Peralta v. U.S.

• Decision Date: 05 March 2010
• Docket Number: No. 08-1765.,08-1765.
• Citation: 597 F.3d 74
• Parties: Andres PERALTA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

597 F.3d 74 Andres PERALTA, Petitioner, Appellant,
v.
UNITED STATES of America, Respondent, Appellee. No. 08-1765. United States Court of Appeals, First Circuit. Heard November 5, 2009. Decided March 5, 2010.

[597 F.3d 76]

B. Alan Seidler, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney was on brief for appellee.

Before LYNCH, Chief Judge, BOUDIN, Circuit Judge, and SAYLOR,^* District Judge.

PER CURIAM.

This is an appeal by a federal prisoner from the denial of a motion to vacate his sentence under 28 U.S.C. § 2255. Appellant Andres Peralta pleaded guilty to a drug conspiracy count in 2004 and was sentenced to 135 months' imprisonment. He now contends that he received ineffective assistance of counsel in violation of the Sixth Amendment and, as a result, was wrongly classified as a career criminal and sentenced to an unreasonably long term of imprisonment. Because we find that Peralta has not met his burden of proving a constitutional violation, we affirm.

I. Background

A. Indictment and Motion to Dismiss

On August 6, 1996, Andres Peralta was charged in the United States District Court for the District of Maine in a one-count indictment. The indictment charged Peralta and three others with conspiring to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). The conspiracy was alleged to have occurred between early 1992 and February 1996.

Peralta remained at large for nearly eight years. He was ultimately arrested on May 12, 2004, in New York. On July 8, 2004, attorney Frank Ortiz entered an appearance as his counsel.

Ortiz was a graduate of Harvard Law School and a member of the New York bar who had practiced law since 1959. Ortiz was fluent in Spanish; because Peralta is a native of the Dominican Republic whose English is limited, Ortiz communicated with him in Spanish.

Peralta entered a plea of not guilty. On August 26, 2004, Ortiz filed a motion to dismiss the indictment, alleging a violation of Peralta's constitutional right to a speedy trial. As the Magistrate Judge later characterized the motion, it was "substantial" and "well-researched." Because Peralta ultimately pleaded guilty pursuant to a plea agreement, the government never filed an opposition, and the District Court never resolved the issue.

In addition to filing the motion, Ortiz entered into plea negotiations with the government. On September 16, 2004, Ortiz sent Peralta a copy of a proposed plea agreement with significant parts of it translated into Spanish. Ortiz believed at the time, and advised Peralta, that under the proposed agreement the guideline sentencing range would be 188 to 235 months. Ortiz also visited Peralta in Maine to discuss the plea agreement before he signed it.¹

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Peralta executed the written plea agreement on September 21, 2004, and on October 1, 2004, it was filed with the court.

B. Plea Agreement

The plea agreement included a stipulation to a drug quantity of 500 grams to two kilograms of cocaine, which resulted in a base offense level of 26 under the Sentencing Guidelines. The agreement also provided that the government would move for a three-level downward departure for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1; that the government would not file an information under 21 U.S.C. § 851 in order to obtain an enhanced sentence; and that Peralta would not waive his rights under the then-recent Blakely decision.²

At some point after Peralta signed the plea agreement, but before the change of plea took place, Ortiz came to realize for the first time that Peralta's criminal record might result in a "career offender" classification under the Sentencing Guidelines. See U.S.S.G. § 4B1.1. As a career offender, Peralta would be subject to a substantially longer guideline sentence. On October 15, 2004, Ortiz wrote a letter to Peralta explaining that he had postponed the change of plea hearing because of this late realization. The letter stated that although the plea agreement had been signed, Peralta had not yet entered a plea of guilty, and it was therefore likely that he could proceed on the motion to dismiss without any "harm" to his rights. Ortiz further explained—apparently for the first time—that Peralta could be facing a sentence of 262 to 327 months as a career offender.

Ortiz attempted to negotiate a further reduction in the agreed-upon drug quantity, but was unsuccessful. Peralta did, however, cooperate with the government sufficiently to earn an additional concession; the government agreed that if he were found to be a career offender, it would not oppose his motion for a downward departure based upon the fact that his criminal history category overstated his criminal history. That agreement was memorialized in a letter from the Assistant U.S. Attorney dated November 8, 2004.

