U.S.A. v. DeJesus

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-1499
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. Fausto DeJesus, Defendant Appellant,
• Court: U.S. Court of Appeals — Second Circuit

Page 117

219 F.3d 117 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. Fausto DeJesus, Defendant Appellant,

Docket No. 99-1499

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

(Submitted: June 5, 2000)

(Decided: July 12, 2000)

Appeal from a judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) convicting defendant, after a plea of guilty pursuant to a plea agreement, of conspiracy to distribute cocaine and sentencing him principally to imprisonment for 120 months. Defendant challenges the validity of the plea agreement, in which he waived his right to appeal any sentence imposed within an agreed-upon Sentencing Guidelines range, on the grounds that (1) the Rule 11 proceeding did not adequately demonstrate that he understood the consequences of his waiver and (2) defense counsel's assistance was constitutionally ineffective.

Appeal dismissed.

[Copyrighted Material Omitted] DAVID C. ESSEKS, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York, Elizabeth Glazer, Assistant United States Attorney, of counsel), for Appellee.

Richard D. Willstatter, Green & Willstatter, White Plains, NY, for Appellant.

Before: Feinberg and Cabranes, Circuit Judges, and George, District Judge.^*

Per Curiam:

Defendant Fausto DeJesus appeals from a judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) entered August 11, 1999, convicting him, following a guilty plea, of conspiracy to distribute cocaine and sentencing him principally to imprisonment for 120 months. He maintains that the plea agreement, which included a waiver of his right to appeal any sentence imposed within an agreed-upon range under the Sentencing Guidelines, is invalid because (1) the plea proceeding under Rule 11 of the Federal Rules of Criminal Procedure ¹ did not adequately demonstrate that he understood the consequences of his waiver and (2) he was denied effective assistance of counsel in violation of the Sixth Amendment. Because defendant has failed to demonstrate that the waiver of his right to appeal is invalid, the appeal is dismissed.

I.

The material facts of this case are not in dispute. In 1991, defendant was hired by Miguel Severino to collect money and deliver drugs to customers of the Juan Cuevas criminal organization. After a trip to Panama in April 1996 to deliver money on behalf of the Cuevas organization, defendant began to purchase multi-kilogram quantities of cocaine from the Cuevas organization for sale to his own customers in New York and elsewhere. Between 1997 and 1998, defendant purchased a total of approximately 28 kilograms of cocaine from the organization, and in 1998, he received a handgun as collateral for a drug debt. He kept the gun, fired it from a roof and then sold it prior to his arrest on September 15 1998. Defendant, along with ten others, was subsequently indicted and charged with conspiracy to distribute, and possess with intent to distribute, in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 841.

After his indictment, defendant, accompanied by counsel, met with prosecutors several times to determine whether he could substantially assist in the investigation and prosecution of other individuals. Concerned that defendant was not being "entirely truthful" in his statements, prosecutors declined to offer him a cooperation agreement and therefore did not file a letter pursuant to U.S.S.G. § 5K1.1 for a downward departure from the applicable Sentencing Guidelines range. Instead, on April 20, 1999, the government proposed a plea agreement without a cooperation agreement. The plea agreement stipulated to a Sentencing Guidelines range of 120 to 135 months imprisonment. It further stipulated that "defendant does not qualify for the 'safety valve' provision of Title 18, United States Code, Section 3553(f)"² and that he would not appeal "any sentence within or below the stipulated sentencing Guidelines range."

On April 28, 1999, Judge Rakoff held a conference to entertain a request by defendant to replace his then-counsel. The Court understood defendant's request to arise out of his belief that the government should not have refused to offer a cooperation agreement. Explaining to defendant that the government's decision "has nothing to do with your counsel," Judge Rakoff denied the request to substitute counsel. On May 5, 1999, defendant pleaded guilty before Magistrate Judge Andrew J. Peck, pursuant to the plea agreement which he and his counsel signed.

