Barreto–Rivera v. United States

• Citation: 887 F.Supp.2d 347
• Decision Date: 31 March 2012
• Docket Number: Civil No. 09–1244(DRD).
• Parties: Jorge Luis BARRETO–RIVERA, Petitioner v. U.S.A., Respondent.
• Court: United States District Courts. 1st Circuit. District of Puerto Rico

887 F.Supp.2d 347

Jorge Luis BARRETO–RIVERA, Petitioner

v.U.S.A., Respondent.

Civil No. 09–1244(DRD).

United States District Court,

D. Puerto Rico.

March 31, 2012.

Jorge Luis Barreto–Rivera, Coleman, FL, pro se.

Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.

OPINION AND ORDER

DANIEL R. DOMINGUEZ, District Judge.

Pending before this Court is a motion filed by petitioner Jorge Luis Barreto–Rivera (“Petitioner”) to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. (Docket No. 1), which was referred to Magistrate Judge Justo Arenas for a Report and Recommendation (Docket No. 10).

Upon review of Magistrate Judge's Report and Recommendation (Docket No. 12) and Plaintiff's opposition thereto (Docket No. 14), the Court hereby ACCEPTS, ADOPTS and INCORPORATES the Report and Recommendation as outlined below and DENIES Petitioner's motion filed under 28 U.S.C. § 2255.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 23, 2006 Petitioner was indicted on an eight-count indictment, charging him and another co-defendant in conspiracy to commit car-jacking (in violation of 18 U.S.C. § 2119(2)), the car-jacking of four vehicles (in violation of 18 U.S.C. § 2119(1) and (2)), and weapon's violations during the car-jackings (in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (c)(2)), all acts which took place from on or about March 4, 2006 thru on or about March 9, 2006. The eight counts of the indictment are summarized as follows: (1) First Count: conspiracy to commit car-jacking from on or about March 4, 2006 thru on or about March 9, 2006; (2) Second Count: car-jacking of a gold 2005 Buick Rainier on or about March 4, 2006; (3) Third Count: car-jacking of a white 2002 Volkswagen Jetta on or about March 4, 2006; (4) Fourth Count: weapon's violation on or about March 4, 2006 in connection with the commission of the crimes included in the Second and Third counts; (5) Fifth Count: attempted car-jacking of a light blue 2006 Mercedes SLK on or about March 5, 2006; (6) Sixth Count: weapon's violation on or about March 5, 2006 in connection with the commission of the crime included in the Fifth count; (7) Seventh Count: car-jacking of a silver 2005 B.M.W. 325 on or about March 8, 2006; and (8) Eighth Count: weapon's violation on or about March 8, 2006 in connection with the commission of the crime included in the Seventh count. (Criminal No. 06–0117(DRD), Docket No. 15).

On April 6, 2006, Petitioner entered a plea of not guilty as to all counts. (Criminal No. 06–0117(DRD), Docket No. 20); however, on September 17, 2007, Petitioner announced that he had reached an agreement with the government and would be pleading guilty. (Criminal No. 06–0117, Docket No. 106). On September 27, 2007, Petitioner entered into a plea agreement and entered a guilty plea as to counts Two, Three, Seven and Eight of the indictment. That is, three separate carjackings and one weapons charge that triggered a mandatory consecutive sentence. (Criminal No. 06–0117, Docket No. 109).

On February 21, 2008, Petitioner was sentenced to 121 months imprisonment as to counts Two, Three and Seven, and 84 months as to count Eight, for a total of 205 months. (Criminal No. 06–0117, Docket No. 131).

On March 12, 2009, Petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (“Section 2255 Motion”), on two grounds: (1) that the sentencing court erred in enhancing his sentence under U.S.S.G. § 2B3.1(b)(2)(C) in violation of Amendment 599 to the United States Sentencing Guidelines; and (2) that Petitioner received ineffective assistance of counsel for failure to object to the erroneous sentence enhancement. Specifically, Petitioner avers that the sentence for his car-jacking conviction under counts Two and Three were erroneously enhanced by the weapon's violation under count Eight, and that defense counsel should have served to prevent such error. (Docket No. 1, page 4.)

On July 22, 2009, the government filed a response in opposition to Petitioner's Section 2255 Motion. (Docket No. 6). In their opposition, the government denies the impermissible double counting of the charges for purposes of the Petitioner's sentencing. The government alleges that the sentencing under counts Two and Three, which relate to car-jacking offenses that occurred on March 4, 2006, were enhanced for brandishing or possessing a firearm in the commission of the acts included in counts Two and Three. The government also alleges that count Seven, the underlying charge of count Eight, relates to a separate car-jacking offense that occurred on March 8, 2006 and was not subject to any enhancement on account of brandishing or possessing a firearm in the commission of the acts included in such count because such acts were already included in count Eight. Further, the government alleges that because Petitioner failed to raise the issue at the sentencing hearing or on appeal, he should now be barred from raising the issue in a Section 2255 Motion. (Docket No. 6).

On August 21, 2009, Petitioner filed a reply to the government's response. (Docket No. 7). In the reply, Petitioner alleges that: (1) the offenses in counts Two, Three and Seven were clearly grouped in the plea agreement for sentencing purposes; (2) the sentences imposed for the grouped counts were enhanced on account of the weapon's violation; and (3) because Petitioner was also sentenced separately for the weapon's violation, there was impermissible double counting. Further, Petitioneralleges that the failure to raise the issue during sentencing or on appeal is attributable to the ineffective assistance of his counsel.

On February 10, 2012, the Court referred Petitioner's Section 2255 Motion to Magistrate Judge Justo Arenas. (Docket No. 10). On February 13, 2012, Magistrate Judge Arenas entered his Report and Recommendation recommending that the Court deny Petitioner's Section 2255 Motion without an evidentiary hearing because Petitioner did not demonstrate prejudice as a result of the alleged error in the sentencing nor ineffective assistance of counsel. (Docket No. 12). Upon his review of the record in Criminal No. 06–0117(DRD), Magistrate Judge Arenas concluded that the record reflects a “conscientious defense couple[d] with a satisfactory plea agreement both for petitioner and the government at the time it was signed and at sentence.” (Docket No. 12, page 14).

On March 5, 2012, Petitioner opposed the Report and Recommendation. (Docket No. 14). In his opposition, Petitioner rehashed the allegations made in his Section 2255 Motion and in the reply to the government's response, but made no specific identification as to any portion of the Report and Recommendation that Petitioner was challenging or to which an objection was made.

II. MAGISTRATE'S REPORT AND RECOMMENDATION

The District 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 alsoFed.R.Civ.P. 72(b); D.P.R. Civ. R. 72(a), Local Rules, District of Puerto Rico; and Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Nonetheless, an adversely affected party may contest the Magistrate Judge's Report and Recommendation by filing its objections to the recommendations made. Fed.R.Civ.P. 72(b). In such respect, 28 U.S.C. § 636(b)(1), in pertinent part, provides that:

[w]ithin fourteen days of being served with a copy, 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 judge.

(Emphasis added).

“Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate's recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (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 also Henley Drilling Co. v. McGee, 36 F.3d 143, 150–51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in a magistrate's recommendation, as well as the magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[o]bjection to a magistrate's report preserves only those objections that are specified”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); 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”); United States v. Valencia, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

The Court, in order to accept unopposed portions of the Magistrate Judge's Report and Recommendation, needs 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.1982) ( en banc ) (appeal from district court's acceptance of un-objected to findings of magistrate judge reviewed for “plain error”); Nogueras–Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (finding that the “Court reviews [unopposed] Magistrate's Report and...