U.S. v. Ramos

• Decision Date: 16 July 1997
• Docket Number: Civil Action No. 96-5046.,Criminal Action No. 90-00431-06.
• Citation: 971 F.Supp. 199
• Parties: UNITED STATES of America v. Edwin RAMOS.
• Court: U.S. District Court — Eastern District of Pennsylvania

971 F.Supp. 199

UNITED STATES of America v. Edwin RAMOS.

Civil Action No. 96-5046.

Criminal Action No. 90-00431-06.

United States District Court, E.D. Pennsylvania.

July 16, 1997.

COPYRIGHT MATERIAL OMITTED

Cheryl Sturm, West Chester, PA, for Petitioner.

Robert A. Zauzmer, Kristin Hayes, Philadelphia, PA, for Respondent.

MEMORANDUM

DuBOIS, District Judge.

Currently before the Court is the Motion of Edwin Ramos under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For the reasons set forth herein, Petitioner's request for an evidentiary hearing will be granted for the limited purpose of further developing the factual record with respect to two issues: (1) petitioner's claim that his counsel was ineffective for failing to appeal his sentence and (2) petitioner's claim that the Government breached the September 11, 1990 Plea Agreement when it reiterated a stipulation relating to sentencing contained in that Plea Agreement at the March 21, 1991 Change of Plea Hearing but then argued to the contrary at sentencing. Excepting only these two issues, on which the Court will rule after the hearing, Petitioner's request for an evidentiary hearing will be denied. Moreover, all claims, excepting those two relating to the two issues to be addressed at the hearing, will be dismissed or denied.

I. Background

Edwin Ramos pled guilty to conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846. He and his co-conspirators, identified as the Ramos Cocaine organization ("RCO"), distributed massive amounts of cocaine and crack cocaine on the 1700 block of Mt. Vernon Street in Philadelphia, Pennsylvania from early 1987 to late 1990. Although the plea to that charge was not presented to the Court until a change of plea hearing on March 21, 1991, the Plea Agreement was signed by petitioner, his attorney and the attorneys for the Government on September 11, 1990. In that Agreement petitioner also agreed to plead guilty to certain counts charged in a separate indictment that was pending before Judge Waldman.¹

Petitioner was scheduled to plead guilty in both matters on November 30, 1990. Petitioner did plead guilty on the morning of November 30, 1990 in the case before Judge Waldman. However, immediately prior to the scheduled afternoon change of plea hearing in this Court, the Government received a telephone call corroborating the accuracy of previously learned information that petitioner had violated the conditions of his bail by obstructing justice. See Nov. 30, 1991, Tr. at 6, 11. After that information was proffered to the Court by the Government, the change of plea hearing in this Court was continued and petitioner's bail was revoked pending a hearing. By Order dated December 13, 1990, the Order of September 19, 1990 authorizing petitioner's pre-trial release was revoked. Petitioner's Motion for Reconsideration was denied after a hearing on January 28, 1991.

Petitioner was sentenced on January 22, 1993. His base offense level for distribution of in excess of fifteen (15) kilograms of crack cocaine under § 2D1.1(a)(3) was 42; pursuant to § 2D1.2(a)(1), two levels were added because all of the distribution occurred within 1,000 feet of a school. Additionally, the offense level was increased two levels for obstruction of justice under § 3C1.1. Petitioner's total offense level was thus 46. Petitioner had six (6) criminal history points, placing him in Criminal History Category III. The Guideline sentence for someone with an offense level of 46 in Criminal History Category III was life imprisonment.

The Government filed a Motion to Permit Departure from Guideline Sentencing Range and from Mandatory Minimum Sentence under § 5K1.1 of the Guidelines and 18 U.S.C. § 3553(e) and the Court granted the Motion. The Court, departing downward from the Guideline imprisonment term of life, sentenced petitioner to 276 months imprisonment to be served concurrently with a prior sentence of thirteen (13) years imposed by Judge Waldman. By Order dated September 9, 1994, the Court reduced petitioner's sentence eighteen (18) months, from 276 to 258 months, so as to credit petitioner for time served under that prior sentence.

