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U.S. v. RIVAS

November 9, 2005.

UNITED STATES OF AMERICA,
v.
EDDY MANUEL CHARLES RIVAS.



The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge

MEMORANDUM

Defendant Eddy Manuel Charles Rivas has moved to challenge his sentence pursuant to 28 U.S.C. § 2255. Defendant raises two main arguments: (1) his sentence was imposed in violation of the Sixth Amendment rights recognized in Apprendi v. New Jersey, and (2) he was denied effective assistance of counsel at sentencing. Defendant's Apprendi challenge is procedurally defaulted because he did not bring it up on direct review and he cannot show prejudice. His ineffective assistance of counsel claim is without merit because his counsel's performance was neither deficient nor prejudiced Defendant's interests. Therefore, Defendant is not entitled to relief under § 2255.

I. BACKGROUND

  Defendant is a citizen of the Dominican Republic.*fn1 On April 15, 2004, he pled guilty pursuant to a written plea agreement to conspiracy to distribute and possess with intent to distribute in excess of 5 kilograms of cocaine, 50 grams of cocaine base (crack), and MDMA (ecstacy) in violation of 21 U.S.C. § 846. (Plea Agreement, Dkt. Entry 172, at 1-3.) Congress has specified a mandatory minimum sentence of 10 years and a possible maximum of life imprisonment for this offense. See 21 U.S.C. § 841(b)(1)(A).*fn2 In the plea agreement, Defendant stipulated:
(a) at least 150 grams but less than 500 grams of cocaine base (crack), 15 kilograms but less than 50 kilograms of cocaine, and 1,977 grams of ecstacy were attributable to him; and
(d) he was an organizer or leader of a criminal activity that involved five or more participants.
(Plea Agreement, Dkt. Entry 172, at 7; Tr. of Change of Plea, Dkt. Entry 176, at 12-13.) The Presentence Investigation Report calculated Defendant's total offense level at 37. This was determined using a base offense level of 34 for his drug conspiracy plea;*fn3 plus a 2 level increase because a firearm was possessed in connection with the drug conspiracy;*fn4 plus a 4 level increase for his role as an organizer or leader of the criminal activity;*fn5 minus a 3 level reduction for acceptance of responsibility and timely notification of his intention to plead.*fn6

  The firearm enhancement was based on a shooting incident that happened amid a territorial struggle between Defendant's group and a competing drug trafficking network. (Presentence Investigation Report ¶ 21; Tr. of Sentencing, Dkt. Entry 283, at 7-8.) Hector Roldan-Luna, a member of Defendant's conspiracy, shot two people in the rival group, killing one individual and seriously wounding the other. (Presentence Investigation Report ¶ 21.) Under U.S.S.G. § 1B1.3(a), the specific offense of one person in a jointly undertaken criminal activity may be attributed to other participants. Accordingly, Roldan-Luna's weapon possession was considered in determining Defendant's guideline range because it was a reasonably foreseeable act by a coconspirator in furtherance of the jointly undertaken criminal activity of conspiracy to traffic in drugs. See U.S.S.G. §§ 1B1.3(a), 2D1.1(b)(1).

  Defendant agreed to all the facts used to calculate his total offense level in his plea agreement, except the gun enhancement. (Plea Agreement, Dkt. Entry 172, at 7; Tr. of Change of Plea, Dkt. Entry 176, at 12-13.) Based on a total offense level of 37 and a criminal history category of I, his guideline imprisonment range was 210 to 262 months. Absent the 2 level increase for possession of a firearm, Defendant's guideline imprisonment range would have been 168 to 210 months. Defendant did not object to the Presentence Investigation Report. (Tr. of Sentencing, Dkt. Entry 283, at 2.)

  This Court sentenced Defendant to a prison term of 210 months on April 15, 2004. (Dkt. Entry 224.) Defendant did not appeal his sentence. On April 11, 2005, Defendant moved pursuant to 28 U.S.C. § 2255 to challenge his sentence. (Dkt. Entry 274.)

