LNU v. USA

Filing 28

OPINION AND ORDER denying 1 Motion to Vacate and dismissing case with prejudice. Final judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 12/14/2018. (NNR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Angel Betancourt-Perez,
Petitioner,

CIVIL NO. 18-1088 (PG)
Related Crim. No. 10-175 (PG)

v.
United States of America,
Respondent.

OPINION AND ORDER
Before the court is petitioner Angel Betancourt-Perez’s (“Petitioner” or “BetancourtPerez”) motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket
No. 1) and the United States’ (or the “government”) opposition thereto (Docket No. 16). For
the following reasons, the court DENIES Petitioner’s motion to vacate.
I.

BACKGROUND

Betancourt-Perez was indicted in three separate criminal cases. First, on May 5, 2010,
a grand jury returned a multi-count indictment against Betancourt-Perez and sixty-nine (69)
other coconspirators charging them with several drug and firearm-related offenses. See
Crim. Case No. 10-175 (PG), Docket No. 3. Count One charged Betancourt-Perez with
conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C.
§§ 841(a)(1), 846, and 860. See Crim. No. 10-175, Docket No. 3. The indictment deemed
Petitioner a runner for a drug trafficking organization (“DTO”) that sold crack, heroin,
cocaine, marijuana, Percocet, and Xanax at a public housing project in Carolina, Puerto Rico
and its surrounding areas. Id. Petitioner remained a fugitive until his arrest in May of 2011.

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On May 12, 2011, a grand jury returned the second indictment against BetancourtPerez. He was charged with possession with intent to distribute cocaine and marijuana, in
violation of 21 U.S.C. §§ 841(a)(1) and(b), and possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). See Crim. No. 11-181 (PG),
Docket No. 1. On September 23, 2011, Betancourt-Perez was indicted in a third criminal case
and charged with possession with intent to distribute more than 1,000 kilograms of
marijuana. See Crim. No. 11-367 (PG), Docket No. 3.
Plea & Sentencing
Betancourt-Perez and the government negotiated a plea deal that took care of all the
charges in all three of his criminal cases. See Crim. No. 10-175, Docket No. 1985 (Plea
Agreement). Specifically, Betancourt-Perez agreed to plead guilty to one count of conspiracy
to possess with intent to distribute narcotics from each of the three indictments (Crim. No.
10-175, 11-181 and 11-367) and the firearm count from the second indictment (Crim. No. 11181). The plea agreement specified the following types and quantities of drugs involved in
each of the conspiracy counts: between 3.5 and 5 kilograms of cocaine, between 2 and 3.5
kilograms of cocaine, and between 100 and 400 kilograms of marijuana. See id. at pp. 6-10.
Based on the relatedness of the drug crimes, the agreement grouped the three conspiracy
counts together for plea and sentencing purposes pursuant to Section 3D1.2(b) and (d) of
the United States Sentencing Guidelines (“U.S.S.G.”) and calculated, albeit incorrectly, a
guideline sentence range of 51 to 63 months. 1 See id. at 10-11.

1 Again, this calculation was incorrect, and the First Circuit Court of Appeals explained why. See United
States v. Betancourt-Perez, 833 F.3d 18, 20-22 & n. 4 (1st Cir. 2016). The court adopts and incorporates by
reference that explanation herein.

