Browne v. U.S.
| Decision Date | 11 July 2005 |
| Docket Number | No CRIM. 00-001(PG).,No. CIV. 04-2121(PG).,CIV. 04-2121(PG).,CRIM. 00-001(PG). |
| Citation | 379 F.Supp.2d 251 |
| Parties | Dale Chester BROWNE Petitioner v. UNITED STATES of America Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Dale Chester Browne, pro se, for Petitioner.
Nelson Pérez-Sosa, AUSA, for Respondent.
On this same date this Court APPROVED and ADOPTED Magistrate Judge Camille Velez-Rive's Report and Recommendation (Docket No. 7), and DENIED petitioner's Section 2255 motion.
WHEREFORE it is ORDERED AND ADJUDGED that this case be DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
On October 18, 2004, above petitioner filed a motion and affidavit in support of a 28 U.S.C. § 2255 petition seeking to vacate his sentence after he entered a change of plea to counts one (1) and nine (9) of a Superseding Indictment for conspiracy to possess cocaine with intent to distribute and engaging in a money laundering conspiracy. (Civil No. 04-2121, Docket No. 1; Criminal No. 00-001, Docket No. 310). On November 20, 2000, after trial had initiated on a nine counts Superseding Indictment, petitioner plead guilty to two conspiracy counts; one related with his participation over an extended period in a large-scale cocaine importation scheme, and the other to the money laundering conspiracy.1 He was thereafter sentenced to two hundred and sixty four (264) months of incarceration, a supervised release term of ten (10) years and a special monetary assessment of two hundred dollars ($200.00). An additional consecutive term of imprisonment of six-months was imposed for contempt of court. On January 18, 2005, the § 2255 petition was referred to this Magistrate Judge for report and recommendation. (Civil No. 04-2121, Docket No. 2).
Petitioner submits the § 2255 petition is timely under AEDPA2 since it was filed within the one year period after the Supreme Court of the United States denied his writ for certiorari, that is October 6, 2003. The government has not contested this issue.
In the post-conviction relief motion petitioner claims ineffective assistance of counsel because his guilty plea lacked voluntariness and understanding for having being made under advice of counsel which failed to meet the minimum standard of effectiveness. As grounds thereof, petitioner submits trial counsel improperly exerted pressure on him, misrepresented material facts, withheld information in order to induce a plea of guilty, all of which may be substantiated by the motion to withdraw the plea. Petitioner avers he was prejudiced by these actions because the sentencing court may have imposed a lower sentence if counsel would have informed the amount of drugs was incorrect. Additionally, petitioner submits that, as could be indicated in the motion to withdraw the plea, counsel withheld information which resulted in an unintelligible plea of guilty. Petitioner contends that at the time of sentencing he was expecting to receive a sentence for a lesser amount of drugs. Thus, he states now being entitled to specific performance under the plea.
Petitioner also submits that, on direct appeal to his conviction, appellate counsel failed to argue his plea was unintelligible and involuntary, and solely submitted error for failing to grant an evidentiary hearing on his motion to withdraw his plea. As such, petitioner claims ineffectiveness of both his trial counsel, who conducted the plea negotiations, and of his appellate counsel, for not raising other issues on appeal. Contrary to his prior claim for specific performance as to his plea, petitioner thereafter claims he should be entitled to new trial or to a new appeal.
Finally, petitioner contends that, under the rationale of Blakely v. Washington, and since the facts underlying the sentencing court's calculation of his base offense level was not admitted by petitioner, upon having been denied a hearing on his motion to withdraw the plea to argue quantity of drugs, he is entitled to Sixth Amendment protection.
On April 26, 2000, petitioner was indicted, together with a number of other co-defendants, in five counts of a Superseding Indictment3 charging conspiracy to possess cocaine with intent to distribute, bank fraud, two deliveries of a controlled substance and conspiracy to engage in money laundering, as prohibited by Title 21, United States Code 841(a)(1), in violation of 21 U.S.C. § 846,4 18 U.S.C. §§ 1344 and 1956(a)(1)(B)(i)-(ii) and (h).5
On November 20, 2000, petitioner entered a plea of guilty pursuant to a government's plea to the drug conspiracy and the money laundering conspiracy. The Rule 11 hearing was entertained by the Court. Some four months thereafter, petitioner filed a written motion to withdraw his guilty plea and same was denied without further proceedings in a detailed opinion upon finding unsupported allegations not substantiated by the plea transcript.
