U.S. v. Perez

• Decision Date: 07 November 1997
• Docket Number: D,No. 375,375
• Citation: 129 F.3d 255
• Parties: UNITED STATES of America, Appellee, v. Tyrone PEREZ, also known as Larry, also known as Starky, Defendant-Appellant. ocket 97-1139.
• Court: U.S. Court of Appeals — Second Circuit

Page 255

129 F.3d 255

UNITED STATES of America, Appellee, v.Tyrone PEREZ, also known as Larry, also known as StarkyDefendant-Appellant.

No. 375, Docket 97-1139.

United States Court of Appeals Second Circuit.

Submitted Oct. 1, 1997.

Decided Nov. 7, 1997.

Defendant appeals from an order of the United States District Court for the Eastern District of New York (Johnson, J.) denying his motion under 28 U.S.C. 2255 to review a judgment sentencing him to a 125-month prison term, four years of supervised release and a $ 50 special assessment, following his guilty plea to distributing more than five grams of cocaine base, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(iii).

Zachary W. Carter, United States Attorney, Eastern District of New York(Peter A. Norling and Susan Corkery, Assistant United States Attorneys, of counsel) for Appellee United States of America.Tyrone Perez, pro se, White Deer, Pennsylvania.

VAN GRAAFEILAND, McLAUGHLIN, Circuit Judges, POLLACK, District Judge.* McLAUGHLIN, Circuit Judge

BACKGROUND

In June 1991, Tyrone Perez was arrested after he delivered two pistols and a quantity of cocaine base to undercover agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF").During the previous two months, ATF agents had purchased eleven firearms and approximately seventeen grams of cocaine from Perez.After a detention hearing, Perez was released on bond and confined to his home, subject to electronic monitoring by an ankle bracelet.

In July 1991, Perez was indicted in the United States District Court for the Eastern District of New York(Johnson, J.) for distributing cocaine base, in violation of 18 U.S.C. §§ 841(a)(1)and841(b)(1)(B)(iii), and for dealing firearms, in violation of 18 U.S.C. §§ 922(a)(1)(A)and924(a)(1)(D).Three weeks later, the government realized that Perez had severed his ankle bracelet and fled.After Perez missed his arraignment on July 23, 1991, the district court issued a bench warrant for his arrest.He surrendered voluntarily in August 1991, over one month after fleeing.

A.Guilty Plea and Sentencing

In November 1991, Perez pled guilty to distributing cocaine base in violation of 18 U.S.C. §§ 841(a)(1)and841(b)(1)(B)(iii).In the plea agreement, the government agreed to dismiss the weapons charge and to refrain from "tak[ing] a position concerning where within the applicable guideline range the defendant's sentence should fall."

At the plea allocution, Perez admitted that he sold cocaine base to the ATF agents.Relying on a penalty sheet prepared by the government, the district court stated that, in light of Perez's acceptance of responsibility, "the worst that you can possibly do, assuming there is no upward departure, is anywhere from 51 to 63 months."

The Probation Department subsequently prepared a Presentence Report ("PSR") in which it calculated Perez's base offense level at 26, to which it added (1) a two-point enhancement under § 2D1.1(b)(1) of the Guidelines for possession of firearms as part of the offense; and (2) a two-point enhancement for obstruction of justice under § 3C1.1, because Perez severed his ankle bracelet and fled.The PSR set a criminal history category of III and recommended a final offense level of 30, yielding a Guidelines range of 121 to 151 months.

At the sentencing hearing in April 1992, Perez objected to the PSR's enhancement for obstruction of justice and argued that he should receive a two-point downward departure for acceptance of responsibility because he pled guilty.He also objected to the PSR's determination of his criminal history category as III, arguing that it should be only II because the report erroneously reflected a 1988 conviction for a violation, not a crime.Perez told the court that he had never sold drugs and guns until he

came in contact with this woman who [he] didn't know, and she got me in contact with these agents and I mean she kept calling me.She was the one who approached me and asked me for it, and she gave me her number and she took my number and she kept calling me, and then I met in contact with the agents and in the first transactions went down it was--I was in the car with them and we was talking and I was telling them I don't know, I don't know if I really want to do this and I even told them no at one point and then they were persistent ... and then he just used psychology or whatever and then ... I sold two firearms to them....

The court then asked Perez if he wished to withdraw his guilty plea, and his attorney responded no.

