Laureano-Perez v. USA

Filing 10

OPINION AND ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 12-426(ADC)) filed by Juan M. Laureano-Perez. The Court hereby GRANTS petitioner relief under Ground One of his application pursuant to 28 U.S.C. § 2255(a). The Court hereby ORDERS that the judgment of conviction in the underlying criminal case (No. 12-426 (ADC)) be amended by imposing a concurrent sentence of twenty years of imprisonment, to be followed by a concurrent term of three yea rs of supervised release, on petitioner's conviction of Count Nine, 18 U.S.C. § 924(o). All of the other sentences in the judgment are to remain unchanged. The amended judgment shall run nunc pro tunc to September 12, 2013, the date of the original judgment. There being no pending issues, the case at bar is closed. Signed by Chief Judge Aida M. Delgado-Colon on 4/19/2017.(wm)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JUAN M. LAUREANO-PÉREZ,
Petitioner,
Civil No. 16-2688 (ADC)
[Related to Crim. No. 12-426-5 (ADC)]

v.
UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
By an Opinion and Order, dated March 2, 2017, the Court summarily dismissed, without
subsequent objection, Grounds Two, Three, and Four of petitioner Juan M. Laureano-Pérez’s
timely motion for relief pursuant to 28 U.S.C. § 2255(a). See ECF No. 4. The Court also ordered
the Government to respond to Ground One of the motion, which stated that the Court had erred
by failing to impose individual sentences on petitioner’s two conspiracy convictions. Id. at 3-4,
10. Indeed, the Court had imposed a single sentence of life imprisonment on petitioner’s drugconspiracy and firearm-conspiracy convictions, even though the latter had a maximum legallyauthorized sentence of only twenty years in prison. See 18 U.S.C. § 924(o); ECF No. 4 at 1, 3-4.
The Government has now responded to Ground One, conceding error and inviting an amended
judgment imposing a prison term of twenty years, to be followed by a supervised-release term
of no more than three years, on petitioner’s firearm-conspiracy conviction. His other sentences
would remain the same. See ECF No. 6. Petitioner has filed a pro-se reply. See ECF No. 9.

Civil No. 16-2688 (ADC)

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In his reply, petitioner objects to the Government’s proposal to remedy the sentencing
error below by issuing an amended judgment imposing an individual sentence on his firearmconspiracy conviction, but leaving his other sentences undisturbed. 1 Id. at 4. Instead, petitioner
wants the Court to resentence him on both conspiracy counts because the Court might decide
to resentence him to a non-life prison term on the drug-conspiracy count in light of his alleged
post-sentence rehabilitation and considerations of substantive reasonableness. Id. at 3-7.
Because the parties agree that a sentencing error occurred, the Court must determine the
appropriate remedy, if any. The First Circuit Court of Appeals has “not adopted a uniform rule
about whether, without a preserved claim of error, a defendant who is sentenced to a term of
imprisonment in excess of a statutory maximum is entitled to relief even though his overall
period of immurement will not be affected.” United States v. Almonte-Nuñez, 771 F.3d 84, 92 (1st
Cir. 2014). Almonte-Nuñez, however, provides helpful guidance about the type of relief that may
be appropriate when a court does grant relief. In Almonte-Nuñez, as in this case, a firearm count
and a different count were grouped together by the sentencing court to calculate the applicable
offense level. See id. at 91-92; Transcript of Sentence, United States v. Laureano-Pérez, No. 12-CR426-5 (D.P.R. Apr. 9, 2014), ECF No. 1181 at 35. In both cases, the guidelines sentencing range

1 “We are required to construe liberally a pro se [filing],” but “pro se status does not insulate a party
from complying with procedural and substantive law.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
In the underlying case, petitioner was also convicted of possessing a machinegun in furtherance of a
drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A), (B)(ii). His challenges to his sentence on that conviction were
summarily dismissed, see ECF No. 4 at 6, 8-10, and are no longer before the Court.

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recommended a prison term greater than the maximum authorized by Congress for the firearm
count. See id. Finally, in both cases, the sentencing court imposed a single sentence on the counts
that fell within the guidelines sentencing range, resulting in a prison term on the firearm count
in excess of the statutory maximum. See id. In Almonte-Nuñez, the Court of Appeals, reviewing
the situation on direct appeal, remedied the sentencing error by “direct[ing] the district court,
on remand, to enter a modified sentence of 120 months [i.e., the statutory maximum] on [the
firearm] count.” 771 F.3d at 92 (citing United States v. Barnes, 251 F.3d 251, 261 (1st Cir. 2001)).
Notably, “direct review is more defendant-friendly than post-judgment review,” which is the
current posture of this case. United States v. George, 676 F.3d 249, 258 (1st Cir. 2012). As indicated
above, entry of an amended judgment, analogous to the one that the Court of Appeals mandated
in Almonte-Nuñez, is the Government’s preferred remedy. ECF No. 6 at 5. By contrast, petitioner
requests a plenary resentence on both of his conspiracy counts. ECF No. 9 at 4-8.
“The § 2255 remedy is broad and flexible, and entrusts to the courts the power to fashion
an appropriate remedy.” United States v. Torres-Otero, 232 F.3d 24, 30 (1st Cir. 2000) (quoting
United States v. García, 956 F.2d 41, 45 (4th Cir. 1992)); see also 28 U.S.C. § 2255(b) (providing that,
if a court grants relief under this section, “the court shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may
appear appropriate.”). “[I]n cases,” like this, “where the sentence (but not the conviction) is
infirm, only the ‘resentencing’ or ‘correcting the sentence’ options are open to the district court,”

