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United States v. Feliciano

United States District Court, Third Circuit

November 6, 2013

UNITED STATES OF AMERICA,
v.
JHONNY FELICIANO, Defendant.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court is Jhonny Feliciano's ("Feliciano") Motion Pursuant to 28 U.S.C. § 2255. (Doc. 43.) For the reasons that follow, Feliciano's motion will be denied.

I. Background

A. Relevant Factual Background

On May 25, 2010, a one count Indictment was returned against Feliciano in the United States District Court for the Middle District of Pennsylvania. The Indictment charges that on or about April 20, 2010, Feliciano possessed with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1).

Feliciano appeared in court for arraignment on the charge on June 21, 2010. At the arraignment, Feliciano had the assistance of an interpreter. (Doc. 48, 2:1-4.) During the arraignment, the prosecutor, John Gurganus, Jr. ("Gurganus"), placed on the record the maximum sentence as follows:

Judge, the defendant has been charged in a one-count indictment with possession with the intent to distribute cocaine, and the maximum possible sentence for that offense is 20 years' imprisonment, a $1 million fine, up to a life term of supervised release and a $100 special assessment. There is a mandatory minimum three-year term of supervised release that must follow any term of imprisonment, but there's no mandatory minimum prison sentence for this offense.
Those are the possible penalties. Also the defendant is, I note, a legal resident from what I understand, but he would be subject to deportation in the event of a conviction.

( Id. at 3:1-11.) Feliciano was then asked whether he understood the maximum penalty that could be imposed if he was found guilty of the offense. He responded in the affirmative. ( Id. at 3:12-19.) Feliciano then pled not guilty.

Thereafter, the parties entered into a Plea Agreement. The Plea Agreement and Defendant's Acknowledgment of Rights Waived by Guilty Plea were filed on November 30, 2010. (Docs. 19; 20.) Among other provisions, the Plea Agreement provides:

Appeal Waiver. The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the conviction and sentence imposed. Acknowledging all of this, the defendant knowingly waives the right to appeal any conviction and sentence, including a sentence imposed within the statutory maximum, on any and all grounds set forth in Title 18, United States Code, Section 3742 or any other grounds, constitutional or non-constitutional, including the manner in which that sentence was determined in light of United States v. Booker , 125 S.Ct. 738 (2005). The defendant also waives the defendant's right to challenge any conviction or sentence in the manner in which the sentence was determined in any collateral proceeding, including but not limited to a motion brought under Title 28, United States Code, Section 2255. The defendant further acknowledges that this appeal waiver is binding only upon the defendant, and that the United States retains its right to appeal in this case.

( Plea Agreement, ¶ 31.) The Plea Agreement also states: "Deportation. The defendant understands that, if he/she is not a United States citizen, deportation is a possible consequence of his plea." ( Id. at ¶ 27.) The Acknowledgment of Rights similarly provides "as part of the plea agreement, I am waiving my right to appeal and/or challenge my conviction and sentence, and the manner in which it was imposed, " and that "I understand that if I am not a citizen that deportation may be a possible consequence of a conviction." ( Acknowledgment of Rights, ¶ 2.)

On May 26, 2011, Feliciano appeared in court and pled guilty to the Indictment. (Doc. 49.) At the guilty plea hearing, Feliciano had the services of an interpreter. ( Id. at 2:7-10.) While under oath, Feliciano indicated that he had the opportunity to read and discuss the Plea Agreement with his counsel before he signed it. ( Id. at 4:22-25.) Feliciano also indicated that he understood the terms of the Plea Agreement and that it contained the complete understanding between himself and the Government. ( Id. at 5:1-6.)

In reviewing the Plea Agreement, the prosecutor, Todd Hinkley, detailed the salient terms of the agreement, including the appeal waiver. ( Id. at 9:16-11:23.) Feliciano's former counsel, Thomas Sundmaker ("Sundmaker"), addressed the fact that his client was waiving his right to appeal and collaterally attack the judgment of sentence:

Mr. Sundmaker: Yes, your Honor. For the record, I did have the opportunity to discuss prior to entering into the plea agreement with Mr. Feliciano that this is what's called a post- Booker plea agreement. I specifically went through the guidelines and the factors that are applicable to the nature of the offense and the offense gravity score, and also went through the Sentencing Guidelines table with Mr. Feliciano with regard to the difference between a minimum mandatory due to quantities and weights.
Also, part of the negotiations were to a specific weight and amount, between two level guidelines, which put the guideline at a 22 absent basically Mr. Feliciano being found a career offender. It's my understanding that he's a category one. I explained that all to him. We went through all of his post-sentencing rights that he would have were this not a Booker plea. Mr. Feliciano indicated an understanding of that, and that this was the quid pro quo with the government in exchange for the guilty plea, that the government would be giving up certain rights, including the seeking of mandatories and seeking certain guideline enhancements.

( Id. at 12:8-13:2.)

Feliciano was then asked if he was satisfied with giving up his right to appeal based on the bargain that he made with the Government. Feliciano replied in the affirmative. ( Id. at 13:6-9.) Thus, I was "satisfied that the waiver of appeal is both knowing and voluntary." ( Id. at 13:10-11.)

After considering the facts that the Government would present at trial, I determined that the plea was knowing and voluntary and supported by an independent basis in fact containing the essential elements of the offense. ( Id. at 21:9-15.) As a result, Feliciano was adjudged guilty of the offense alleged in the Indictment. ( Id. at 21:15-17.)

Thereafter, the issue of whether Feliciano should be detained pending sentencing was discussed. Specifically, the following exchange took place:

The Court: Mr. Zdaniewicz, has there been any supervision up til now?
Probation Officer Zdaniewicz: Your Honor, there's no problem with pretrial release. And I just want to mention that he is a citizen of the Dominican Republic. Now, whether or not immigration has any intention to lodge a detainer -
Mr. Sundmaker: They did lodge a detainer against one of the co-defendants when were were originally in Scranton - or no, here for the initial appearance. They did not lodge a detainer against Mr. Feliciano. From my understanding, there was no intention at that time ...

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