Acevedo-Hernandez v. USA
Filing
16
OPINION AND ORDER adopting Report and Recommendation 13 denying Motion to Vacate, Set Aside, or Correct Sentence 1 . For the reasons elucidated in the instant Opinion and Order, the Court hereby ADOPTS the Magistrate Judge's Report and Recommendation Docket No. 13 IN TOTO and INCORPORATES IT HEREIN BY REFERENCE. Accordingly, Petitioner's Motion to Vacate Docket No. 1 is hereby DENIED. Signed by Judge Daniel R. Dominguez on 2/27/2015. (MM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MELVIN ACEVEDO-HERNANDEZ,
Petitioner,
v.
Civil No. 12-1763(DRD)
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
Pending before the Court are: Petitioner Melvin AcevedoHernandez’s (“Petitioner” or “Acevedo”) Motion to Vacate, Set
Aside, or Correct Sentence (Docket No. 1) pursuant to 28 U.S.C.
§
2255;
Vacate
(Docket
United
His
States’
Conviction
No.
10);
Opposition
and
and
Sentence
to
Petitioner’s
under
Magistrate
28
Judge’s
Motion
U.S.C.
to
§
2255
Report
and
Recommendation (Docket No. 13).
For the reasons elucidated below, the Court hereby ADOPTS
IN TOTO the Magistrate Judge’s Report and Recommendation (Docket
No. 13) and DENIES Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence (Docket No. 1).
I. REFERRAL TO THE MAGISTRATE JUDGE
The Court may refer dispositive motions to a United States
Magistrate Judge for a Report and Recommendation pursuant to 28
U.S.C. §636(b)(1)(B).
See FED. R. CIV. P. 72(b); see also Local
1
Rule
72(a);
(1976).
Matthews
An
v.
Weber,
adversely
423
U.S.
party
affected
261,
96
may
S.Ct.
contest
549
the
Magistrate’s Report and Recommendation by filing its objections.
FED. R. CIV. P.
72(b).
Moreover,
28
U.S.C.
§636(b)(1),
in
pertinent part, provides that
any party may serve and file written
objections to such proposed findings and
recommendations as provided by rules of
court. A judge of the court shall make a de
novo determination of those portions of the
report or specified proposed findings or
recommendations to which objection is made.
A judge of the court may accept, reject, or
modify, in whole or in part, the findings or
recommendations made by the magistrate.
“Absent objection, . . . [a] district court ha[s] a right
to assume that [the affected party] agree[s] to the magistrate’s
recommendation.”
247
(1st
Cir.
Templeman v. Chris Craft Corp., 770 F.2d 245,
1985),
cert
denied,
474
U.S.
1021
(1985).
Additionally, “failure to raise objections to the Report and
Recommendation
waives
that
party’s
right
to
review
in
the
district court and those claims not preserved by such objections
are precluded upon appeal.”
Davet v. Maccarone, 973 F.2d 22,
30-31 (1st Cir. 1992); see Henley Drilling Co. v. McGee, 36 F.3d
143,
150-51
required
when
(1st
Cir.
1994)
challenging
(holding
findings
that
actually
objections
set
out
are
in
a
magistrate’s recommendation, as well as the magistrate’s failure
to
make
additional
findings);
see
2
also
Lewry
v.
Town
of
Standish,
984
“[o]bjection
F.2d
to
a
25,
27
(1st
magistrate’s
Cir.
report
1993)(stating
preserves
only
that
those
objections that are specified”); Borden v. Sec. of H.H.S., 836
F.2d 4, 6 (1st Cir. 1987)(holding that appellant was entitled to
a de novo review, “however he was not entitled to a de novo
review of an argument never raised”).
The Court, in order to accept unopposed portions of the
Magistrate Judge’s Report and Recommendation, need only satisfy
itself that there is no “plain error” on the face of the record.
