Cintron-Boglio v. United States

• Decision Date: 06 May 2013
• Docket Number: Civil No. 13–1225 (DRD).,Criminal No. 08–0204 (DRD).
• Parties: Justo L. CINTRON–BOGLIO, Petitioner v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

943 F.Supp.2d 292

Justo L. CINTRON–BOGLIO, Petitioner

v.UNITED STATES of America, Respondent.

Civil No. 13–1225 (DRD).

Criminal No. 08–0204 (DRD).

United States District Court, D. Puerto Rico.

May 6, 2013.

Justo L. Cintron–Boglio, Coleman, FL, pro se.

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

OPINION AND ORDER

JUSTO ARENAS, United States Magistrate Judge.

“The quality of mercy is not strain'd, ... it blesseth him that gives and him that takes.” William Shakespeare, The Merchant of Venice, act IV, sc. 1 (1596). Not satisfied with the quality of the court's mercy in modifying his sentence under the Fair Sentencing Act of 2010, petitioner, a convicted drug trafficker, now seeks federal habeas corpus relief to which he is ultimately not entitled.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 27, 2008, petitioner Justo L. Cintron–Boglio and 110 other defendants were charged in a seven-count indictment. Count One charged petitioner in that he (and the others) did knowingly and intentionally combine, conspire, confederate and agree with each other and with diverse other persons, to commit an offense against the United States, that is, to knowingly and intentionally possess with intent to distribute and/or distribute controlled substances, that is, in excess of fifty grams of cocaine base, a Schedule II Narcotic Drug Controlled Substance, and/or in excess of one kilogram of heroin, a Schedule I, Narcotic Drug Controlled Substance, and/or in excess of five kilograms of cocaine, a Schedule II Narcotic Drug Controlled Substance, and/or in excess of one hundred pounds of marijuana, a Schedule I Controlled Substance, within 1,000 feet of the real property comprising a public or private school and/or housing facility owned by a public housing authority and/or a playground, as prohibited by 21 U.S.C. §§ 841(a)(1) and 860. All in violation of Title 21 United States Code Section 846. (Criminal 08–0204, Docket No. 3). Counts Two through Five charge violations of the corresponding substantive charges related to the overall conspiracy. Count Six charged petitioner and 33 other defendants with knowingly and intentionally combining, conspiring, confederating and agreeing with each other and with diverse other persons, to commit an offense against the United States, that is, to knowingly and intentionally possess firearms during and in relation to a drug trafficking crime as charged in Counts One through Five, as prohibited by Title 18 U.S.C. § 924(c)(1)(A). All in violation of 18 U.S.C. §§ 924( o ). ( Id. at 35–37).

Petitioner appeared before me for arraignment on July 9, 2008 and entered a plea of not guilty to the charges. (Crim. No. 08–204, Docket No. 605). On January 15, 2010, petitioner changed his plea to one of guilty as the result of a plea agreement entered into with the United States. (Criminal 08–204, Docket No. 2981.) The agreement allowed the petitioner to request no less than a 121–month term of imprisonment at sentencing while the United States reserved the right to recommenda sentence of 151months. (Criminal 08–204, Docket No. 2997). Petitioner later moved to withdraw his guilty plea and after a multi-faceted motion practice, he withdrew the motion to withdraw his plea of guilty. (Crim. No. 08–204, Docket No. 4171). Petitioner was then sentenced on August 18, 2010 to 120 months imprisonment as to Count One of the indictment. Counts Two through Seven of the indictment were then dismissed. (Criminal 08–0204, Docket No. 4172). No notice of appeal was filed.

On March 18 and June 13, 2011, petitioner, pro se, moved to reduce his sentence. (Criminal 08–204, Docket Nos. 4378, 4428). Petitioner sought to remove the three-level enhancement for a leadership role from the sentencing calculus, and also sought reduction of his sentence under the Fair Sentencing Act of 2010. (Criminal No. 08–204, Docket No. 4378 at 4, 7). He further sought reduction specifically within the range of 63–78 months, relying on his calculations of the sentencing guidelines, specifically the amendments to U.S.S.G. 2D1.1(c)¹. (Crim. No. 08–204, Docket No. 4428 at 6). Then on January 12, 2012, petitioner, now represented by the Federal Public Defender of Puerto Rico, again moved to reduce sentence pursuant to 18 U.S.C. § 3582(c). (Crim. No. 08–204, Docket No. 4678). Petitioner reminded the court that it was not bound by the statutory minimum of ten years, citing United States v. Douglas, 644 F.3d 39 (1st Cir.2011). On March 29, 2012, the U.S. Probation Officer reported to the court that petitioner was not eligible for sentence reduction because he had been sentenced to the statutory minimum term of imprisonment applicable at the time the original sentence was imposed. (Criminal No. 08–204, Docket No. 4885 at 2).

