Torres-Quiles v. U.S.

• Decision Date: 06 July 2005
• Docket Number: No. CIV. 05-1258(SEC).,CIV. 05-1258(SEC).
• Citation: 379 F.Supp.2d 241
• Parties: Angel TORRES-QUILES Petitioner v. UNITED STATES of America Respondent.
• Court: U.S. District Court — District of Puerto Rico

379 F.Supp.2d 241

Angel TORRES-QUILES Petitioner v. UNITED STATES of America Respondent.

No. CIV. 05-1258(SEC).

United States District Court, D. Puerto Rico.

July 6, 2005.

Angel Torres Quiles, pro se, for Petitioner.

Nelson Pérez-Sosa, Asst. U.S. Atty., for Respondent.

OPINION AND ORDER

CASELLAS, Senior District Judge.

Before the Court is Petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Docket # 1). On April 5, 2005 the Court referred this case to Magistrate-Judge Camille Vélez-Rivé for a Report and Recommendation (Docket # 6). On June 15, 2005 Magistrate Vélez-Rivé issued her report, recommending that the petition be denied and the case be dismissed with prejudice (Docket # 7). Petitioner has not filed any objections to the Magistrate's report and the time allotted for doing so has expired. Therefore, the Court will APPROVE and ADOPT the Magistrate's Report and Recommendation, DENY Petitioner's motion, and DISMISS WITH PREJUDICE the above captioned action.

Standard of Review

The scope of review of a Magistrate's recommendation is set forth in 28 U.S.C § 636(b)(1)(c). This section provides that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified findings or recommendations to which [an] objection is made." Id. The Court can "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate," however, if the affected party fails to timely file objections, "`the district court can assume that they have agreed to the magistrate's recommendation.'" Alamo Rodriguez v. Pfizer Pharm., Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003) (quoting Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985)). Thus, no review is required of those issues to which objections are not timely raised. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Borden v. Sec'y of Health & Human Services, 836 F.2d 4, 6 (1st Cir.1987). In fact, a party who fails to file any objections to the Magistrate Judge's Report and Recommendation within ten days of its filing waives his or her right to appeal from the district court's order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); United States v. Valencia-Copete, 792 F.2d 4, 5 (1st Cir.1986); Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992) ("[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal").

Analysis and Conclusion

Neither party has objected to the Magistrate Judge's Report and Recommendation, thus we are not required by law to review it. However, upon review, we find no fault with Magistrate Judge Vélez-Rivé's assessment and thus APPROVE and ADOPT her Report and Recommendation as our own. Consequently, Petitioner's motion is DENIED and the above captioned action will be DISMISSED WITH PREJUDICE. Judgment shall be entered accordingly.

SO ORDERED.

REPORT AND RECOMMENDATION

VELEZ-RIVE, Unired States Magistrate Judge.

INTRODUCTION

On March 9, 2005, petitioner Angel Torres Quiles filed a motion and affidavit in support of a 28 U.S.C. § 2255 petition seeking to vacate his sentence imposed after a guilty plea in Criminal No. 03-185(SEC) (Civil No. 05-1258, Docket No. 1). Petitioner submits in his § 2255 petition that in light of a recent court decisions in Blakely v. Washington.¹ Apprendi v. New Jersey,² and United States v. Booker³ the sentence imposed should have been less had the sentencing court considered a lower sentencing guideline without enhancement for abuse of a position of trust and further crediting him with a two (2) level reduction under the safety valve. Furthermore, petitioner makes a generalized assertion of ineffective assistance of counsel.

On April 5, 2005, the United States filed its response to the § 2255 petition. (Civil No. 05-1258, Docket No. 5). On the same day, the § 2255 petition was referred to this Magistrate Judge for report and recommendation. (Civil No. 05-1258, Docket No. 6).

PROCEDURAL BACKGROUND

Above petitioner was indicted, together with other co-defendants, in count one of an indictment with conspiracy to possess with intent to distribute five (5) kilograms or more of mixture or substance containing a detectable amount of cocaine, as prohibited by Title 21, United States Code 841(a)(1), in violation of 21 United States Code § 846.⁴ (Criminal No. 03-185, Docket No. 10). The object of the conspiracy was to distribute cocaine and overt acts indicated petitioner was hired to collect a drug debt (Indictment Count One, Overt Acts ¶ 4-6, 8-9).