The district court rejected Perez's argument that he deserved a downward departure, concluding that Perez's statement to the court demonstrated his failure to accept responsibility for his actions.The court, however, did not explicitly address Perez's obstruction of justice argument.The court sentenced Perez to 130 months' imprisonment, four years of supervised release and a $50 special assessment.The difference between the Guideline conjecture at the plea allocution and the range actually calculated during the sentencing resulted from a criminal history category of III instead of II, a two-level enhancement for obstruction of justice, a two-level enhancement for possession of a weapon, and the denial of a two-point downward departure for acceptance of responsibility.

Perez appealed, arguing that the district court sentenced him pursuant to an incorrect Guidelines range and erroneously included the two-point enhancement for obstruction of justice.Upon that appeal, we remanded for resentencing, finding that the court improperly calculated Perez's criminal history, but otherwise we affirmed the court's sentencing determinations.SeeUnited States v. Perez, No. 92-1241, 983 F.2d 1047(2d Cir.Nov.4, 1992).

B. Resentencing

At resentencing in December 1992, the attorney for the government stated: "I would also like to point out, for whatever it's worth, that the 130 months which your Honor originally sentenced the defendant to still falls within the appropriate Guideline range of 108 months to 135 months."

At this juncture, Perez sought to withdraw his guilty plea, claiming that he entered the plea under duress and without understanding its terms, and that he had received ineffective assistance of counsel.The court denied his motion to withdraw the plea and rejected his claim of ineffective assistance of counsel, pointing out that his lawyer had successfully achieved a remand of the case for resentencing.Applying a criminal history category of II, the court resentenced Perez to 125 months' imprisonment, four years of supervised release and a $50 special assessment.

Represented by new counsel, Perez appealed again, arguing that the district court should have granted his motion to withdraw his plea because the court had indicated at the original plea allocution that, based on the penalty sheet prepared by the government, he would be sentenced to no more than 63 months' imprisonment.We affirmed.SeeUnited States v. Perez, No. 93-1023, 996 F.2d 302(2d Cir.May 25, 1993).We pointed out that the court had expressly asked Perez during his original sentencing if he wished to withdraw his plea, and, although it was crystal clear at that time that he faced a much greater sentence than originally estimated, he indicated through counsel that he still wished to plead guilty.Seeid. at 3.

C.Section 2255 Motion

In October 1994, Perez filed in the district court a pro se motion for "Reconsideration of Sentence Imposed & Motion for Modification of Sentence Imposed."He argued that (1)the court should have granted a downward departure for acceptance of responsibility; (2)he was entitled to an extra one-level departure for acceptance of responsibility, as provided in a 1989amendment to the Sentencing Guidelines in effect at his resentencing; (3)the court erred by finding that he obstructed justice; and (4)the court failed to make factual findings or expressly adopt the conclusions of the Probation Department at sentencing, in violation of Federal Rule of Criminal Procedure 32(c)(1).Perez alleged that the court had jurisdiction over the motion under both 28 U.S.C. § 2255and18 U.S.C. § 3582.

Two months later, in December, Perez filed a supplemental motion for reconsideration, adding the argument that he should have received a downward departure based on his voluntary return to custody after he had escaped from custody.In March 1995, he filed yet another motion, a "second supplemental motion for reconsideration," requesting an evidentiary hearing on his arguments.

In May 1995, in response to the government's filing of papers in opposition to his motion, Perez filed an "Amendment to Motion for Reconsideration."He claimed that (1) the government breached its promise in the plea agreement to refrain from taking a position regarding Perez's sentence; (2)the district court violated Federal Rule of Criminal Procedure 11(e)(2) by failing to inform Perez that he would be held to the plea agreement even if the court imposed a longer sentence than he expected to receive; and (3)the court accepted the plea agreement without reviewing the PSR.Perez also argued that he received ineffective assistance of counsel.

The district court noted that many of Perez's claims were procedurally barred and that the proper jurisdictional basis for his motion was 28 U.S.C. § 2255, not 18 U.S.C. § 3582.The court, nevertheless, addressed the merits of each of his claims, and denied all the motions.SeeUnited States v. Perez, No. 91 CR. 712(SJ), 1997 WL 27140(E.D.N.Y.Jan. 22, 1997).

D.The Instant Appeal

In March 1997, Perez appealed the district court's order denying all his motions.He limits his attack to the following contentions: (1)the court violated Rule 32(c)(1);(2) the government breached the plea agreement when it apprised the court at the resentencing hearing that the original sentence lay within the appropriate Guidelines range; (3)the court violat...