Baerga-Suárez v. United States
| Decision Date | 01 July 2014 |
| Docket Number | Crim. No. 06–086ADC.,Civ. No. 11–1352ADC. |
| Citation | 30 F.Supp.3d 91 |
| Parties | Jean Pierre BAERGA–SUÁREZ, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Jean Pierre Baerga–Suarez, Bayamon, PR, pro se.
Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.
Presently pending before the Court is petitioner Jean Pierre Baerga–Suárez's (“petitioner”) motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.A. § 2255 (“§ 2255 ”). ECF No. 1. Petitioner filed his § 2255 motion on April 18, 2011. Id. On December 2, 2011, the government filed a response in opposition to petitioner's motion. ECF No. 8. On January 12, 2012, petitioner's motion was referred to Magistrate Judge Justo Arenas for Report and Recommendation (R & R). ECF No. 11. On February 3, 2012, the Magistrate Judge issued the R & R. ECF No. 14. On February 27, 2012, petitioner presented his objections to the R & R's findings. ECF No. 15.
Petitioner was indicted on March 6, 2006, along with five other defendants, in a ten-count indictment. Crim. No. 06–086, ECF No. 21. Petitioner was charged with all counts, including a charge of conspiracy, substantive narcotics drug offenses, and possession of a machine gun with an obliterated serial number. Id.
On October 19, 2006, during a change of plea hearing, petitioner pleaded guilty to Counts One and Ten of the ten-count indictment1 . Crim. No. 06–086, ECF No. 148 & 149. According to the plea agreement signed by petitioner, the remaining counts were to be dismissed at the time of sentence. Crim. No. 06–086, ECF No. 148.
With regards to sentencing, the terms of the plea agreement as to Count One specified a base offense level of 28, pursuant to U.S.S.G. § 2D1.1 ; a three level reduction for accepting responsibility for the offense pursuant to U.S.S.G. § 3E1.1(a) & (b); and a two level increase for leadership pursuant to U.S.S.G. § 3B1.1(c). Id. at 5. After computations, the total offense level for Count One was calculated in the agreement as 27, corresponding to a guideline sentencing range between 70 and 87 months. Id. Relating to Count Ten, the terms of the plea agreement specified a base offense level of 22, pursuant to U.S.S.G. § 2K2.1(a)(4)(B) ; a three level reduction accepting responsibility for the offense pursuant to U.S.S.G. § 3E1.1(a) & (b); and a two level increase for obliterated serial number pursuant to U.S.S.G. § 2K2.1(b)(4). Id. After computations, the total offense level for Count Ten was calculated as 21, corresponding to a sentencing range of between 37 and 46 months.Id. at 6.
The plea agreement assumed, although it did not stipulate, a Criminal History Category (“CHC”) of I. Id. However, after the Pre–Sentence Investigation, petitioner was considered to have a CHC of III. Crim. No. 06–086, ECF No. 191.
On April 17, 2011, at the sentencing hearing, defense counsel objected to the Criminal History Category findings in the Pre–Sentence Report (“PSR”). Crim. No. 06–086, ECF No. 219. Counsel had already submitted written objections to the PSR. Crim. No. 06–086, ECF No. 189. Ultimately, the Court found that petitioner had a CHC of III, which called for an imprisonment range of 87–108 months for Count One and 46–57 months for Count Ten. Crim. No. 06–086, ECF No. 219. Thus, the Court sentenced petitioner to 108 months of imprisonment as to Count One and 60 months as to Count Ten, to be served concurrently with each other, but consecutively to a state court sentence imposed by the Guayama Superior Court on March 16, 2007 in criminal cases GIS2006G0010 and GIS2006G0011. Id.
On April 27, 2007, petitioner filed a notice of appeal. Crim. No. 06–086, ECF No. 203. In the appeal, petitioner claimed that during the change of plea hearing, the sentencing court failed to explain that if he proceeded to trial, the government would have to prove his guilt beyond a reasonable doubt. Crim. No. 06–086, ECF No. 237. On July 10, 2008, judgment was entered by the United States Court of Appeals for the First Circuit affirming the conviction pursuant to 1st. Cir. R. 27.0(c) and finding that the record of the change of plea hearing demonstrated that the sentencing court clearly spelled out the burden of proof and that petitioner understood2 . Id.