II. Discussion

Petitioner makes three claims, each of which will be discussed in turn.² He first contends that his sentence should be reduced in light of a retroactive amendment to the United States Sentencing Guidelines, Amendment No. 505, which, under certain circumstances, allows for a reduction in a defendant's base offense level. This claim has no merit and will be denied. Second, he asserts that his counsel was ineffective in numerous respects. Excepting only petitioner's claim that his counsel was ineffective for failing to perfect an appeal, on which the Court will hold an evidentiary hearing to develop the factual record, the Court concludes that this assertion also has no merit and also will be denied. Finally, petitioner maintains that the Government breached the Plea Agreement in a number of ways. The Court dismisses each of the claims concerning the Plea Agreement, except one, that regarding a stipulation in the Plea Agreement which was reiterated at the March 21, 1991 Change of Plea Hearing. In order to further develop the factual record, the Court will conduct an evidentiary hearing concerning that claim.

A. Retroactive Amendment of Sentencing Guidelines

First petitioner argues that his sentence should be reduced in light of the retroactive application of Amendment No. 505 to the Sentencing Guidelines.³ Pursuant to the retroactive application of that Amendment, the sentencing court may, at its discretion under 18 U.S.C. § 3582(c)(2), reduce the sentences of defendants whose responsibility for the quantity of drugs distributed placed them at a base offense level greater than 38 under the Guidelines in effect at the time of their sentencing. See U.S.S.G., Amendment 505 (retroactive effective Nov. 1, 1995 by § 1B1.10(c)). Because petitioner's base offense level calculated based on drug quantity was 42 under the Guidelines in effect at his sentencing, his sentence must be reevaluated under the retroactive Amendment.

Application of the retroactive Amendment in this case reduces petitioner's base offense level from 42 to 38. The adding of two levels to the base level pursuant to § 2D1.2(a)(1) for distribution within 1,000 feet of a school and two levels for obstruction of justice under § 3C1.1 yields a total offense level of 42.⁴ The Guideline imprisonment range for a total offense level of 42, in any criminal history category, is 360 months imprisonment to life imprisonment.

Thus, the question before the Court is whether it should reduce petitioner's sentence pursuant to 18 U.S.C. § 3582(c)(2) because the guideline sentence under the retroactive amendment is 360 months to life imprisonment instead of life imprisonment. After reviewing the sentencing transcript and the presentence report, and considering petitioner's cooperation, the Court concludes that it should not reduce petitioner's sentence. In departing downward pursuant to § 5K1.1 and 18 U.S.C. § 3553(e), the Court would have imposed the same sentence even if, at the time of sentencing, the Guideline sentencing range was 360 months to life imprisonment. Finally, the Court notes that the extent of the departure, to 276 months, is substantial whether starting from a guideline sentence of 360 months to life, or life.

B. Ineffective Assistance of Counsel

Petitioner contends that his counsel was ineffective in violation of his Sixth Amendment rights.⁵ To prevail on his ineffective assistance of counsel claims petitioner must make the twofold showing required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, petitioner must show that counsel's performance was so deficient that it falls below "an objective standard of reasonableness." See id. at 688, 104 S.Ct. at 2064. Second, petitioner must demonstrate that counsel's "deficient performance prejudiced the defense;" that is, there is a reasonable probability that the result would have been different but for the deficient performance. Id. at 687, 104 S.Ct. at 2064.

Petitioner maintains that his counsel was ineffective for eight reasons. Six of petitioner's arguments have no merit and are addressed seriatim. The Court addresses, but will defer ruling on, a seventh claim — that petitioner's counsel was ineffective for failing to perfect an appeal — until after an evidentiary hearing. Also, the Court need not address an eighth claim, that is, that petitioner's counsel was ineffective for failing to argue at sentencing that the Government breached the Plea Agreement, see Memorandum of Law in Support of Petitioner's Motion at 8, because such a finding of ineffectiveness is dependent upon whether the Government breached the Plea Agreement, an issue which the Court examines in Section II.C of this Memorandum.

First, in light of the fact that proceeds of petitioner's drug offenses were subject to civil forfeiture on September 18, 1990, the day he was taken into custody, petitioner asserts that his counsel was ineffective for failing to file a motion challenging his prosecution on double jeopardy grounds in light of the Supreme Court decision in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). However, even had counsel made such a motion on or before March 21, 1991, the date on which petitioner pled guilty, the motion would have been denied. Halper announced a "rule of reason" for the "rare case ... where a fixed penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he had caused" such that the civil forfeiture amounts to punishment for purposes of the Double Jeopardy Clause. Id. at 449, 109 S.Ct. at 1902. Here, as analysis of caselaw preceeding petitioner's guilty plea corroborates, the civil forfeiture of the proceeds of petitione...