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The parties agreed to recommend concurrent sentences between 60 to 120 months
for the conspiracy counts and a consecutive sentence of 60 months for the firearm count.
See id. Pursuant to Federal Criminal Procedure Rule 11(c)(1), the agreement warned that:
The defendant is aware that the defendant’s sentence is within
the sound discretion of the sentencing judge and the advisory
Sentencing Guidelines …. The defendant understands and
acknowledges that the Court is not a party to this Plea Agreement
and thus, is not bound by this agreement or the sentencing
calculations and/or recommendations contained herein.
Defendant specifically acknowledges and admits that the Court
has jurisdiction and authority to impose any sentence within the
statutory maximum set for the offense to which the defendant
pleads guilty. Defendant is aware that the court may accept or
reject the Plea Agreement, or may defer its decision…until it has
considered the pre-sentence report. Should the Court impose a
sentence up to the maximum established by statute, the
defendant cannot, for that reason alone, withdraw a guilty plea,
and will remain bound to fulfill all of the obligations under this
Plea Agreement.
Id. at p. 6.
Furthermore, the agreement included the following appeal waiver provision:
The defendant knowingly and voluntarily waives the right to
appeal the judgment and sentence in this case, provided that the
defendant is sentenced in accordance with the terms and
conditions set forth in the Sentence Recommendation provisions
of this Plea Agreement.
Id. at p. 11.
Petitioner entered his guilty plea at the change of plea hearing held on October 18,
2013. See Crim. Case No. 10-175, Dockets No. 1987 and 2054. On April 11, 2014, the court
sentenced Betancourt-Perez to 108 months of imprisonment as to each conspiracy count, 2
to be served concurrently with each other, and to 60 months on the firearm count, to be

2 The court reasoned that the sentenced imposed was still within the 60-to-120-month range stipulated
by the parties in the plea agreement. See Crim. No. 10-175, Docket No. 2007.

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served consecutively. Altogether, he was sentenced to a total term of 168 months of
imprisonment.
Post-Conviction Proceedings
On appeal, Betancourt-Perez challenged the court’s refusal to follow the plea
agreement’s guideline calculations at sentencing. 3 See Betancourt-Perez, 833 F.3d at 21.
Nonetheless, the First Circuit determined that Petitioner’s sentence fell within the
parameters of the parties’ recommendations by way of a correct arithmetic, and therefore,
within the plea agreement’s appeal waiver. Furthermore, the First Circuit highlighted that
Betancourt-Perez expressly acknowledged (in both the plea agreement and during his
change-of-plea hearing) that the parties’ guideline calculations were not binding on the
sentencing court. See id. at 23. The Court thus dismissed the appeal. Id. at 24.
On February 14, 2018, Betancourt-Perez filed the pending motion to vacate under §
2255, seeking to vacate his sentence on ineffective assistance of counsel grounds. See Docket
No. 1. Mainly, he claims that attorney Jose R. Olmo Rodriguez, who represented him in the
underlying criminal proceedings, failed to adequately explain the applicable sentencing
guidelines. 4 See Docket No. 1-1 at 7-8. In its response, the government correctly argues that

Unlike the plea agreement, the Presentence Investigation Report (“PSR”) prepared prior to
sentencing included the correct guideline ranges for the court to consider. On appeal, the First Circuit
concluded not only that this court applied the correctly calculated guideline range, but also, that the ultimate
168-month imprisonment sentence fell within the parameters of the parties’ recommendation. See BetancourtPerez, 833 F.3d at 21-22.
3

Betancourt-Perez’s motion raises at least two other claims. First, he alleges that counsel’s
performance led him to withdraw a pending motion to suppress and waive to waive his Fourth Amendment
rights. Second, he challenges the court’s “wrongful exclusion of evidence that was crucial to his defense[.]”
Docket No. 1-1 at p. 3. Petitioner fails to develop both claims. Therefore, they are deemed waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.”).
4

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Betancourt-Perez fails to satisfy Strickland’s two-prong test, and therefore, his ineffective
assistance claims fails. See Docket No. 16 at p. 6.
After a careful review of the evidence on record, the plea agreement and the
transcripts of the change of plea and sentencing hearings, the court denies Petitioner’s
motion for the reasons explained below.
II.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or
correct his sentence “upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); Hill v. United States, 368 U.S.
424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).
Moreover, the Sixth Amendment guarantees that in all criminal prosecutions, the
accused have a right to the assistance of counsel for their defense. U.S. Const. amend. VI. It
has long been recognized that the right to counsel means the right to the effective legal
assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n. 14 (1970)). Where, as here, the petitioner moves to vacate
his sentence on an ineffective assistance of counsel basis, he must show that “counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied upon as having produced a just result.” Strickland, 466 U.S. at 686; see also
Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996) (a petitioner seeking to vacate his
sentence based on the ineffective assistance of counsel bears a very heavy burden).

