IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
November 29, 2011
UNITED STATES OF AMERICA
PEDRO RISQUET, DEFENDANT.
The opinion of the court was delivered by: Rufe, J.
Before the Court is Defendant Pedro Risquet's Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255. *fn1 For reasons that follow, the Court finds that the grounds pursuant to which Defendant brings his Motion lack merit. Consequently, the Court will deny the Motion without an evidentiary hearing. *fn2
I. B ACKGROUND
On June 29, 2005, a grand jury in the Eastern District of Pennsylvania returned a nineteen-count indictment against Defendant and seven co-defendants. *fn3 Defendant was charged with conspiracy to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count One); distribution of more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Thirteen); and possession with intent to distribute more than 500 grams of cocaine, also in violation of 21 U.S.C. § 841(a)(1) (Count Seventeen). Six of Defendant's co-defendants (Defendants Raul Estevez, *fn4 Ibel Blanch, Ricardo Cruz, Leopoldo Morell-Estevez, David Gutierrez, and Robert Garcia) pled guilty. Defendant and co-defendant David Calhoun proceeded to trial, which began on April 17, 2006.
At trial, the Government presented evidence of a conspiracy among
Defendant and his co-defendants. The evidence at trial focused
primarily on the role of Defendant and co-defendant Calhoun in the
conspiracy. *fn5 Co-defendant Raul Estevez
was the Government's key witness. Estevez testified that from July
2004 to February 2005, Defendant acted as Estevez's main cocaine
supplier and that Defendant sold cocaine to Estevez on a monthly basis
at a rate of about one kilogram per month. *fn6
On two occasions during the life of the conspiracy
Estevez purchased cocaine from co-defendant Ricardo Cruz.
*fn7 Estevez serviced two customers: Jerry Clarke,
identified in the Indictment as "Person #1," and co-defendant
The mechanics of the conspiracy were straightforward. Estevez would receive phone calls from his customers, who sought to purchase cocaine. Estevez would then call Defendant and arrange for transport of the cocaine from Defendant to Estevez. Estevez would purchase the cocaine from Defendant, typically for approximately $25,000 per kilogram, and then resell it to Calhoun for a profit. To establish the mechanics of Defendant's role in the conspiracy, the Government presented telephone conversations between Defendant and Estevez, and between Estevez and Calhoun, recorded between December 11, 2004, and February 3, 2005. *fn9 The Government played the tapes for the jury, and then questioned Estevez regarding the recorded conversations.
On April 20, 2006, the jury found Defendant guilty of all counts charged. On August 4, 2006, Defendant was sentenced to 20 years imprisonment *fn10 followed by 10 years supervised release, and ordered to pay a special assessment of $300. *fn11 Defendant's appeal *fn12 was denied by the Third Circuit on May 1, 2008. *fn13 On October 6, 2008, *fn14 the Supreme Court denied certiorari.
Thereafter, Defendant timely filed the § 2255 Motion now before the Court, *fn15 and the case was reassigned to this Court. *fn16
Defendant advances two grounds in support of his § 2255 Motion. First, he argues that his counsel was ineffective for failing to object to the Government's Motion to Modify the § 851 Notice. Defendant asserts: "Counsel should have opposed the government's request to make a clerical change, on account of it was aiming a structural change (the government was not referring to a typeset matter) the government was seeking a 20 years minimum mandatory. . . . Counsel should have challenged the government's § 851 notification filed on March 28, 2006, because it was grounded on false information." *fn17 According to Defendant, the effect of granting the Motion to Modify was to increase the mandatory minimum sentence he faced from 10 to 20 years. Second, Defendant claims that the Government constructively amended the Indictment at trial asserting that the evidence at trial established the existence of multiple conspiracies, rather than a single, unique conspiracy as charged in the Indictment. *fn18
II. D ISCUSSION
Title 28, United States Code, Section 2255 provides that a prisoner serving a sentence in federal custody may petition the court which imposed the sentence to vacate, set aside or correct the sentence, by asserting that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." "Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarrage of justice or an omission inconsistent with the rudimentary demands of fair procedure." *fn19 Here, Defendant challenges his sentence on the two grounds mentioned above.