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under 28 U.S.C. § 2255(b), “since a prisoner should never be ‘discharged’ or ‘granted a new trial’
based solely on a defective sentence.” Torres-Otero, 232 F.3d at 30. The Court is afforded “broad
leeway” in determining which option to elect and how to exercise the option. Id. For example,
the Court may “decline[] to reexamine the sentence” in toto and simply “remedy” the identified
“defect” without “sentencing the [petitioner] afresh.” United States v. Maldonado, 242 F.3d 1, 3
(1st Cir. 2001) (citing Torres-Otero, 232 F.3d at 30-31). After all, “it is a windfall to a [petitioner]
if in resentencing the district court goes beyond correction of the original error and gives [him]
a lower sentence by virtue of a new calculation on an unrelated aspect of the sentence.” Id. In
the end, however, the decision to either simply correct the identified sentencing error or conduct
a broader resentencing is left to the discretion of the Court. Id. at 3-4.
Here, the Court shall provide the same remedy that the Court of Appeals did, on direct
review, in Almonte-Nuñez and will order that the underlying judgment be amended to impose
an individual sentence on petitioner’s firearm-conspiracy conviction (Count Nine). Specifically,
the Court will order imposition of a concurrent sentence of twenty years of imprisonment, to be
followed by a concurrent term of three years of post-release supervision, which is the maximum
legally-authorized sentence. See 18 U.S.C. §§ 924(o), 3583(b)(2). This individual sentence will
be lower than the sentence originally imposed on the conviction and, thus, petitioner’s “overall
period of immurement will not be affected.” Almonte-Nuñez, 771 F.3d 84, 92. The sentence will
be ordered to run nunc pro tunc to September 12, 2013, the date that the original sentence was

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imposed. The Court has considered petitioner’s arguments in his reply, see ECF No. 9, and finds
no basis for any further sentencing relief pursuant to 28 U.S.C. § 2255.
Finally, the Court must decide whether petitioner needs to be present for the amendment
of the underlying judgment. See United States v. Bryant, 643 F.3d 28, 32-34 (1st Cir. 2011). “Any
alteration of the original judgment imposing the sentence could be called a ‘resentencing’ – the
word has no definitive meaning – but whether the [petitioner’s] presence and an opportunity to
allocute are required has in practice turned on whether requiring these safeguards made sense
in the context of the proceedings.” Id. at 32. “At one extreme, the resentencing ordered may be
as unconstrained and open-ended as an initial sentencing; but at the other extreme, [it] may be
so focused and limited that it involves merely a technical revision of the sentence . . . and calls
for no formal proceeding – say, modifying the judgment to cut back to its legally permitted
length a supervised release term that exceeded what the statute permits.” Id.
In determining whether a proceeding must be held and the petitioner must be present,
the Court must ask just what is “open” to the sentencing court. Id. at 33. Here, nothing is open
except for the entry of an amended judgment pursuant to the specific terms of the Court’s Order.
In fact, the relief granted by the Court will be so specific as to “render evidence of postsentencing
rehabilitation irrelevant.” Id. at 34 (quoting Pepper v. United States, 562 U.S. 476, 505 n.17 (2011)).
All that the amendment of the judgment will entail is a reduction of the terms of imprisonment
and supervised release imposed on Count Nine to “the maximum” allowed by statute. United

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States v. Barnes, 244 F.3d 172, 178 (1st Cir. 2001). “This reduction can, of course, be accomplished
without either disturbing the remainder of the sentence or reconvening the disposition hearing.”
Id. (citing United States v. Jackson, 923 F.2d 1494, 1496-97 (11th Cir. 1991) (holding that remand
for correction of illegal sentence does not require defendant’s presence if correction palliates the
sentence)). After all, “[i]n constitutional terms, a remedial sentence reduction is not a critical
stage of the proceedings; so, the defendant’s presence is not required.” Jackson, 923 F.2d at 1497;
see also United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996) (per Posner, C.J.) (holding that a
prisoner does not have a right to be present when “the case is remanded not for a new sentencing
hearing but merely for a nondiscretionary correction of the original sentence.”).
In sum, the Court hereby GRANTS petitioner relief under Ground One of his application
pursuant to 28 U.S.C. § 2255(a). See ECF No. 1. The Court hereby ORDERS that the judgment
of conviction in the underlying criminal case (No. 12-426 (ADC)) be amended by imposing a
concurrent sentence of twenty years of imprisonment, to be followed by a concurrent term of
three years of supervised release, on petitioner’s conviction of Count Nine, 18 U.S.C. § 924(o).
All of the other sentences in the judgment are to remain unchanged. The amended judgment
shall run nunc pro tunc to September 12, 2013, the date of the original judgment.
When entering a final order that is partially adverse to a Section 2255 petitioner, the Court
must decide if he warrants a certificate of appealability. The Court may issue one only upon “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Buck

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v. Davis, 137 S. Ct. 759, 773 (2017). Petitioner made no such showing. Thus, the Court will not
grant a certificate. Rule 11(a) of the Rules Governing Section 2255 Proceedings. Petitioner may
still seek one from the Court of Appeals under Federal Rule of Appellate Procedure 22(b)(1).
There being no pending issues, the case at bar is closed.
SO ORDERED.
At San Juan, Puerto Rico, on this 19th day of April, 2017.
S/AIDA M. DELGADO-COLÓN
Chief United States District Judge