PORTOCARREO-VELASCO v. USA
| Decision Date | 14 April 2011 |
| Docket Number | NO. 8:10-cv-2284-T-17EAJ,Case No. 8:08-cr-402-T-17EAJ,8:10-cv-2284-T-17EAJ |
| Parties | AMADEO PORTOCARREO-VELASCO, v. UNITED STATES OF AMERICA. |
| Court | U.S. District Court — Middle District of Florida |
OPINION TEXT STARTS HERE
This cause is before the Court on Portocarreo-Velasco's timely-filed 28 U.S.C. § 2255 motion to vacate, set aside, or correct an allegedly illegal sentence. (Doc. CV-1; CR-161). A review of the record demonstrates that Portocarrero-Velasco's motion to vacate, set aside, or correct sentence must be denied.
On September 24, 2008, a federal grand jury indicted Amadeo Portocarrero-Velasco and three others for conspiring to possess with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a) and 70506(a) and (b); and 21 U.S.C. § 960(b)(1)(B)(ii) (Count One), and possessing with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine, while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a) and 70506(a), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii) (Count Two). Doc. CR-1. The government filed an information and notice of prior convictions putting the defendant on notice that he would be subject to enhanced penalties as the result of a June 20, 2001, conviction for conspiracy to possess cocaine with the intent to distribute on board a vessel, in violation of Title 46, U.S.C. § 1903(j), and possession of cocaine with the intent to distribute on board a vessel in violation of Title 46, U.S.C. § 1903(a), in case number 00-2917-J, which was prosecuted in the United States District Court for the Southern District of California, pursuant to Title 21, U.S.C. § 851. Doc. CR-39.
On December 16, 2008, Portocarrero-Velasco pled guilty with a written plea agreement to Count One of the Indictment. Docs. CR-46, 54. This Court adjudicated him guilty on January 26, 2009. Doc. CR-69. On March 13, 2009, this Court sentenced Portocarrero-Velasco to serve 262 months imprisonment to be followed by 120 months supervised release. Docs. CR-82, 93, and 133 at 16.
Portocarrero-Velasco directly appealed his conviction and sentence, Doc. CR-97, arguing that this Court had erred by sentencing him to an unreasonable sentence in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 765 (2005). The Government filed a Motion to Dismiss the appeal due to a valid appeal waiver contained in the plea agreement, which the Eleventh Circuit granted.
On October 12, 2010, Portocarrero-Velasco filed the instant motion. Doc. CV-1.
For a period of time until on or about September 17, 2008, the defendant, Amadeo Portocarrero Velasco and others were knowing and willing participants in a maritime drug smuggling venture in the Eastern Pacific Ocean. The defendant and others knowingly and willingly joined in and assisted in that maritime drug smuggling venture. Specifically, the defendant and his three co-defendants were smuggling cocaine aboard a stateless self-propelled semi-submersible (SPSS) vessel, and had all agreed to serve on it knowing that they were to assist in the illegal maritime drug smuggling venture. On September 17, 2008, the SPSS was intercepted by the United States Coast Guard (USCG) Cutter Midget approximately 400 nautical miles southwest of the Mexico/Guatemala border in the Eastern Pacific ocean. Permission was granted to board the SPSS and a USCG boarding team embarked upon the vessel. During the inspection of the SPSS, 295 bales containing approximately 19,175 pounds of cocaine were seized. A total of 4 crew members, including Portocarrero-Velasco were onboard the SPSS. All of the crew members were Colombian nationals. After his arrival in the United States, Portocarrero-Velasco admitted, post-Miranda that he had knowingly and willfully participated in the smuggling venture. It was also determined that Portocarrero-Velasco was the captain of the vessel. Docs. CR-46 at 12, 126 at 48-50, and PSR ¶¶ 10-12.
