Osorio-Norena v. U.S.
| Decision Date | 24 September 2009 |
| Docket Number | Civil Action No. 09-10069-RCL. |
| Citation | 658 F.Supp.2d 266 |
| Parties | Dario OSORIO-NORENA, Petitioner v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Dario Osorio-Norena, Fort Dix, NJ, pro se.
Dario Osorio-Norena ("Osorio" or "Petitioner") proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Pet'r Mot. [Doc. No. 759]. Osorio pled guilty to one count of conspiracy to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846, and one count of conspiracy to launder drug proceeds in violation of 18 U.S.C. § 1956(h). Osorio also tendered an Alford1 plea to one count of distribution of five or more kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1).
In his present motion, Osorio seeks relief under the provisions of 28 U.S.C. § 2255, claiming he received ineffective assistance of counsel based on his counsel's alleged failure to: 1) subpoena alibi and rebuttal witnesses; 2) permit or prepare Osorio to testify on his own behalf during the evidentiary hearing before sentencing; 3) move to strike the leadership aggravating factor in the fourth superseding indictment; 4) inform Osorio of the potential fine at the time of the sentencing hearing; and 6) request downward departures from the range provided by the sentencing guidelines. Additionally, Osorio claims that his plea itself was involuntary; he asserts that he pled guilty under pressure from other co-conspirators and in response to defense counsel's promise of a plea agreement with the government for a reduced sentence.
On August 25, 2004, a federal grand jury returned a fourth superseding indictment against Osorio and his co-defendant, Jhon Jairo Arango ("Arango"), charging each of them with three counts: conspiracy to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count One); conspiracy to launder drug proceeds, in violation of 18 U.S.C. § 1956(h) (Count Two); and distribution of five or more kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Three). United States v. Arango, 508 F.3d 34, 36 (1st Cir.2007).
A jury trial was scheduled to begin on March 21, 2005. That morning, Osorio's defense counsel, Martin Leppo, informed the Court that his client wished to plead guilty to the first and second counts, conspiracy to distribute cocaine and conspiracy to launder drug proceeds, but enter an Alford plea to the third count of the indictment, distribution of five or more kilograms of cocaine. Change of Plea Hr'g Tr. 5:1-20, Mar. 21, 2005 ("Change of Plea") [Doc. No. 690.].
The Court conducted a fourteen-day evidentiary sentencing hearing to determine the amount of drugs and money attributable to each defendant. During the hearing, the government presented testimony from several law enforcement officers who testified that Osorio and Arango were arrested and extradited to Massachusetts from Colombia as part of an investigation that also led to the indictment of fourteen other co-conspirators. Two of the other conspirators were cooperating witnesses who testified at the hearing, Liliana Cruz ("Cruz") and Jorge de Jesus Vallejo Alarcon ("Vallejo").
Cruz's testimony comprised the majority of the evidentiary hearing. She testified that she transported drugs from New York to Massachusetts in 1998 and 1999 on Osorio and Arango's behalf as well as laundering money for them in 2000. Cruz stated she conveyed cocaine from New York on five separate occasions and that each trip was arranged at Osorio's request. Arango, 508 F.3d at 37. She testified that she picked up drugs either in Queens or in the Bronx. Id. During her Queens trips, she called Osorio upon arriving at the designated location. Next, the person delivering the narcotics called her mobile phone. Id. She would meet the delivery person inspect the cocaine quantity, and transport the cocaine to Massachusetts. Id. Once she arrived, Cruz called Osorio, told him where she had parked, and left the drugs in the unlocked car. Id. The following morning, the car would be returned to her without the drugs. Id. Her trips from the Bronx had a similar modus operandi. She left her unlocked car in a pre-arranged location and returned after the drugs were placed in the vehicle. Id.
Cruz testified that she delivered fifty kilograms of cocaine on her first trip from Queens to Massachusetts and ten kilograms on her second trip. Id. at 38. On her two trips from the Bronx, she delivered fifty and twenty-five kilograms, respectively. On her fifth trip, she brought an additional fifty kilograms of cocaine. Cruz testified that Osorio informed her Arango was the source of the drugs she obtained in Queens but was not certain whether her Bronx deliveries were Arango's as well. She further testified that on one trip, Osorio met her in Queens, transferred fifty kilograms to her, and directed her to transport the drugs to Massachusetts. Id. Cruz attested to Osorio's involvement in a total of 185 kilograms: sixty kilograms picked up in Queens in two trips; seventy-five kilograms picked up in two trips to the Bronx; and the fifty additional kilograms that she received directly from him during her third trip to Queens. Id.
