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United States v. Pena-Gonell

United States District Court, Eastern District of Pennsylvania

September 9, 2014

RAFAEL PENA-GONELL Criminal Action No. 08-264-1



Petitioner Rafael Pena-Gonell asks this Court to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Pena-Gonell argues his counsel was ineffective because he (1) improperly induced Pena-Gonell to plead guilty, (2) failed to object at the sentencing hearing to the Guidelines enhancements for obstruction and leadership as unconstitutional fact-finding by the Court, and (3) allowed Pena-Gonell to make an “an unimmunized proffer” to federal agents. Because the record conclusively shows Pena-Gonell is not entitled to relief on any of these claims, his motion will be denied without an evidentiary hearing. See United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (explaining no hearing is required if the record clearly resolves the merits of the § 2255 motion).


On October 19, 2009, the day his trial was to begin, Pena-Gonell pleaded guilty to (1) conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A) (Count One), and (2) distribution of 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) (Count Two). Count One carried a statutory maximum sentence of life imprisonment and a mandatory minimum of ten years’ imprisonment.

Count Two carried a statutory maximum sentence of forty years’ imprisonment and a mandatory minimum of five years’ imprisonment.

After the sentencing hearing, and by Order of May 24, 2010, this Court applied a two-level enhancement to Pena-Gonell’s offense level pursuant to U.S.S.G. § 3C1.1 for willfully obstructing or impeding the administration of justice with respect to the investigation, prosecution, or sentencing of his offense because the Court found Pena-Gonell threatened his two codefendants and their families in an effort to influence the outcome of the case. The Court also applied a two-level enhancement pursuant to U.S.S.G. § 3B1.1 because Pena-Gonell played an aggravating role in the offense, finding Pena-Gonell acted as a leader and supervisor of the cocaine distribution conspiracy. Because these two enhancements applied, the Court held Pena-Gonell was not eligible for the U.S.S.G. § 5C1.2 “safety-valve” provision, which allows a court to impose a sentence without regard for the statutory minimum sentence if the defendant meets certain criteria. The Court also refused to grant Pena-Gonell a one-level reduction for timely acceptance of responsibility because he took his plea just before trial in his case was set to begin. Given these findings, the Court determined Pena-Gonell had a total offense level of 34. With a criminal history category of I and an offense level of 34, the Guidelines range of imprisonment was 151-188 months. The Court sentenced him to 168 months (or fourteen years) imprisonment on each Count to run concurrently. Pena-Gonell appealed his sentence, and on June 22, 2011, the United States Court of Appeals for the Third Circuit affirmed.

On October 31, 2011, Pena-Gonell filed a petition for habeas corpus pursuant to 28 U.S.C. § 2255, and, in accordance with this Court’s order, refiled the petition December 2, 2011. In his petition, Pena-Gonell claims he was denied his Sixth Amendment right to effective assistance of counsel for two reasons: (1) he was induced to plead guilty because his counsel failed to adequately explain the terms of the guilty plea agreement to him by telling him he would only have to serve approximately ten years’ imprisonment and by failing to inform him he could be deported, and because his counsel refused to conduct pretrial investigations or share with Pena-Gonell the evidence against him, and (2) at the sentencing hearing, his counsel failed to object to certain Guidelines enhancements as unconstitutional. By Order of January 30, 2014, Pena-Gonell was permitted to amend his petition and assert an additional claim that his counsel was ineffective for allowing him to make an “an unimmunized proffer” to federal agents. Pena-Gonell also requests an evidentiary hearing to clarify and expand the record.


Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may seek to have his sentence vacated, set aside, or corrected if it was imposed in violation of the Constitution or laws of the United States, or is otherwise subject to collateral attack. Relief may be granted only if an error of law or fact occurred, and if such error constitutes a “fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A defendant who seeks relief pursuant to § 2255 based on a claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington by showing (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced the defense. 466 U.S. 668, 687 (1984).

As to the first prong, there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, ” and to be considered deficient, counsel’s performance must fall below “an objective standard of reasonableness” when measured against “professional norms.” Id. at 688-89. To establish the second prong, prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. An error by counsel, even if unreasonable, does not “warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. As set forth above, Pena-Gonell advances his ineffective assistance claim on three separate grounds.

First, Pena-Gonell asserts his counsel induced him to plead guilty by lying about the terms of the plea agreement. Pena-Gonell claims his counsel promised him that his sentence if he pleaded guilty would be approximately ten years, but his actual sentence was fourteen years. Assuming, without deciding, that Pena-Gonell’s attorney promised a sentence of approximately ten years and this promise constitutes deficient performance under the first prong of the Strickland test, his claim fails under the second prong because such a promise did not prejudice Pena-Gonell’s defense. The Third Circuit has repeatedly recognized that while a defendant must be informed of the consequences of pleading guilty, “the law does not require that a defendant be given a reasonably accurate ‘best guess’ as to what his/her actual sentence will be.” United States v. Mustafa, 238 F.3d 485, 492 n.5 (3d Cir. 2001). Even if a “best guess” is given, “an erroneous sentencing prediction by counsel is not ineffective assistance of counsel where . . . an adequate plea hearing was conducted.” United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). In fact, “defense counsel’s conjectures to his client about sentencing are irrelevant where the written plea agreement and in-court guilty plea colloquy clearly establish the defendant’s maximum potential exposure and the sentencing court’s discretion.” Id.; see also United States v. Jones, 336 F.3d 245, 254 (3d Cir. 2003) (holding defendant’s counsel was not ineffective for allegedly promising a sentence of “no more than 71 months” even though defendant received 130 months because defendant was advised in open-court colloquy of the potential maximum sentence and defendant told the court no one had made any threat, promise, or assurance of any kind to convince him to plead guilty); Mustafa, 238 F.3d at 492 (“[A]ny alleged misrepresentations that [defendant’s] former counsel may have made regarding sentencing calculations were dispelled when [defendant] was informed in open court that there was no guarantee as to sentence, and that the court could sentence him to the maximum.”); Masciola v. United States, 469 F.2d 1057, 1059 (3d Cir. 1972) (per curiam) (holding “[a]n erroneous prediction of a sentence by defendant’s counsel does not render a guilty plea involuntary” when the defendant acknowledged he was aware of the maximum potential sentence and was questioned as to the voluntariness of his plea during the plea colloquy).