On July 28, 1999, another conference was held before Judge Rakoff after defendant's counsel notified the Court that his client wished to withdraw his plea. At this conference, the Court again determined that defendant's objection to the plea agreement centered on his belief that the government was obligated to enter into a cooperation agreement. The Court rejected the application after explaining to defendant that it did not have the power, in the ordinary course, to compel the government to enter into a cooperation agreement. The Court requested that the government submit a summary of the information provided by defendant and the reasons why prosecutors did not credit his statements. However, the purpose of this request was not to review the government's decision, but to help the Court to determine the place within the agreed-upon guidelines range at which defendant should be sentenced. On August 11, 1999, the Court sentenced defendant principally to imprisonment for 120 months.

II.

On appeal, defendant claims that his waiver of the right to appeal was invalid and that he should have been given an opportunity to seek a lower sentence pursuant to the "safety valve" provision of § 3553(f). He argues that his waiver of the right to appeal is not enforceable because the Rule 11 proceeding did not adequately demonstrate that the waiver was made knowingly and voluntarily. In addition, defendant contends that the waiver of his rights in the plea agreement is invalid because he did not receive the effective assistance of counsel at that stage of the proceedings.

A. Rule 11 Proceeding

We find no merit in defendant's claim that the Rule 11 proceeding did not adequately demonstrate that he understood the consequences of his waiver. A defendant may appeal a sentence if it "was imposed in violation of law." 18 U.S.C. §3742(a)(1). Nevertheless, the right of appeal may be waived as part of a plea agreement. See, e.g., United States v. Chen, 127 F.3d 286, 289. Such a waiver is enforceable when the sentence imposed "conforms to the parameters of a plea agreement entered into knowingly and voluntarily." United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995); see also United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) ("In no circumstances . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement."). Defendant maintains that the waiver of his right to appeal was not knowing and voluntary because the waiver provision of the plea agreement "was not adequately explained in open court during the Rule 11 hearing." This claim, however, is belied by the record. During the course of the Rule 11 proceeding, the following colloquy took place between Magistrate Judge Peck and defendant:

THE COURT: There is a plea agreement letter with the government that has been handed up to me. It is dated April 20 on the first page, and you and [defense counsel] signed it today. That plea agreement letter says-and I want to make sure you understand that by signing it you agree not to appeal or in any other way challenge any sentence imposed upon you by Judge Rakoff if it is within or below the range set out in the letter, that is to say, if it is within or below the range of 120 to 135 months, then you cannot appeal.

But if Judge Rakoff were to sentence you to more than 135 months' imprisonment and you believed that there was a legal or other error in him doing that, you would then have the right to appeal to the Second Circuit Court of Appeals with respect to that. Do you understand that?

DEFENDANT: Yes, your Honor I understand that.

THE COURT: Do you understand that even if the sentence Judge Rakoff gives you is more severe than whatever you may be thinking or hoping in your head is the sentence you are going to get, you are still going to be bound by [ ] your guilty plea and not be permitted to withdraw it? . . . .

DEFENDANT: Yes, your Honor.

This colloquy adequately establishes that defendant understood the terms of his waiver in the plea agreement.

B. Ineffective Assistance of Counsel

Next, defendant argues that he was denied the effective assistance of counsel in entering the plea agreement, in violation of the Sixth Amendment. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that his counsel's performance was deficient and that the deficiency caused actual prejudice to his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance is deficient if it falls "outside the wide range of professionally competent assistance." Id. at 690. Here, defendant's assertion that he was denied effective assistance of counsel in entering into the plea agreement is predicated on the belief that he should have pleaded guilty without an agreement and then litigated the safety valve issue before the District Court at sentencing.

We conclude that defendant's argument is without merit because defendant, who bore the burden of proof under §5C1.2, see United States v. Ortiz, 136 F.3d 882, 883 (2d Cir. 1997) (per curiam), could not satisfy the criteria set forth in §3553(f). The District Court found that defendant was ineligible for safety valve relief because, "among...