On April 18, 2011, petitioner filed the presently pending motion to vacate, set aside or correct sentence pursuant to 28 U.S.C.A. § 2255. ECF No. 1. Petitioner claims that the district court abused its discretion when it improperly enhanced defendant's sentence based upon allegedly false information in the PSR as to his personal background. Id. Petitioner also argues that the government breached the plea agreement because the plea stipulated a sentence of 70–80 months for Count One and 37–46 months for Count Ten, yet petitioner received 108 months for Count One and 60 months for Count Ten. Id. He further accuses the government of prosecutorial misconduct for failing to provide discovery, favorable evidence and all Brady materials.3 Id. Finally, petitioner asserts ineffective assistance of counsel because counsel failed to object to the false information in the PSR during the sentencing hearing. Id. For these reasons, petitioner requests the sentence be vacated and that he be re-sentenced. Id.
On December 2, 2011, the government filed a response in opposition to petitioner's motion arguing that it should be summarily denied. ECF No. 8. The government argues that denial is appropriate because the arguments are primarily perfunctory, particularly in relation to the allegations of ineffective assistance of counsel and the change of plea and sentencing proceedings. Id. The government specifies that it is unable to glean from petitioner's allegations exactly what rights were violated, what information was not disclosed, what conduct of counsel was ineffective, what misconduct occurred, and what information in the Pre–Sentence Report was false. Id.
On January 12, 2012, petitioner's motion was referred to Magistrate Judge Justo Arenas for a Report and Recommendation (“R & R”). ECF No. 11. On February 3, 2012, an R & R was issued denying petitioner's motion to vacate his sentence. ECF No. 14. The R & R determined that petitioner failed to establish that counsel provided ineffective assistance or that the alleged deficiencies by counsel caused the petitioner any prejudice in the criminal proceedings. Id. The R & R notes that counsel negotiated a favorable plea for the petitioner considering that a functional machine gun was involved and that furthermore, there is no evidence to suggest that the attorney's representation fell below an objective standard of reasonableness. Id. In addition, the R & R found that the government did not breach the plea agreement. Id. Petitioner was made aware that the Court was not bound by the plea agreement and he was sentenced in accordance with the conditions of the plea agreement. Id. Finally, the R & R found that petitioner's prosecutorial misconduct claim was without merit because petitioner failed to specify or even hint at what materials the government failed to disclose. Id.
On February 27, 2012, petitioner submitted his objections to the R & R. ECF No. 15. In his objections, petitioner first argues that he was unable to present evidence related to allegedly false information in the PSR. Id. Moreover, petitioner asserts that the district court abused its discretion by improperly adding two points to his base offense level for possession of a weapon with an obliterated serial number and transferring those two points to the sentence for Count One, which was an unrelated count not connected to gun possession. Id. Petitioner also states that the government was aware of his prior convictions, and thus, intentionally lulled him into a plea agreement that would not reflect the final sentence. Id.
Having considered the R & R and petitioner's objections, the Court hereby DENIES petitioner's motion to set aside or vacate sentence (ECF No. 1 ) for the reasons set forth below.
Under 28 U.S.C.A. § 2255, a prisoner in federal custody may petition the sentencing court to “vacate, set aside, or correct his sentence on the grounds that the court had imposed a sentence in violation of federal law.” Ellis v. United States, 313 F.3d 636, 641 (1st Cir.2002). A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner is in custody under the sentence of a federal court. See 28 U.S.C.A. § 2255. A federal prisoner may challenge his or her sentence on the ground that inter alia, it “was imposed in violation of the Constitution or the laws of the United States.” Id.
Because petitioner appears pro se, the Court construes his pleadings more liberally than those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Nevertheless, petitioner's pro se status does not excuse compliance with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.1997).
A district court may refer pending motions to a magistrate judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B) ; Fed.R.Civ.P. 72(b) ; D.P.R. Civ. R. 72(a). Any party adversely affected by the recommendation issued may file written objections within fourteen (14) days of being served with the report and recommendation. 28 U.S.C. § 636(b)(1) ; Fed.R.Civ.P. 72(b) ; D.P.R. Civ. R. 72(d). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.”Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191–92 (D.P.R.2005) (citing U.S. v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980) ). The objections must...
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