In this case, even if Pena-Gonell’s attorney erroneously promised a certain sentence, any error was negated because Pena-Gonell received an adequate plea colloquy in which he was made fully aware of both his maximum sentencing exposure and of the court’s discretion to impose a maximum sentence. During the plea colloquy, the Court repeatedly told Pena-Gonell that the maximum sentence he could receive was life imprisonment and he was facing a mandatory minimum term of ten years. See, e.g., Change of Plea Hearing Tr. 10, 25-26, 28-29, Oct. 19, 2009 (hereinafter COP Tr.). Pena-Gonell testified he understood his maximum and minimum sentencing exposure. Id. at 10, 26, 29. The Court also informed Pena-Gonell that no one could guarantee the sentence the Court would impose, and although his lawyer will make a recommendation, the Court would decide the ultimate sentence. Id. at 28-29.[1] Pena-Gonell told the Court he had no questions or reservations about pleading guilty and he was not being forced to plead. Id. at 21, 29. Pena-Gonell stated his attorney answered all his questions, and he was satisfied with his attorney’s representation and advice. Id. at 20-21. Thus, any alleged misrepresentations by Pena-Gonell’s attorney were dispelled when he was informed in open court about the minimum and maximum statutory terms of imprisonment and testified he both understood the consequences of pleading guilty and was not being forced to plead.

Under this first claim, Pena-Gonell also asserts his counsel was ineffective because his counsel failed to inform him he could be deported, as required by the Supreme Court’s holding in Padilla v. Kentucky, 559 U.S. 356, 368 (2010).[2] However, even assuming Pena-Gonell’s counsel’s performance was deficient in this regard, Pena-Gonell’s accusation fails under the second prong of the Strickland test because the alleged deficiency was cured by the Court’s extensive discussion of the issue. At the plea colloquy, the Assistant United States Attorney opined that Pena-Gonell would be deported, and the Court manifested its agreement. COP Tr. 31. Pena-Gonell assured the Court he understood that his guilty plea would have an impact on his status as a resident and he could become subject to deportation. Id. 31-32. Pena-Gonell was explicitly advised in the course of the colloquy that his plea would render him subject to deportation and he acknowledged, under oath, that he understood. Thus, even assuming Pena-Gonell’s counsel failed to warn him about the possibility of deportation, because Pena-Gonell engaged in a detailed and explicit colloquy that focused on the potential immigration consequences of his decision to plead guilty, there is not a reasonable probability that but for counsel’s errors, Pena-Gonell would not have pleaded guilty and would have insisted on going to trial. See Mendoza v. United States, 774 F.Supp.2d 791, 799 (E.D. Va. 2011) (holding that petitioner’s sworn acknowledgment during the Rule 11 colloquy “that her guilty plea would render her subject to deportation” and “that she understood this possible consequence” is dispositive of the prejudice analysis); Brown v. United States, No. 10-3012, 2010 WL 5313546, at *6 (E.D.N.Y. Dec. 17, 2010) (“As courts applying Padilla have recognized, when a defendant learns of the deportation consequences of his plea from a source other than his attorney, he is unable to satisfy Strickland’s second prong because he has not suffered prejudice.”); Gonzalez v. United States, No. 10-5463, 2010 WL 3465603, at *1 (S.D.N.Y. Sept. 3, 2010) (“Assuming that [the defendant’s] trial attorney failed to advise him that he could be deported as a result of pleading guilty, that failure was not prejudicial since, prior to accepting his plea, [the Court] advised [the defendant] that he could be deported as a result of his guilty plea.”); United States v. Cruz-Veloz, No. 07–1023, 2010 WL 2925048, at *3 (D.N.J. July 20, 2010) (concluding “[p]etitioner was not prejudiced by counsel’s alleged failure to inform him of the deportation consequences of his plea because the court informed him of the consequences” in the course of the plea hearing).[3] Thus, Pena-Gonell cannot establish prejudice because the Court and Government counsel advised him of the risk of deportation.

Pena-Gonell also argues his counsel induced him to plead guilty by informing him that he would not conduct any pretrial investigation to determine the possibility of presenting a defense at trial and not giving him an opportunity to review the discovery in the case. Pena-Gonell asserts he told the Court throughout the colloquy he did not have an opportunity to ...

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