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For Betancourt-Perez’s claim to succeed, he must satisfy a two-part test. First, he
needs to show that “counsel’s representation ‘fell below an objective standard of
reasonableness.’” Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010) (quoting Strickland, 466
U.S. at 688). Second, he needs to establish a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been more favorable to him. See United
States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013) (citing Missouri v. Frye, 132 S. Ct. 1399,
1409 (2012)). Petitioner must demonstrate both incompetence and prejudice and failure to
prove one element proves fatal for the other. See United States v. Caparotta, 676 F.3d 213,
219 (1st Cir. 2012). Courts “need not address both requirements if the evidence as to either
is lacking.” Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007); see Strickland, 466 U.S. at
697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice…that course should be followed.”)
The right to effective assistance of counsel applies at the plea-bargaining stage. See
Padilla, 130 S. Ct. at 1480-81; see also Hill v. Lockhart, 474 U.S. 52 (1985). “It has long been
recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes
of the Sixth Amendment right to effective assistance of counsel.” Id. In advising a client
during the plea-bargaining stage, “[c]ounsel must predict how the facts, as he understands
them, would be viewed by the court.” McMann, 397 U.S. at 769. Even if counsel’s prediction
had been inaccurate, an inaccurate prediction about sentencing will generally not alone be
sufficient to sustain a claim of ineffective assistance of counsel. See Knight v. United States,
37 F.3d 769, 775, (1st Cir. 1994).

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III.

DISCUSSION

As note earlier, Betancourt-Perez claims he received ineffective assistance of counsel
at the plea and sentencing stage because his attorney misinformed him or otherwise failed
to properly advise him with respect to his true sentence exposure. He alleges that because of
counsel’s performance, he plead guilty and received a harsher and longer sentence.
Betancourt-Perez’s weak attempt to support his ineffective performance claim with
the record is unpersuasive at best. In fact, the only instance in which Betancourt-Perez
points to the record, period, is when he cites counsel’s expressions to the court at the
sentencing hearing. See Docket No. 1-1 at p. 8, n. 1. At sentencing, counsel requested the
court to reconsider the sentence by considering the plea agreement’s incorrect calculations.
See Crim. No. 10-175, Docket No. 2023 at pp. 28-29. Responding to counsel’s request, the
court explained that it was not bound by the parties’ calculations and that the sentence
imposed was still within the range stipulated by the parties. Id. at pp. 22-27.
The evidence on record, including the plea agreement and the transcripts from the
change of plea and sentencing hearings, contradicts Petitioner’s allegations. During the
change of plea hearing Betancourt-Perez was placed under oath, addressed personally and
in open court, advised of his constitutional rights and “the fact that [he was] waiving those
rights by pleading guilty.” See Crim. No. 10-175, Docket No. 2054 at p. 17. Petitioner was
aware of the charges against him, he confirmed that he had enough time to confer with
counsel before the hearing, and that he had participated in preparing his defense. Id. at pp.
13-14. Notably, Petitioner also stated that he was satisfied with his attorney’s services. Id.
The evidence further demonstrates that Betancourt-Perez understood the minimum
and maximum statutory penalties, fines and supervised release terms for each of the counts

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he plead guilty to, and the fact that the court had authority and discretion to impose higher
or stricter sentencing terms (up to the maximum provided by statute). Id. 17-24. The court
quotes a relevant portion of the change of plea colloquy below:
The court:

What I want you to understand is that since I am
not part of the plea agreement, it means that I am
not bound by any sentencing guideline
calculations, sentencing stipulations, or sentencing
recommendations which are contained in the plea
agreement; do you understand that?

