioner claims that he is unable to access RDAP due to his immigration status.
The Court finds Petitioner’s argument inappropriate for the instant Motion. Petitioner’s
Motion was filed under 28 U.S.C. § 2255, as a motion to vacate his sentence, not as a writ for
habeas corpus. Any issues regarding the execution of a sentence, as opposed to the imposition of
a sentence, including eligibility for RDAP, should be filed as a motion for habeas corpus relief
under 28 U.S.C. § 2241. Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (noting that “execution
of a sentence includes matters such as ‘the administration of parole, computation of a prisoner’s
sentence by prison officials, prison disciplinary actions, prison transfers, type of detention, and
prison conditions”) (quoting Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001)). Here, the BOP’s
administration of RDAP pertains to its execution, and not the Court’s imposition, of a sentence.

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Apart from Petitioner’s argument being inappropriate for a motion to vacate, even if the
motion had been filed as a writ of habeas corpus, this Court would not have jurisdiction over it,
as it would need to be filed in the Western District of Pennsylvania, the district of the prison in
which the Petitioner is currently being held. See Levine, 455 F.3d 71.
But even if this Court had proper jurisdiction and this motion was filed as a writ for habeas
corpus, Petitioner failed to exhaust the administrative remedies related to his RDAP issues.
According to the Regional Counsel of the BOP, Petitioner did not exhaust the second or third
phases of administrative review. (See Government’s Letter Dated July 17, 2019, CV ECF No. 11)
(reflecting that BOP confirmed that Petitioner did not complete required phases of administrative
review). This lack of full exhaustion of administrative remedies is, by itself, substantial enough to
deny the claim. Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001).
Similarly, even if Plaintiff filed this motion in the appropriate form and venue, the inability
to obtain a reduced sentence through RDAP is unlikely a violation of due process. Early release,
such as that which may be achieved through RDAP, is not a liberty interest, as its denial does not
impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Indeed, the denial of early release upon
the completion of RDAP has been found to not be a denial of a liberty interest before. Hickerson
v. Willingham, No. 3:06–cv–777, 2006 WL 3422186 (D.CT. Nov. 28, 2006).
Further, §3621(e)(2)(B), which allows early release through RDAP, “instructs that the BOP
‘may,’ not that it must, grant early release.” Lopez v. Davis, 531 U.S. 230, 231 (2001). This
language grants the BOP discretion to reduce sentences under §3621(e)(2)(B), even with the
satisfaction of its two prerequisites: conviction of a non-violent crime and completion of a drug
treatment program. Id. This discretion further establishes that exclusion from RDAP does not

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implicate a liberty interest. As a result, any claims regarding denial of Petitioner's right to due
process as related to RDAP are dismissed.
CONCLUSION
For the foregoing reasons, Petitioner's motion is DENIED in its entirety. The Clerk of the
Court is respectfully directed to enter judgement for the United States and close this case.

Dated:

July 30, 2019

SO ORDERED:

White Plains, New York

N~1SON~:RoMAN
United States District Judge

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