A. Ground One: Ineffective Assistance of Counsel for Failure to Object to the Government's Motion to Modify the § 851 Notice Title 21, United States Code, Section 851(a)(1) provides:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
A § 851 Notice is the written notice that § 851(a)(1) requires be submitted to a defendant prior to trial. The Notice informs the defendant that the Government intends to use defendant's prior conviction(s) to enhance the mandatory minimum sentence upon conviction. The requirement of written notice is jurisdictional and the lack of notice before trial constitutes plain error. *fn20
Here, the Government filed an "Information Charging Prior Offenses" (the § 851 Notice) on March 28, 2006, prior to the commencement of trial. *fn21 Therefore, Defendant was provided with written notice of the Government's intent to use his prior convictions to enhance his sentence in compliance with § 851. Defendant complains, however, that his trial counsel was ineffective for failing to object to the Motion to Modify the Rule 851 Notice made by the Government at sentencing. According to Defendant, the Motion to Modify, which was summarily granted by the Court, had the effect of enhancing his mandatory minimum term of imprisonment from 10 to 20 years.
Defendant misunderstands the effect of the Government's Motion to Modify. As the Court noted at sentencing, the Motion was "to the defendant's benefit," and in fact, had the effect of lowering the mandatory minimum from life imprisonment to 20 years of imprisonment. *fn22
Defense counsel did not object because, as Defendant acknowledges in his Motion, granting the Motion had the effect of reducing Defendant's mandatory minimum and was therefore beneficial to him.
Before being charged by indictment in the instant case, Defendant had been convicted on two separate bills of indictment in Texas. *fn23
In the Rule 851 Notice, the Government stated its intent to use both prior convictions to enhance Defendant's mandatory minimum sentence, increasing Defendant's mandatory minimum term to life imprisonment pursuant to 21 U.S.C. §§ 846 and 841(b)(1)(A). *fn24
The Government took the position at sentencing, however, that Defendant should be deemed to have only one prior felony drug conviction. *fn25 Although Defendant technically had two prior felony drug convictions, both convictions "stem[med] from the same criminal conduct on the same date and would, typically, be charged as one case." *fn26 With only one prior felony drug conviction, Defendant's mandatory minimum sentence was 20 years, rather than life. *fn27
At sentencing, the Government moved to modify its 851 Notice to reflect its acknowledgment that the two prior convictions should be treated as one conviction in enhancing Defendant's sentence.
The use of a prior conviction to enhance a sentence is expressly permitted by statute. *fn28
Further, to treat Defendant's two prior convictions as one prior conviction had the effect of diminishing the enhancement. Thus, not only was the effect of the Motion permissible, it was beneficial to Defendant. His counsel's failure to object was therefore not an error and cannot serve as the basis of an ineffective assistance of counsel claim. *fn29 The Court will not modify Defendant's sentence based on this ground.
B. Ground Two: Constructive Amendment of the Indictment
"[A] court cannot permit a defendant to be tried on charges that
are not made in the indictment against him." *fn30
This right is derived from the Fifth Amendment, which
provides that "[n]o person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury." *fn31 A constructive amendment
violates the Fifth Amendment by depriving a defendant of his right "to
be tried only on charges presented in an indictment returned by a
grand jury." *fn32 A constructive amendment
occurs when, "in the absence of a formal amendment, the evidence and
jury instructions at trial modify essential terms of the charged
offense in such a way that there is a substantial likelihood that the
jury may have convicted the defendant for an offense differing from
the offense the indictment returned by the grand jury actually
charged." *fn33 Where the evidence, the
arguments of counsel, or the jury instructions "broaden the possible bases for conviction from
that which appeared in the indictment," an indictment is
constructively amended. *fn34 "[T]he 'key
inquiry is whether the defendant was convicted of the same conduct for
which he was indicted.' If a defendant is convicted of the same
offense that was charged in the indictment, there is no constructive
Here, the evidence, arguments, and jury instructions did not broaden the scope of the indictment. Defendant was convicted of the same crimes with which he was charged in the Indictment. Defendant argues that although Count One of the Indictment charged a single conspiracy, the evidence presented at trial established two conspiracies. According to Defendant, the testimony of co-defendant Raul Estevez established the existence of two separate conspiracies: one among Estevez, Calhoun, and Defendant, and the other among Ricardo Cruz, Estevez, and Calhoun.