Betancourt-Perez:

I understand that clearly, Your Honor.
…

The court:

And since I am not part of the plea agreement, it
also means that if I were to impose a term of
imprisonment that turns out to be higher than any
one you might be expecting, that reason alone
would not be grounds for the Court to allow you to
withdraw your pleas of guilty and you would still be
bound by your plea agreement; do you understand
that?

Betancourt-Perez:

I understand.

Id. at 23-24.
The court also asked Betancourt-Perez at least three times if anyone had threatened
or coerced him into pleading guilty, and he replied “no.” See id. at pp. 22 and 30. Upon
further questioning, Betancourt-Perez assured the court that he had discussed the plea
agreement with his attorney, he agreed with its terms, and he was satisfied with his legal
representation. See id. at pp. 14 and 29-31, 36. The court finds Petitioner’s statements at the
plea hearing “sufficiently conclusive to contradict his [ineffective assistance] claims.” See
United States v. Santiago Miranda, 654 F.3d 130, 138 (1st Cir. 2011) (quoting United States
v. Pulido, 556 F.3d 52, 60 (1st Cir. 2009)).

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The First Circuit has held that an attorney’s “failure to properly calculate [a
defendant’s] sentence exposure, by itself, does not amount to prejudice” under Strickland.
Moreno-Espada v. United States, 666 F.3d 60, 65 (1st Cir. 2012) (finding that counsel was
not ineffective for failing to advice or otherwise disclose defendant’s true sentencing
exposure because, inter alia, the harsher sentence ultimately imposed was always within the
range of possible sentences that defendant could face under the plea agreement). Here, even
if counsel’s performance fell below an objective standard of reasonableness on the basis
alleged by Betancourt-Perez, he has not demonstrated prejudice under Strickland.
Again, and as the First Circuit determined, “the text of the plea agreement, as well as
the transcripts from the change-of-plea and sentencing hearings, all make plain that
Betancourt-Perez fully understood” he negotiated for a total sentence between 120 and 180
months. Betancourt-Perez, 833 F.3d at 23. Ultimately, Petitioner received a sentence of 168
months that, even by way of a different (but correct) arithmetic, still abides by the
agreement’s terms. See id.
Because Petitioner has not satisfied the Strickland test, his ineffective assistance of
counsel claim fails.
IV.

EVIDENTIARY HEARING

Betancourt-Perez requests an evidentiary hearing. See Docket No. 1-1 at p. 9.
However, evidentiary hearings in § 2255 cases are the exception, not the norm, and
petitioners carry a heavy burden to demonstrate that a hearing is warranted. See Moreno–
Morales v. United States, 334 F.3d 140 (1st Cir. 2003). A hearing “is not necessary when a §
2255 petition is inadequate on its face, or although facially adequate, is conclusively refuted

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as to the alleged facts by the files and records of the case.” United States v. DiCarlo, 575 F.2d
952, 954 (1st Cir. 1978).
Here, even if the court deemed his motion to vacate as facially adequate, the fact of
the matter is that the record belies his claims. Having ruled that Betancourt-Perez’s
ineffective assistance of counsel claim lacks merit, the court finds that a hearing is not
warranted. Accordingly, his request is DENIED.
V.

CONCLUSION

Based on the foregoing, Petitioner’s request for habeas corpus relief under 28 U.S.C.
§ 2255 (Docket No. 1) is DENIED and the case is, therefore, DISMISSED WITH
PREJUDICE. Judgment shall be entered accordingly.
VI.

CERTIFICATE OF APPEALABILITY

It is further ordered that no certificate of appealability should be issued if Petitioner
files a notice of appeal because there is no substantial showing of the denial of a
constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, December 14, 2018.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
SENIOR U.S. DISTRICT JUDGE