On May 18, 2001, petitioner was sentenced to a term of imprisonment of two hundred sixty four (264) months of imprisonment consistent with the agreed facts of the plea agreement. Because of an incident that amounted to contempt in the sentencing court's view, petitioner was also sentenced to six (6) months in jail consecutive to the two hundred and sixty four (264) months of the sentence previously imposed. Petitioner timely filed a Notice of Appeal arguing the District Court had erred by not granting an evidentiary hearing on the motion to withdraw his guilty plea and that his sentence for contempt, the consecutive six-month imposed, should be vacated for failure to grant allocution at the time said sentence was imposed.
The Court of Appeals for the First Circuit denied the claim the District Court should have granted petitioner an evidentiary hearing on the motion to withdraw his plea, upon lacking any specificity as to what he was expecting to prove at any evidentiary hearing, who would be called to testify and the areas it would cover, and any indication of why such a hearing might have been productive. Thus, the judgment of conviction was affirmed. United States v. Browne, 318 F.3d 261, 265 (1st Cir.2003). The Court of Appeals, however, remanded the case for consideration of the contempt judgment.
On remand, the sentencing court entertained a hearing, made appropriate findings as to the contempt, reiterated its contempt finding but limited sentence thereunder to three consecutive months of imprisonment. Petitioner submitted an appeal. In the mandate issued on March 15, 2005, the Court of Appeals affirmed the contempt judgment. As to petitioner's attempt to challenge anew the conspiracy sentence, even if there was appellate jurisdiction, the argument was deemed forfeited for failure to raise same in the original appeal and thus not available for consideration in the second appeal.
Petitioner submits the sentencing court's determination as to facts not reflected in his plea as to the quantity of drugs violated Blakely.
In a conspiracy case, to apply the mandatory minimum to a particular co-conspirator, the sentencing court must make a specific finding, supportable by a preponderance of the evidence, ascribing the triggering amount to that co-conspirator. See United States v. Colón-Solis, 354 F.3d 101, 103 (1st Cir.2004); United States v. Swiney, 203 F.3d 397, 401-06 (6th Cir.2000); United States v. Becerra, 992 F.2d 960, 967 n. 2 (9th Cir.1993); United States v. Gilliam, 987 F.2d 1009, 1013-14 (4th Cir.1993).
In Apprendi,8 the Supreme Court held as a matter of constitutional law that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," 530 U.S. at 488, 120 S.Ct. 2348. Thus, the due process clauses of the Fifth and Fourteenth Amendments make the jury the proper decision maker and the reasonable doubt standard is the proper burden, when a fact raises the maximum lawful punishment. Id. This is only applicable in situations where "the judge-made factual determination increased the maximum sentence beyond the statutory maximum, and not in situations where the defendant's potential exposure is increased within the statutory range." United States v. Baltas, 236 F.3d 27, 40 (1st Cir.2001).
Prior to the Apprendi decision, courts were certain drug quantity was merely a sentencing issue, not an essential part of the conviction. See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir.1996). However, subsequent to Apprendi, where drug quantity elevated the statutory maximum sentence, it needs to be proven beyond a reasonable doubt to the jury, although judges could still make all other drug quantity determinations at sentencing. See United States v. López-López, 282 F.3d 1, 22 (1st Cir.2002). Thus, Apprendi has resulted in verdict questions to juries about drug quantity, which questions were asked only if the jury had found guilt on the underlying offense.
In Blakely, the Supreme Court held the Sixth Amendment right to trial by jury was violated by imposition of a sentence above the "statutory maximum of the standard range" in the State of Washington's sentencing guidelines, because the sentence enhancement was based on aggravating facts which were determined by judicial, rather than jury fact finding. As such, the Sixth Amendment is deemed violated by imposition of a sentence greater than Thus, the Sixth Amendment is violated by judicial fact finding of facts germane to the application of a...
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