On February 23, 2004, petitioner entered a plea of guilty pursuant to a government's plea offer under Rule 11(c)(1)(A)(B) of the Fed.R.Crim.P and the Rule 11 hearing was entertained by the Court. Petitioner was held accountable for at least two (2) but less than three point five (3.5) kilograms of cocaine. On July 2, 2004, petitioner was sentenced to a term of imprisonment of seventy (70) months, a supervised release term of four (4) years, and a special monetary assessment of one hundred dollars ($100).

LEGAL ANALYSIS

I. The Sentence Imposed Was Not Unconstitutional.

Petitioner claims his federal sentence should be lowered since the Guideline Range used considered factors based on factual findings by the Court. Petitioner's request is based under Blakely, 542 U.S. 296, 124 S.Ct. at 2531, 159 L.Ed.2d 403 in which the Supreme Court held as unconstitutional a similar sentencing framework in the state of Washington.

In Blakely, the Supreme Court applied the rule established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and concluded that defendant's sentence was in direct violation of his Sixth Amendment rights. The Court reiterated that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 542 U.S. 296, 124 S.Ct. at 2536, 159 L.Ed.2d 403. The Court further clarified that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 2537. The Court further clarified that "the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Id. In applying this rule to the case before them, the Supreme Court determined the trial judge had exceeded his authority when he imposed a sentence relying on facts which were not accepted by defendant. Id. at 2542.

It is appropriate to discuss this Federal Sentencing Guidelines enhancement under Booker/Fanfan, as being the most recent decisions of the United States Supreme Court on this matter.⁵ Subsequent to Blakely, in United States v. Booker; United States v. Fanfan, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court addressed the constitutionality of the Federal Sentencing Guidelines and failed to eliminate them as unconstitutional, thus, preserving their existence by making them advisory rather than mandatory. As such, federal courts are still to take into consideration the Federal Sentencing Guidelines when imposing a sentence. See Booker/Fanfan, 543 U.S. ___, 125 S.Ct. at 738, 160 L.Ed.2d 621.

Thus, the Supreme Court held unconstitutional solely the mandatory application of the Federal Sentencing Guidelines and not the Guidelines themselves. The remaining portions of the Sentencing Reform Act⁶ after excising the mandatory wording and the provision that gave the courts of appeals de novo review over certain aspects of sentencing as included in 18 U.S.C. § 3742(3) were left intact. Thus, there is no violation of constitutional dimension that would merit this petition to be considered.

Therefore, petitioner's claim the sentence imposed should be considered unconstitutional lacks merit.

II. Blakely/Booker Claims Have No Retroactive Application on Collateral Relief.

Petitioner has not expressly claimed that Blakely/Booker should be applied retroactively to his case. Nonetheless, in an abundance of caution, we address the retroactivity issue due to the nature of petitioner's allegations.

The retroactive effect of Booker in establishing a new rule about the federal Sentencing Guidelines was not addressed by the Supreme Court, covering solely those cases which were not final when the decision was issued on January 12, 2005. Booker, 125 S.Ct. at 769. Thus, like Blakely, Booker is not retroactive. See McReynolds v. United States, 397 F.3d 479 (7th Cir.2005) (Booker does not apply retroactively to criminal cases that became final before its release); Guzman v. United States, 404 F.3d 139, 140 (2nd Cir.2005); Varela v. United States, 400 F.3d 864, 868 (11th Cir.2005); Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir.2005); United States v. Schneiderhan, 404 F.3d 73 (1st Cir.2005) (plain error standard applied to determine if defendant would be entitled to remand for re-sentence); United States v. MacKinnon, 401 F.3d 8 (1st Cir.2005) (The principles announced in Booker apply to all cases pending on direct review); United States v. Sahlin, 399 F.3d 27 (1st Cir.2005) (Booker provides no basis to vacate the entry of a pre-Booker guilty plea); United States v. Antonakopoulos, 399 F.3d 68 (1st Cir.2005); cf. United States v. Hughes, 396 F.3d 374 (4th Cir.2005) (enhancement factors for sentencing used by court not jury although correct under the Guidelines allowed for re-sentencing after Booker).

The Court of Appeals for the First Circuit has consistently held that petitions under 28 U.S.C. § 2255 are unavailable to advance Booker claims...