Contrary to Defendant's assertion, however, Estevez's testimony
established the existence of a single conspiracy among Estevez,
Blanch, *fn36 Cruz, *fn37
Morell-Estevez, *fn38 Calhoun,
Garcia, *fn40 and Defendant. As discussed above, Blanch, Cruz, Morell-Estevez, Gutierrez, and Garcia admitted their involvement in the conspiracy and pled guilty; only Defendant and Calhoun went to trial. As a result, Estevez's testimony primarily focused on Calhoun's and Defendant's involvement in the conspiracy. This focus did not have the effect of establishing two separate and discrete conspiracies, but rather highlighted the involvement of Calhoun and Defendant by explaining the transactions in which they were involved. These transactions were a part of the overall conspiracy.
Estevez's testimony, along with the other evidence at trial
established that Defendant acted as Estevez's primary supplier.
*fn41 Calhoun and Clark would contact Estevez to
purchase cocaine. *fn42 Estevez would then
contact Defendant to arrange the transport of a given quantity of
cocaine to Estevez's home in Philadelphia. *fn43
Estevez would purchase cocaine from Defendant, and then
resell the cocaine to Calhoun or Clark. *fn44
Although Defendant acted as Estevez's primary supplier, Estevez
purchased cocaine from Cruz for resale on two occasions.
At trial, counsel for Defendant and for Calhoun advanced the argument that the evidence proved the existence of multiple conspiracies, rather than a single conspiracy as charged in the Indictment. The Court recognized his argument and instructed the jury as follows:
The defendants contend that the government's proof fails to show the existence of an overall conspiracy. Rather they claim they were actually separate and independent conspiracies with various groups or members at various times. Whether there existed a single unlawful conspiracy or any such or many such agreements or an agreement at all is a question of fact for you to decide, you, the members of the jury, in accordance with the instructions which I give you.
When two or more persons join together to follow and further one unlawful desire or purpose, a single conspiracy exists. By way of contrast, multiple conspiracies exist when there are unlawful agreements to achieve distinct purposes.
Proof of several separate and distinct independent conspiracies is not proof of the single overall conspiracy as charged in the indictment, unless you are satisfied that one of the conspiracies proven by the government beyond a reasonable doubt is in fact that single conspiracy.
You may find that there was a single conspiracy despite the fact that there were changes in personnel by termination, withdrawal, additions of new members or different activities, or all of those, so long as you find that some of the coconspirators continued to act for the duration of the conspiracy for the purposes charged in the indictment. The fact that members of the conspiracy are not always identical does not necessarily imply that separate conspiracies exist.
If, however, you find that the conspiracy charged in the indictment did not exist, you must acquit the defendants of the single conspiracy charged in the indictment. This is so even if you find that some conspiracy other than the one charged in the indictment existed, even though the purpose of both conspiracies may have been the same coincidentally or even though there may have been some overlap in membership.
Similarly, if you find that a particular defendant was a member of another conspiracy, and not the one charged in the indictment, you must acquit the defendant of the conspiracy charge.
Therefore, essentially what you must do is determine whether the conspiracy that is charged in count one of the indictment existed and whether these two defendants participated in it. *fn46
Having been so instructed, the jury found Defendant guilty of the single conspiracy charged in the Indictment. As the jury is presumed to follow the Court's instructions, and as the evidence supported the finding that Defendant was guilty of the charged conspiracy, the Court cannot conclude that there was a constructive amendment to the Indictment and will not grant relief on this basis. *fn47
III. C ONCLUSION
For the forgoing reasons, the Court finds that neither ground advanced by Defendant supports granting the § 2255 Motion. In addition, since Defendant has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not be issued. *fn48
An appropriate Order follows.