Caceres v. United States
| Decision Date | 29 September 2014 |
| Docket Number | CASE NO. 13-22901-Civ-SEITZ,CASE NO. 11-20583-Cr-SEITZ |
| Parties | LAZARO CACERES, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
This matter is before this Court on the movant's pro se motion to vacate pursuant to 28 U.S.C. §2255, attacking the constitutionality of his conviction and sentence following a guilty plea entered in Case No. 11-20583-Cr-Seitz.
This Cause has been referred to the Undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2255 Cases in the United States District Courts.
The Court has reviewed the motion to vacate with supporting memorandum of law (Cv-DE# 1), Movant's amendments and supplement with attached affidavit (Cv-DE# 19, 20, 24); the government's response to the motion with supporting exhibits, which includes copies of the change of plea and sentencing transcripts (Cv-DE# 18, 30-1, 30-2); the movant's reply (Cv-DE# 21); all pertinent portions of the underlying criminal file; and the Presentence Investigation Report and addendum thereto.
Movant presents his claims as seven separate grounds forrelief. See Motion to Vacate at 5A and 5B (Cv-DE# 1); Motion Under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 2-3 (Cv-DE# 20). Full and careful review of Movant's pleadings reveals that he is essentially arguing that he received ineffective assistance of trial counsel during the pre-trial stage of the case; or more accurately, pre-guilty plea stage, and during the sentencing stage of his case.
In sum, Movant alleges that initial trial counsel improperly failed to present him before the federal grand jury; failed to file pre-trial motions, challenging the grand jury proceedings and resultant Indictment; and failed to seek discovery materials from the government, including Brady and/or Jencks materials.1 Movant alleges that successor counsel failed to properly prepare for trial and, instead, engaged in plea negotiations with the government without his express permission, consent or direction. He alleges that successor counsel rendered ineffective assistance with regard to sentencing, because counsel failed to (1) challenge incorrect information contained in the PSI; (2) investigate or challenge his criminal history; (3) challenge the sentencing enhancements so that he could obtain reduced sentencing by way of the Safety Valve; and (4) raise an Alleyne-type objection.2 He also raises a relatedclaim of prosecutorial misconduct, alleging that the enhancements included in the PSI were erroneous.
In May 2010, law enforcement agents received information regarding a narcotics trafficking organization operating in the Tampa, Florida area that obtained cocaine from a supplier located in the Miami, Florida area. Based upon the information, the Miami Division of the FBI began an investigation into the cocaine trafficking activities of Caceres. Before the subject investigation, agents had seized more than one kilogram of cocaine in two controlled purchases from Caceres and codefendant Vania Alvarez, Caceres' then-girlfriend.
From November 12, 2010, through December 11, 2010, law enforcement purchased an additional .25 kilograms of cocaine from Caceres through the use of a confidential informant. During this period, by way of authorized intercepted telephone conversations and physical surveillance, it became apparent that Caceres was dealing in cocaine and methylenedioxymethamphetamine ("MDMA"). Caceres purchased some of his cocaine from codefendant Noa. After Caceres received a kilogram of cocaine from Noa, he and codefendant Alvarez would often divide it into .25 kilogram quantities which they would then provide to codefendants Fordham and Mason and others who distributed the cocaine in the Tampa, Florida area. Caceres and Alvarez would often use Alvarez's bank account to deposit the money obtained from their drug trafficking enterprise and then to pay for multiple cocaine purchases.
On November 13, 2010, Noa was intercepted leaving a voicemail message for Caceres, informing Caceres that the next kilogram of cocaine would cost $30,000.00. On November 16, 2010, during a telephone conversation, Caceres and Fordham discussed the fact that Fordham was out of cocaine and would be traveling to Miami to obtain additional cocaine while bringing the proceeds of his previous drug sales. During a series of intercepted conversations, Caceres informed Fordham that he would call his source of supply to obtain the cocaine. Caceres then immediately telephoned Noa, who advised Caceres that the price for a kilogram of cocaine was increased to $30,250.00. Caceres agreed to the new price and told Noa to proceed. The following morning on November 17, 2010, Caceres received an incoming intercepted call from Alvarez who inquired whether Fordham had arrived and if he had brought the money. Caceres responded that Fordham was then with him. Again on November 25 and 28, and December 3, 2010, Caceres and Noa were intercepted arranging for the purchase of additional quantities of cocaine.