See Douglass v. United Servs. Auto, Ass’n, 79 F.3d 1415, 1419
(5th Cir. 1996)(en banc)(extending the deferential “plain error”
standard of review to the un-objected to legal conclusions of a
magistrate judge); see also Nettles v. Wainwright, 677 F.2d 404,
410
(5th
Cir.
acceptance
reviewed
1982)(en
of
un-objected
for
“plain
banc)(appeal
to
error”);
from
findings
see
also
of
district
court’s
magistrate
judge
Nogueras-Cartagena
v.
United States, 172 F.Supp. 2d 296, 305 (D.P.R. 2001)(finding
that
the
“Court
reviews
Recommendation
to
recommendation
was
[unopposed]
ascertain
clearly
whether
Magistrate’s
or
not
the
erroneous”)(adopting
Report
and
Magistrate’s
the
Advisory
Committee note regarding FED.R.CIV.P. 72(b)); see also Garcia v.
I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa. 1990)(finding that “when
no objections are filed, the district court need only review the
record for plain error”).
3
In the instant case, Petitioner has not filed objections to
the Magistrate Judge’s Report and Recommendation.
Thus, the
Court will review the Magistrate’s Report and Recommendation for
plain error.
After a careful analysis, the Court finds no “plain error”
in the unobjected-to Factual and Procedural Background section
of
the
rather
Magistrate
than
Judge’s
repeating
and
set
the
Report
facts
of
Recommendation.
that
pertain
Thus,
to
the
instant case in their entirety, the Court hereby ACCEPTS, ADOPTS
AND INCORPORATES by reference the Magistrate Judge’s findings of
fact in toto, noting particularly that they remain unchallenged.
II.
ANALYSIS
Petitioner’s argument in support of a reduction of sentence
is two-fold.
First, Petitioner avers that he only conspired
with a government agent, and no one else, to distribute cocaine,
thereby making it legally impossible for him to have partaken in
a
conspiracy,
as
government
members of a conspiracy.
informants
cannot
be
considered
Second, Petitioner contends that the
United States engaged in sentence factor manipulation when the
government informant allegedly urged the Petitioner to bring a
firearm to the site of the drug deal.
At
the
Magistrate
outset,
Judge
the
Court
Arenas’
stresses
determination
that
it
that
agrees
with
Petitioner’s
arguments are deemed procedurally defaulted, as Petitioner did
4
not raise the claims discussed herein at trial nor on direct
review.
See Oakes v. United States, 400 F.3d 92, 95 (1st Cir.
2005)(“If a federal habeas petitioner challenges his conviction
or
sentence
on
a
ground
that
he
did
not
advance
on
appeal, his claim is deemed procedurally defected.”).
direct
In cases
of this nature, a district court may entertain the petitioner’s
request for the first time “only if the petitioner has ‘cause’
for
having
procedurally
defaulted
his
claims,
and
if
the
petitioner suffered ‘actual prejudice’ from the errors of which
he complains,” neither of which are present here.
Owens v.
United States, 483 F.3d 48, 56-57 (1st Cir. 2007)(citing United
States v. Frady, 456 U.S. 152, 168 (1982) and Knight v. United
States, 37 F.3d 769, 774 (1st Cir. 1994)).
The Court briefly
explains.
Conspiracy Theory
The Court concurs with the Magistrate Judge’s determination
that Petitioner’s argument regarding the conspiracy charge is
flawed.
Although government agents are not considered to be
part of a conspiracy, said rule is relevant “only in situations
where
the
government
conspiracy
informer.
involves
In
that
only
[one]
situation
defendant
there
can
and
be
a
no
conspiracy because it takes two to conspire....” United States
v. Ciresi, 697 F.3d 19, 28 n.5 (1st Cir. 2012)(citing United
States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987) (alteration in
5
original) (citation omitted) (quoting United States v. Martino,
648 F.2d 367, 405 (5th Cir. 1981)) (internal quotation marks
omitted).
As the Magistrate Judge correctly indicated, the plurality
requirement in the case at bar is satisfied by the participation
of
two
“true”
conspirators,
Angel Torres Figueroa.
the
Petitioner
and
co-defendant
In his Plea Agreement (Criminal No. 10-
310, Docket No. 199), the Petitioner, under penalty of perjury,
admitted to knowingly conspiring with Angel Torres Figueroa to
possess with the intent to distribute five (5) kilograms or more
of cocaine.
