López-Negrón v. United States0
| Decision Date | 31 March 2021 |
| Docket Number | Civil No. 18-1034 (ADC) |
| Parties | FRANCISCO LÓPEZ-NEGRÓN Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
[Related to Crim. No. 12-251-4 (ADC)]
Petitioner Francisco López-Negrón ("petitioner") filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 1. Thereafter, petitioner retained counsel and filed a memorandum of law in support of his § 2255 motion. ECF No. 3. The government responded in opposition. ECF No. 7. Petitioner replied. ECF No. 10. For the reasons explained below, petitioner's motion is DENIED.
On March 29, 2012, petitioner and 21 co-defendants were indicted for their involvement in a drug trafficking conspiracy ("the International Conspiracy") that aimed to purchase, import and distribute cocaine. Crim. No. 12-251, ("Crim.") ECF No. 3. Petitioner was identified as one of the heads of the charged drug trafficking organization. Id. The charging document averred he directly controlled and supervised the trafficking venture - he purchased large quantities of cocaine from the Netherlands Antilles and then arranged, oversaw and directed their transport to and distribution in Puerto Rico and the continental United States. Id. The International Conspiracy began in 2003 and continued until 2012, when it was disarticulated by law enforcement. Id.
For his involvement in the International Conspiracy, petitioner was charged with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One); possession with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii) (Count Two); and possession of contraband - to wit, a cellular phone - in prison in violation of 18 U.S.C. §1791(a)(2) (Count Eight). Id.
In 2005 - after having joined the International Conspiracy - petitioner became involved with others in a different conspiracy ("the Bayamón Conspiracy") that distributed heroin, cocaine, crack cocaine, marijuana, oxycodone and alprazolam at various public housing projects in Bayamón.1 Crim. No. 10-251, ECF No. 3. Petitioner did not hold a leadership position in the Bayamón Conspiracy. He was instead attributed the role of a supplier. Id.
In 2010, petitioner and 108 other members of the Bayamón Conspiracy were indicted together in Crim. No. 10-251. Id. He was charged with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 860 (Count One); and with carrying and using firearms in relation to a drug trafficking offense, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Petitioner was arrested on March 20, 2011.
On July 29, 2011, petitioner pleaded guilty to both counts. Crim. No. 10-251, ECF No. 2112. On December 15, 2011 - three months before he was indicted for his involvement in the International Conspiracy - petitioner was sentenced to 70 months of imprisonment for one count and 60 months for the other, to be served consecutively, for a total of 130 months of imprisonment. Crim. No. 10-251, ECF No. 2444.
While under custody, and while pending sentencing for his involvement in the Bayamón Conspiracy, petitioner availed himself of a contraband cellphone and carried on his participation in the International Conspiracy. Title III recordings show petitioner actively coordinated for cocaine to be transported to New York - an overt act in the International Conspiracy, of which he was a leader. ECF No. 7 at 7-9; Crim. No. 12-251, ECF No. 1130 at 8-9.
Petitioner was sentenced in Crim. No. 10-251 over three months before being indicted in Crim. No. 12-251. In that timespan, the International Conspiracy continued to exist. The record does not indicate, and petitioner does not argue, that he withdrew from the International Conspiracy before he was sentenced for his involvement in the Bayamón Conspiracy.
On December 5, 2013, petitioner pleaded guilty to Count One of the indictment in Crim. No. 12-251 before Magistrate Judge Bruce McGiverin.2 Crim. ECF No. 599. Petitioner assured that he understood the terms, consequences, and conditions of his plea at a change of plea hearing and signed a plea agreement to the same effect. Crim. ECF Nos. 909, 1157. He recognized that his plea was knowing and voluntary and stated his satisfaction with defense counsel's performance. Crim. ECF Nos. 909 at 4, 6-8, 1157 at 5, 7, 10. Consequently, the Magistrate Judge found that petitioner's plea was knowing, intelligent, and voluntary. Crim. ECF No. 1157 at 19. This Court accepted the Report and Recommendation the Magistrate Judge tendered. Crim. ECF Nos. 877, 911.3
At sentencing, petitioner confirmed the accuracy of the Pre-Sentence Report ("PSR"). Crim. ECF No. 1130 at 2. Per the PSR's sentencing recommendations and the plea agreement, petitioner was sentenced to one hundred and eight (108) months of imprisonment. Crim. ECF Nos. 909 at 4, 1049 at 9. Moreover, and as agreed by the parties in the plea agreement, the Court determined petitioner's sentence would be served consecutively to a 130-month sentence imposed in Crim. No. 10-251.