Nevertheless, on May 7, 2012, the parties filed a stipulation to reduce the sentence from 120 months to 97 months of imprisonment. (Criminal 08–204, Docket No. 4941). The stipulation was approved and the court entered an order reducing the sentence accordingly. (Criminal 08–204, Docket No. 4948). Three months later, on August 27, 2012, petitioner, pro se, moved for reconsideration. (Criminal 08–204, Docket No. 5193). Specifically, he argued that he should be sentenced to 63 months imprisonment because the new sentencing range applicable after August 3, 2010 provided for a range of 63–78 months. To this end, he relies on the Administrative Directive issued by the court on September 21, 2011.² Misc. No. 11–437(ADC). Petitioner moved to amend the request for reduction of sentence on November 27, 2012, arguing that his sentence of 97 months was calculated under the pre-Fair Sentencing Act guidelines. (Crim. No. 08–204, Docket No. 5269). Relying on the stipulated sentence, the court denied the motions for reduction on November 29, 2012. (Criminal 08–204, Docket No. 5263). No appeal followed any of these decisions.

II. MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

This matter is before the court on motion filed by on March 18, 2013 to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. (Docket No. 1). The government filed a response in opposition to the motion on April 22, 2013. (Docket No. 7). Parties have consented to disposition before a United States magistrate judge pursuant to 28 U.S.C. 636(c).

Having considered the arguments of the parties and for the reasons set forth below, the motion to vacate sentence is denied as time-barred.

A. ARGUMENT

Petitioner claims that he was constructively denied counsel when his latest attorney failed to consult with him before stipulating to imposition of the reduced criminal sentence. (Docket No. 1 at 4, ¶ 12). He further argues that he was constructively denied counsel during the resentencing when counsel failed to prepare and submit a sentencing memorandum which would have shown post-arrest rehabilitation. (Docket No. 1 at 5). Petitioner argues in his third and final ground for relief that the district court erred in choosing to accept a multi-prison omnibus settlement in deciding the petitioner's sentence, and although understandable because of the stipulation, such decision violated petitioner's right to due process of law. (Docket No. 1 at 7). Specifically, the remedy he seeks is that the 97–month sentence be reduced to 67 months. (Docket No. 1 at 13).

On April 22, 2013, the government filed a response in opposition to the petitioner's motion. (Docket No. 7). In a nutshell, the government notes that petitioner was not entitled to counsel at the resentencing hearing, and that the order of May 12, 2012 did not reset the one-year limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), thus rendering this petition untimely.

B. ANALYSIS

On August 18, 2010, fifteen days after the enactment of the Fair Sentencing Act of 2010, codified in 21 U.S.C. §§ 841, 960, petitioner was sentenced to 120 months imprisonment.³ No appeal was taken so that the conviction became final on September 8, 2010. At the time of sentencing, the court used the United States Sentencing Guidelines in effect (November 1, 2009). Petitioner stipulated to being held responsible for at least 50 but less than 150 grams of cocaine base for a base offense level of 30, plus the two level enhancement to the quantity of controlled substances directly involving a protected location. SeeU.S.S.G. § 2D1.2(a)(1). This established an adjusted base offense level of 32. Petitioner was depicted as a supervisor in a conspiracy involving five or more participants and a three level enhancement was therefore applied, offset by a three level reduction for acceptance of responsibility. ( U.S.S.G. §§ 3B1.1(b), 3E1.1). The applicable sentencing range for a total offense level of 32 was between 121 to 151 months, with the parties allowed to argue for the upper and lower end of the guideline range.

The revised guideline calculations contained in the stipulation filed on May 7, 2012 reflected a total offense level of 30, with a sentencing range of between 97 to 121 months. The parties agreed that petitioner was eligible for modification of his sentence pursuant to 18 U.S.C. 3582(c) and U.S.S.G. § 1B1.10(c), Amendment 706 of the United States Sentencing Commission Guidelines Manual. The parties stipulated a sentence at the lower end of the guidelines. (Crim. No. 08–204, Docket No. 4941). Since the original guideline sentencing range had been lowered and made retroactive by the United States Sentencing Commission pursuant to 28 U.S.C. 994(u), the court approved the stipulation and modified the sentence accordingly. (Crim. No. 08–204, Docket Nos. 4942, 4948). Petitioner then waited ten months to let be known his dissatisfaction with the 97–month sentence. (Crim. No. 08–204, Docket No. 5316).

Under 28 U.S.C. § 2255, a federal prisoner may move for post conviction relief if:

the sentence was imposed in violation of the Constitution or laws of the United States, or that the...