In the Pre-Sentence Report the United States Probation Office (USPO) recommended a base offense level of 38 based on Portocarrero- Velasco's involvement with at least 150 kilograms of cocaine, PSR ¶ 18, and further recommended a two-level upward adjustment, pursuant to USSG § 2D1.1(b)(2), because Portocarrero-Velasco was the captain of the vessel, PSR ¶ 21. The (USPO) also recommended a two-level reduction for acceptance of responsibility pursuant to USSG § 3E1.1(a), PSR ¶ 24, and a further one-level reduction pursuant to USSG § 3E1.1(a) and (b), PSR ¶ 25. The resulting offense level was 37, with a criminal history category III. Because the government filed for an enhancement penalty pursuant to 21 U.S.C. § 851, the sentencing range became 262 - 327 months' imprisonment PSR ¶¶ 62-64.
Portocarrero-Velasco made no objections to the PSR. At sentencing, he argued for a mitigating-role adjustment pursuant to 18 U.S.C. § 3553(a)(1)-(7). Doc. CR-133 at 7-10. Portocarrero-Velasco did not offer any evidence in support of a mitigating-role adjustment but contended that because he cooperated with the government and because of his age, he should be granted a downward adjustment. Id. This Court denied the motion. Doc. CR-133 at 14.
Portocarrero-Velasco's second claim, that his counsel was ineffective for failing to argue against the enhancement pursuant to 21 U.S.C. § 851 is cognizable under 28 U.S.C. § 2255. See, e.g., Lynn v. United States, 365 F.3d 1225, 1234 n.17 (11th Cir. 2004).
However, in his first claim, Portocarrero-Velasco argues that his sentence is unreasonable because it fails to meet the purposes of sentencing under § 3553(a). Doc. CV-1 at 6-10. This claim is not cognizable.
Collateral review pursuant to 28 U.S.C. § 2255 is not a substitute for direct appeal. See Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004); Burke v. United States, 152 F.3d 1329, 1331-32 (11th Cir. 1998) (citing Sunal v. Large, 332 U.S. 174, 178 (1947)). Nonconstitutional claims can be raised on collateral review only when the alleged error constitutes a "'fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.'" Reed v. Farley, 512 U.S. 339, 348 (1994) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). An allegation that a given sentence is contrary to the sentencing guidelines is a non-constitutional issue that does not provide a basis for collateral relief in the absence of a complete miscarriage of justice. See Burke, 152 F.3d at 1331-32 (collecting cases); see also United States v. Diaz-Clark, 292 F.3d 1310, 1316 n.4 (11th Cir. 2002) ().
Unreasonableness may be procedural or substantive. United States v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir.2006). A sentence may be procedurally unreasonable if "it is the product of a procedure that does not follow Booker's requirements, regardless of the actual sentence." Id. Moreover, a sentence may be procedurally unreasonable if the district court failed to consider the relevant § 3553(a) factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). A sentence "may be substantively unreasonable, regardless of the procedure used." Hunt, 459 F.3d at 1182 n. 3. When reviewing a sentence for reasonableness, "we will remand for resentencing if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case." United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85 (2007).
The weight accorded to the § 3553(a) factors is within the district court's discretion. Id. The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, (B) to afford adequate deterrence to criminal conduct, (C) to protect the public from further crimes of the defendant, and (D) to provide the defendant with needed educational or vocational training or medical care; (3) the kinds of sentences available; (4) the Sentencing Guidelines range; (5) pertinent policy statements of the Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities; (7) and the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).
Portocarrero-Velasco does not challenge the district court's guideline calculation. His issue is with the reasonableness of the sentence. Prior to imposing his sentence, the district court explicitly stated that it had considered the § 3553(a) factors. Doc. CR-133 at 16. Procedurally, this court complied with Booker. See Talley, 431 F.3d at 786. To the extent that Portocarrero-Velasco states that the district court failed to give weight to his factors asserted in support of a reasonable sentence, such as his cooperation, his age, and his personal circumstances, the weight accorded to various factors is within the district court's discretion. See Williams, 456 F.3d at 1363. Further, Portocarrero-Velasco's 262-month sentence was at the bottom of the guideline range and well below the statutory maximum of life imprisonment. See 21 U.S.C. § 960(b)(1)(B)(ii). Also, the record demonstrates that Portocarrero-Velasco is not similar to his co-conspirators as it was determined that he was the captain of the...
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