Peralta pleaded guilty on November 10, 2004, to the single conspiracy count. The court accepted the guilty plea as voluntary and knowing. The same day, the court entered an order terminating the motion to dismiss.

C. Developments Between the Guilty Plea and the Sentencing

During the period that Peralta was awaiting his sentencing hearing, he exchanged three letters with Ortiz.

On February 7, 2005, Peralta sent a letter alleging that Ortiz had promised him a sentence of 60 months based upon his "deal" with the Government. On March 2, 2005, Ortiz responded; he unequivocally denied that he had ever made such a

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promise and told Peralta that if he intended to make such an accusation, he should tell the judge immediately that he had been misled and wanted a new attorney. Ortiz offered to withdraw from representation. On March 9, 2005, Peralta wrote a letter of apology explaining that he was depressed and apparently not thinking clearly when he wrote the earlier letter.

The Presentence Report attributed 7.8 kilograms of cocaine to Peralta, and accordingly calculated a base offense level of 32 under U.S.S.G. § 2D1.1.³ A two-level role enhancement and three-level reduction under U.S.S.G. § 3E1.1 produced an adjusted offense level of 31. Peralta had two prior drug-trafficking convictions, which qualified him as a career offender under § 4B1.1; this resulted in a revised base offense level of 34. With a reduction for acceptance of responsibility, the total offense level became 31.

The PSR calculated Peralta's criminal history score as eight. Although he would otherwise have been placed in criminal history category IV, his career-offender status placed him in criminal history category VI. The resulting guideline range was 188 to 235 months. A mandatory minimum sentence of five years also applied.⁴

One of the predicate convictions under the career offender guideline was a 1988 conviction in New York for attempted sale of a controlled substance. On March 22, 1988, Peralta had been sentenced to a five-year probationary sentence on that offense; the probation was terminated early in April 1990. The 1988 conviction was a "youthful offender adjudication" under New York law. See N.Y.Crim. Proc. Law § 720.10. The PSR stated that Peralta was 18 years old at the time he committed the offense on January 28, 1988.

The PSR listed Peralta's birth date as October 1, 1969, in two separate locations. It also listed his then-current age as 35 years, which implied a birth date between February 1969 and February 1970. Peralta raised no objection as to his date of birth or his age.

D. Sentencing

On May 15, 2005, Peralta appeared with his attorney for sentencing. Ortiz and Peralta confirmed separately that they had read and discussed the PSR.

The government argued that Peralta qualified as a career offender because the 1988 conviction counted as a predicate. It specifically argued that Peralta "was 18 when he was convicted. It does not even qualify as a juvenile conviction under the guidelines. In addition, juvenile convictions can be counted as predicates."⁵

The court found that "it is clear that the defendant was 18 or older at the time of the offense." It accordingly counted the 1988 conviction as a predicate, which rendered Peralta a career offender. The court, however, granted Peralta a two-level downward departure as to his criminal history category (to Category IV) and a 16-month downward departure under § 5K1.1 for his cooperation. It then sentenced him to a term of incarceration of 135 months.

597 F.3d 79

E. Appeal

This Court affirmed the sentence, holding that "the sentencing judge sentenced Peralta to a reasonable prison term." United States v. Peralta, 457 F.3d 169, 172 (1st Cir.2006)(per curiam).

F. The § 2255 Proceeding

On March 15, 2007, Peralta filed a pro se motion under 28 U.S.C. § 2255 to set aside his conviction on the grounds, among other things, that he received ineffective assistance of counsel in connection with his plea of guilty, sentencing, and direct appeal.⁶

With his motion, Peralta filed a transcript of the plea proceeding in New York on February 11, 1988. According to the transcript, Peralta's attorney had told the judge that Peralta was then 17 years old. Peralta also attached a copy of what he represented was a certified copy of a birth certificate from the Dominican Republic showing his date of birth as October 1, 1970.

The matter was referred to a Magistrate Judge for a report and recommendation.⁷ After an evidentiary hearing in April 2008, the Magistrate Judge made various factual findings and recommended that the District Judge deny the motion. On May 22, 2008, the District Judge adopted the report and recommendations of the Magistrate Judge.

Peralta now appeals that decision.

II. Standard of Review

Because the district court held an evidentiary hearing on the ineffective assistance of counsel claim, this Court will "review[] its factual conclusions for clear error." Owens v. United States, 483 F.3d 48, 57 (1st Cir.2007)(citing Awon v. United States, 308 F.3d 133, 140 (1st...