Petitioner appealed his sentence, arguing that the Court erred in imposing a consecutive term of imprisonment and determining a Category III criminal history. ECF No. 1070; United States v. López-Negrón, Appeal No. 15-1294. The Court of Appeals dismissed petitioner's suit because he failed to adequately contest his plea waiver and no clear and gross injustice justified bypassing the appeal waiver. ECF No. 1246. The Court of Appeals further held that to the extent that petitioner "preserved an argument that the waiver was not knowing and voluntary, it [failed] because he was properly apprised at the change of plea hearing." Id.
Now, petitioner moves this Court for relief pursuant to 28 U.S.C. § 2255.
Petitioner asserts his Sixth Amendment right to effective counsel was violated because counsel failed to investigate his criminal record and seek the imposition of a concurrent sentence, rather than consecutive, to the 130-month sentence imposed in Crim. No. 10-251. ECF No. 3. He argues that a proper investigation would have discovered the overt acts in Crim. Nos. 10-251 and 12-251 were interrelated, and that counsel should have accordingly (1) bargained for a concurrent sentence recommendation while negotiating the plea agreement or (2) subsequently argued to the Court at the sentencing hearing that he was entitled to a concurrent sentence pursuant to U.S.S.G. § 5G1.3(b)(2). Id.
The government, in turn, argues that the International and Bayamón Conspiracies are not a single overarching conspiracy, but instead separate from each other. ECF No. 7. Accordingly, an investigation in petitioner's criminal history would not have yielded a different result. Id. The government also maintains that the Court sentenced petitioner in accordance to the terms and stipulations within the plea agreement. Id. Arguing for a concurrent sentence at the sentencing hearing would have meant breaching that agreement. Id. Finally, the government contends that because petitioner engaged in acts to further the International Conspiracy while imprisoned for his participation in the Bayamón Conspiracy, U.S.S.G. § 5G1.3(a) precludes the imposition of concurrent sentences. Id.
According to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack ... ." 28 U.S.C. § 2255(a); Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015); Barreto-Barreto v. United States, 551 F.3d 95, 98 (1st Cir. 2008); David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); Hill v. United States, 368 U.S. 424 (1962). The petitioner bears the burden of showing they are entitled to relief. See Lassend v. United States, 898 F.3d 115, 122 (1st Cir. 2018); Mack v. United States, 635 F.2d 20, 26-27 (1st Cir. 1980).
1. Ineffective Assistance of Counsel
The Sixth Amendment guarantees that in all criminal prosecutions, the accused shall have a right to the assistance of counsel for their defense. U.S. Const. amend. VI. It has long been recognized that "the right to counsel means the right to effective legal assistance." Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Counsel can deprive a defendant of the right to effective assistance by failing to render "adequate legal assistance." Strickland, 466 U.S. at 686 (quoting Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). Where, as here, a petitioner moves to vacate their sentence on ineffective assistance of counsel grounds, they must show that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id.
"In order to succeed on an ineffective assistance claim, a '[petitioner] must show both that counsel's performance was deficient and that it prejudiced [their] defense.'" Rojas-Medina v. United States, 924 F.3d 9, 15 (1st Cir. 2019) (citing Janosky v. St. Amand, 594 F.3d 39, 45 (1st Cir. 2010)). "To show that [their] counsel's performance was constitutionally deficient, [petitioner] must demonstrate that counsel's performance was objectively unreasonable under prevailing professional norms." Walker v. Medeiros, 911 F.3d 629, 633 (1st Cir. 2018) (quotation marks omitted) (citing United States v. Mercedes-De La Cruz, 787 F.3d...
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