The opinion of the court was delivered by: William W. Caldwell United States District Judge
Defendant, Damaso Cedeno, pled guilty to a violation of 21 U.S.C. § 841(a)(1), possession of powder cocaine with intent to distribute. He was sentenced to the statutory minimum sentence of 120 months. He has filed a pro se motion under 28 U.S.C. § 2255 to vacate his conviction and sentence.
The principal issue presented by the motion is whether trial counsel was ineffective in not properly presenting Defendant's claim that he was entitled to a reduction in sentence based on the safety valve. See 18 U.S.C. § 3553(f). Defendant failed to qualify for a safety-valve reduction because the court concluded that he had not truthfully provided all information he had about the offense before sentencing, as required by subsection (f)(5). Defendant contends that he could have satisfied this requirement absent counsel's ineffectiveness in various ways.
Defendant also makes the following claims of ineffective assistance of counsel: (1) failure to pursue a motion to suppress the cocaine and inducing Defendant to plead guilty instead, or alternatively, failure to advise Defendant to enter a conditional guilty plea so that any suppression issues could be preserved for appeal after a plea of guilty; (2) failure to object at sentencing that the court penalized Defendant for not accepting a cooperation guilty plea; (3) failure to advise the court at sentencing that the court had not asked Defendant if Defendant had read the presentence report (PSR) or had had it read to him, a violation of Fed. R. Crim. P. 32(i)(1)(A); and (4) failure to advise the court that in sentencing Defendant it had not considered the factors set forth in 18 U.S.C. § 3553(a) nor had it stated the reasons for its sentence, as required by 18 U.S.C. § 3553(c).
In June 2005, Defendant was named in a two-count indictment. Count I charged him with possession with intent to distribute about eight kilograms of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1) and count II with traveling in interstate commerce between Georgia and Rhode Island for the unlawful distribution of cocaine hydrochloride.
The cocaine had been found as the result of a traffic stop and a search of Defendant's vehicle, a consensual search according to the state trooper who made the stop. Defendant had filed a motion to suppress the cocaine but when the motion came up for a hearing, defense counsel withdrew the motion, explaining that after he filed it, he had discussed the case with the trooper, had reviewed the trooper's report, and had concluded that the motion had no merit. He so advised Defendant. (Doc. 86, proceedings on withdrawal of suppression motion, p. 3). Counsel also commented that "even though my client's statements to me aren't really in conflict with what the trooper would say, what the trooper would say would, in my opinion, lead to a decision that would be against my client." (Id.). Counsel stated that he was looking into whether the case could be disposed of in some other fashion. (Id. at pp. 2-3). During the same proceedings, Defendant testified that he wanted to withdraw the motion even though he knew the cocaine would be admissible at trial and if he withdrew the motion, he could not raise it again. (Id. at p.3).
On December 28, 2005, Defendant pled guilty to count I. There was no written plea agreement. Defendant agreed that the court would make a finding of drug quantity at sentencing, (doc. 75, change-of-plea hearing, pp. 2-3), and the government said it would dismiss count II.
As part of the guilty-plea proceedings, the prosecutor recited the case against Defendant. Defendant had been traveling north on I-81 and was stopped by a Pennsylvania state trooper for going about ten miles above the speed limit. Defendant was given a warning and was told he was free to leave, but the trooper then asked if Defendant would agree to answer some questions. After asking the questions, the trooper asked if Defendant would consent to a search of his vehicle, and Defendant agreed. The trooper found a steel box welded to the bottom of the vehicle. A search warrant was obtained at that point. A search of the car revealed a small door under the carpet in the rear that opened into the box. Approximately eight kilograms of cocaine were recovered from the box. (Id., pp. 8-9).
At the change-of-plea hearing, Defendant again acknowledged that by pleading guilty he was giving up his right to question the validity of the stop made by the trooper, the trooper's interaction with him at the scene, the trooper's search of the vehicle, and any other matter Defendant might want to pursue in the future. (Id., p. 10).
A PSR was prepared. Defendant had no criminal record, so his criminal history category was I. His offense level was 29, giving him a sentencing range of 87 to 108 months, but under 21 U.S.C. § 841(b)(1)(A), his sentence was 120 months, the statutory minimum for his offense.
Sentencing was originally scheduled for May 4, 2006, but upon Defendant's motion was rescheduled for May 31, 2006. The day before sentencing, Defendant filed a supplemental sentencing memorandum requesting the benefit of the safety-valve provision at 18 U.S.C. § 3553(f). Under that provision, a defendant guilty of a section 841 violation can be given a sentence below the statutory minimum if he satisfies five factors. The only one at issue in this case is the fifth one, whether before sentencing Defendant truthfully provided to the government all information and evidence he had about the offense. A defendant may qualify for the safety-valve reduction even if the information is not useful, or that the government is already aware of it. Id., § 3553(f)(5).*fn1
Defendant asserted he satisfied this factor, in part, by his admissions in an affidavit attached to the sentencing memorandum. In the affidavit, Defendant affirmed that he had agreed with a person named Juan to drive the cocaine to a "certain place in Rhode Island," and "to an individual whose identity was unknown to him." Defendant also admitted he was to be ...