See Criminal No. 10-310, Docket No. 199.
He and
Angel Torres Figueroa were tasked with providing protection to
the purported seller of approximately twelve (12) kilograms of
sham cocaine at a villa in Dorado, Puerto Rico on April 8, 2009.
The Petitioner admitted being armed with a firearm during the
simulated drug transaction and confessed being paid $2,000.00
for his participation.
Accordingly, Petitioner’s assertion that he was the sole
participant
in
the
conspiracy
is
unavailing,
as
he
admitted
working in conjunction with co-defendant Angel Torres Figueroa
to advance a common goal, i.e., to provide protection to the
seller of cocaine.
That the ultimate goal of the conspiracy was
unaccomplished is irrelevant.
6
Sentence Manipulation: The Reverse Sting Operation
In a similar fashion, the Court finds that there was no
sentence factor manipulation.
As the Magistrate Judge correctly
noted, sentence factor manipulation of the variety advanced by
Petitioner
occurs
when
the
authorities
“venture
outside
the
scope of legitimate investigation and engage in extraordinary
misconduct that improperly enlarges the scope or scale of the
crime.”
United States v. Sanchez-Berrios, 424 F.3d 65, 78-79
(1st Cir. 2005)(internal citations and quotations omitted).
The
facts
in
the
instant
case
rise
to
“the
level
of
manipulation inherent in virtually any sting operation-and that
is not enough to warrant a downward departure.”
Id.
The facts
simply show that the government agent asked the Petitioner to
bring a weapon with him to the villa where the drug transaction
would ensue, a request, complied with by the Defendant, that is
inherent in almost all drug sting operations.
agrees
with
Magistrate
Judge
Arenas’
Thus, the Court
determination
that
the
government informant did not engage in sentence manipulation.1
1
Lastly, the Petitioner stresses that his attorney provided ineffective
assistance of counsel by failing to advance Petitioner’s two contentions
before the district court.
Under the Strickland test, Petitioner has the burden of showing that
(1) counsel’s performance fell below an objective standard of reasonableness,
and (2) there is a reasonable probability that, but for counsel’s error, the
result of the proceedings would have been different.
Padilla v. Kentucky,
559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688)); see
Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996); Scarpa v.
Dubois, 38 F.3d 1, 8 (1st Cir. 1994); López-Nieves v. United States, 917 F.2d
645, 648 (1st Cir. 1990) (citing Strickland, 466 U.S. at 687). There is no
doubt that Strickland also applies to representation outside of the trial
7
III. CONCLUSION
For
the
reasons
elucidated
in
the
instant
Opinion
and
Order, the Court hereby ADOPTS the Magistrate Judge’s Report and
Recommendation
(Docket
No.
13)
IN
TOTO
and
INCORPORATES
IT
HEREIN BY REFERENCE. Accordingly, Petitioner’s Motion to Vacate
(Docket No. 1) is hereby DENIED.
It is further ordered that no certificate of appealability
should be issued in the event that Petitioner files a notice of
appeal because there is no substantial showing of the denial of
a constitutional or statutory right within the meaning of 28
U.S.C. § 2253(c)(3).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 27th day of February, 2015.
s/ Daniel R. Dominguez
DANIEL R. DOMINGUEZ
U.S. DISTRICT JUDGE
setting, which would include plea bargains, sentence and appeal. See Missouri
v. Frye, 132 S. Ct. 1399, 1408-10, 182 L. Ed. 2d 379 (2012); Lafler v.
Cooper, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012); Hill v. Lockhart, 474 U.S.
52, 57 (1985).
Since the Court has already determined that both of Petitioner’s
contentions are totally meritless, as the errors alleged encompass facts that
the Defendant accepted and were not under the control of counsel, it cannot
be said that counsel’s performance fell below an objective standard of
reasonableness.
8
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