Cruz also testified that she transported money from New York to Massachusetts on three separate occasions, in the amounts of $500,000, $600,000, and $500,000, respectively. Id. at 38. She stated that each of these trips were made at Osorio and Arango's request. Id. Cruz stated that she received deliveries of smaller amounts of money from Alonso Tavarez and two brothers with the surname Cataño. Id. She testified that Arango or Osorio called her in advance of each money delivery. Id. Osorio and Arango directed her as to the distribution and mailing of those monies, which together totaled $699,000. Osorio also instructed her on how to ship money to Colombia undetected by hiding it in electronic toys. Id. Occasionally, Cruz wired small amounts of money to Osorio and Arango. Cruz further testified that she delivered money to other members of the conspiracy in the United States at Osorio and Arango's direction. She kept records of the amounts of money collected and delivered to various parties and she retained her shipping receipts until either Arango or Osorio confirmed receiving the money. Id. Cruz's testimony was corroborated by myriad forms of evidence including telephone conversations with Osorio and Arango, records seized from Cruz's house after her arrest, as well as testimony from law enforcement agents and co-conspirator Vallejo. Id.
On the last day of the evidentiary hearing, the Court heard arguments from defense counsel about the sentencing factors, disputed quantities of narcotics and amounts of money. Evidentiary Hr'g Tr. 43:12-70:12, May 20, 2005 ("Evidentiary Hr'g") [Doc. No. 727]. Osorio's counsel argued that Osorio's role in the offense was merely that of the introducer, and that he was therefore substantially less responsible for the narcotics. Id. at 65:7-66:25. The Court took a recess and made findings of fact on the record for the purpose of sentencing. Id. at 85:11-95:7.
Having found that Cruz was a credible witness whose testimony was substantially corroborated, the Court found Osorio and Arango responsible for at least 67 kilograms of cocaine on the drug charges, adding together 60 kilograms from the two trips Cruz made to Queens on defendants' behalf along with the additional seven kilograms she purchased from Tavarez, who received the cocaine from Arango and Osorio. Arango, 508 F.3d at 38. The Court also found Osorio and Arango responsible for laundering $1,800,000 on that charge, calculating the total from the $500,000 and $600,000 that Cruz testified she retrieved from New York at defendants' request in the spring of 2000, plus the roughly $700,000 that was delivered to her in small amounts by the Cataño brothers and Tavarez. Id. at 38-39.2
In September 2005, Osorio's defense counsel filed two separate sentencing memoranda requesting downward departures. [Doc. Nos. 671-72]. The first requested a downward departure under United States Sentencing Guidelines ("Sentencing Guidelines") § 3E1.1 for sparing the government the burden and expense of a trial. [Doc. No. 671 at 5]. The second memorandum requested a downward departure from Category II pursuant to Sentencing Guidelines § 4A1.3 based on overstated criminal history. Osorio's counsel contended that the defendant's prior criminal history arose from a single driving under the influence incident over thirteen years prior in which no one was injured and that Osorio completed alcohol and substance abuse counseling. [Doc. No. 672 at 2].
Osorio's sentencing hearing was held on January 30, 2006. The Court found that Osorio and Arango were equally responsible and sentenced them each to 262 months in prison, followed by five years of supervised release. In addition, the Court imposed a $2,000,000 fine and a special assessment of $300.
Osorio and Arango appealed their sentences. Osorio was represented by different counsel on appeal. He claimed that the district court: (1) improperly based his sentence on facts not found by the jury beyond a reasonable doubt and, even under the preponderance-of-the-evidence standard, (2) incorrectly calculated the quantity of drugs and the amount of laundered money for which he was held responsible; (3) failed to consider the 18 U.S.C. § 3553(a) sentencing factors; (4) erred in its determination whether a fine should be assessed against him; (5) improperly found that he played a leadership role in the drug conspiracy; and (6) erred in granting only a two-level reduction in offense level for sparing the government the burden and expense of a trial. Arango, 508 F.3d at 37. Osorio also claimed that the government breached an unwritten plea agreement. Id. The First Circuit denied...
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