On August 25, 2011, Caceres was charged by Indictment with the offenses of conspiracy to possess with intent to distribute cocaine, in violation of Title 21, United States Code, Section 846 (Count 1), possession with intent to distribute cocaine, in violation of Title 21, United States Code, Section 841(a)(1) (Counts 2-5), and conspiracy to possess with intent to distribute methylenedioxymethamphetamine ("MDMA"), in violation of Title 21, United States Code, Section 846. (Count 6). (Cr-DE# 3). Caceres was arrested on September 15, 2011, and he made his Initial Appearance the following day. (Cr-DE# 21, 22). On September 22, 2011, attorney Paul Petruzzi filed a Notice of Temporary Appearance and on September 29, 2011, he filed a Notice of Permanent Appearance. (Cr-
DE# 29, 39).
During Caceres' arraignment on September 30, 2011, where he entered pleas of not guilty to the crimes charged, a Standing Discovery Order was entered and two weeks later, on October 17, 2011, the government filed its Response to the Standing Discovery Order. (Cr-DE# 42, 44, 45, 57). The discovery provided by the government included three compact discs containing recorded conversations and transcripts of those conversations had by Caceres pursuant to authorized wire interception. (Cr-DE# 57). On December 16, 2011, codefendant Mason filed an Unopposed Motion to Continue Trial (Cr-DE# 85), seeking a continuance of the trial on the basis that the case was a multi-defendant drug conspiracy case, the discovery was voluminous and included Title III wire intercepts and other related evidence, and the legal issues were complex. (Cr-DE# 85). Caceres also sought a continuance, adopting codefendant's motion. (Cr-DE# 86). The Court granted the motion to continue, stating in pertinent part in its Order:
This is a multi-defendant drug conspiracy case involving voluminous discovery and complex legal issues relating to Title Ill wiretaps. Defense counsel are in need of additional time to prepare for trial. The Court finds that the failure to grant a continuance in this case would deny the Defendants the reasonable time necessary for effective trial preparation, taking into account the exercise of due diligence, pursuant to 18 U.S.C. §3161 (h)(7)(B)(iv). Accordingly, the Court finds that the ends of justice served by an extension of the speedy trial deadlines outweigh the best interest of the public and the Defendants in a speedy trial pursuant to 18 U.S.C. § 3161 (h)(7)(A) and (B)(iv).
(Order Continuing Trial Date at 1-2 entered December 21, 2011)(Cr-DE# 88). Trial proceedings were again continued by order entered on February 27, 2012, due to ongoing plea negotiations with the government. (Cr-DE# 93, 97).
On May 3, 2012, Caceres retained new counsel, Hugo Rodriguez, and he was substituted as counsel. (Cr-DE# 112). On May 8, 2012,newly retained counsel requested a continuance of the trial, stating that he needed additional time to obtain from former trial counsel all discovery and needed time to review the discovery with Caceres. (Cr-DE# 115). The motion was granted on May 9, 2012, with the Court finding that the failure to grant a continuance in the case would deny Caceres the reasonable time necessary for effective trial preparation/plea negotiations and, therefore, the ends of justice warranted a continuance. (Cr-DE# 116).
On June 11, 2012, Caceres filed a Notice of Intent to Plead Guilty and requested the Court to schedule a change of plea hearing. (Cr-DE# 123). Caceres entered into a negotiated written plea agreement with the government as to Count 1 of the Indictment and he executed a Stipulated Factual Proffer on June 21, 2012. (Cr-DE# 139, 140). On the same date, he appeared before the Honorable Barry L. Garber, United States Magistrate Judge, to change his plea of not guilty to guilty to Count 1 of the Indictment in exchange for the dismissal of the remaining charges. See Transcript of change of plea conducted on June 21, 2012. (Cv-DE# 30-1). A plea colloquy conducted pursuant to Fed.R.Crim.P. 11 ensued during which Caceres was sworn. Id.
The Court first obtained personal background information from Caceres. Id. at 4-5. The Court then went on to ask Caceres if he had received a copy of the Indictment, if he had an opportunity to discuss the charges against him with counsel, and if he understood the charge to which he was entering his plea of guilty. Id. at 5-6. Caceres responded in the affirmative to all questions. Id. When asked if he was satisfied with the legal representation received, Caceres answered: "Yes." Id. at 6. The Court next asked Caceres if he discussed the plea agreement with cou...
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