  II. DISCUSSION

  Defendant presents two claims in support of the § 2255 motion: (1) his sentence was imposed in violation of the Sixth Amendment rights recognized in Apprendi v. New Jersey; and (2) he was denied effective assistance of counsel. He has moved to require the government to file a response to his pro se motion. (Dkt. Entry 282.) The issue before the Court at this stage of the proceedings is whether "the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief," 28 U.S.C. § 2255, unnumbered ¶ 2, thereby obviating a response from the government. See Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion. . . .").

  A. The Apprendi Claim

  Defendant argues that his sentence was imposed improperly under Apprendi v. New Jersey, 530 U.S. 466 (2000), because this Court relied on facts that he did not admit to in his plea agreement. This is not a retroactive collateral attack on his sentence because Apprendi was decided before his sentencing.*fn7 Defendant's failure to pursue a direct appeal from his sentence, however, may now preclude consideration of the issue in this collateral challenge to the sentence.

  As a general rule, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003). See United States v. Frady, 456 U.S. 152, 167-168 (1982) (holding that procedural default rules developed in habeas corpus cases apply in § 2255 proceedings). "The procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massaro, 538 U.S. at 504. Because an Apprendi-based claim was available at the time Defendant was sentenced, the failure to raise it on direct appeal implicates the procedural default rule of Frady, requiring Defendant to show both justifiable cause for the failure to present the issue and actual prejudice. See United States v. Alanis, 88 Fed. Appx. 15, 23 (5th Cir. 2004); United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003); United States v. Jenkins, 333 F.3d 151, 154-55 (3d Cir. 2003), cert. denied, 540 U.S. 932 (2003) (failure to raise Apprendi claim before judgment of conviction became final warrants application of Frady procedural default rule). Defendant, acknowledging the substantial hurdle imposed by the failure to present the issue at time of sentencing or on direct appeal, argues that he can demonstrate both cause and prejudice.

  There is no need to consider at this point the "cause" prong of the two-part rule because Defendant cannot demonstrate "prejudice" to warrant a review of his procedurally defaulted claim. To show prejudice, Defendant must show not merely that there were errors that created a possibility of prejudice, but that those errors "worked to his actual and substantial disadvantage. . . ." Frady, 456 U.S. at 170.

  Under Apprendi, a sentence may be unconstitutional if it exceeds the maximum sentence permissible based on admitted facts. See Apprendi, 530 U.S. at 483. A judge has discretion in imposing a judgment within the range prescribed by statute. Id. at 481-82; see also United States v. Sanchez, 53 Fed. Appx. 208, 210-11 (3d Cir. 2002) ("nothing in Apprendi restricts a judge's ability to exercise his or her discretion in imposing a sentence within the range prescribed by statute"); United States v. Williams, 235 F.3d 858, 863-64 (3d Cir. 2000). Based upon the facts admitted by Defendant, he was exposed to a statutory maximum of life in prison and a Sentencing Guidelines maximum term of 210 months. Defendant's sentence was within both the statutory and guideline maximum terms, even if the two level weapons enhancement was excluded. Defendant admitted to possession of at least 150 grams of cocaine base, 15 to 50 kilograms of cocaine, and 1,977 grams of ecstasy. He also agreed that a four level increase in his offense level based on his role as an organizer or leader of criminal activity was appropriate.*fn8 (Plea Agreement, Dkt. Entry 172, at 7; Tr. of Change of Plea, Dkt. Entry 176, at 12-13.) Defendant's total offense level based on these facts is 38 with a sentencing range of 235 to 293 months. After a three level reduction for timely acceptance of responsibility, Defendant's total offense level would be 35, based solely on the facts he admitted in his plea agreement, with a sentencing range of 168 to 210 months. This Court sentenced Defendant to 210 months imprisonment. This sentence was not greater than the maximum sentence permissible based on facts admitted by Defendant. At best, Defendant can only argue this Court used the wrong guideline range for sentencing. Nonetheless, even viewing the facts in a light most favorable to Defendant and considering the statutory maximum to be the applicable ...


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