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Rodriguez v. United States

United States District Court, D. Connecticut

March 29, 2017

EMILIO RODRIGUEZ
v.
UNITED STATES OF AMERICA

          RULING ON MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          ALVIN W. THOMPSON UNITED STATES DISTRICT JUDGE.

         Petitioner Emilio Rodriguez, proceeding pro se, has filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons set forth below, his motion is being denied without a hearing.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On September 4, 2008, the petitioner was charged with a single count of conspiracy to possess with intent to distribute, and to distribute, one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846, and five counts of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

         The petitioner operated a narcotics-trafficking organization out of his West Hartford, Connecticut residence. He obtained crack cocaine, cocaine, and heroin from suppliers in New York and then distributed narcotics, often on credit, to a customer base of approximately 15 to 20 individuals who, in turn, redistributed narcotics to others.

         The Drug Enforcement Administration (“DEA”) learned about the petitioner's narcotics-trafficking organization in December 2007 from a Confidential Source (“CS-1”). The DEA was able to confirm that CS-1 had received narcotics from the petitioner and a co-conspirator, Nancy Rivera (“Rivera”), who was also in a relationship with the petitioner. Some time after May 20, 2008, it commenced a wiretap investigation of two cell phones utilized by the petitioner and Rivera. By the time the DEA commenced the wiretap investigation, the petitioner had returned to the Dominican Republic for personal reasons.

         During his absence, the petitioner maintained control over the narcotics-trafficking organization. When the petitioner left for the Dominican Republic in May 2008, he gave Rivera a customer list, the amounts each of his customers owed him, and the cell phone that his suppliers and customers would call.

         A jury was selected on February 9, 2012. Then, on February 21, 2012, petitioner pled guilty to Count One of the Indictment, which charged him with conspiracy to possess with intent to distribute, and to distribute, 1 kilogram or more of heroin. In the plea agreement, the government agreed to recommend that the court reduce petitioner's Adjusted Offense Level under § 3E1.1(a). The plea agreement states that “[t]he defendant and the Government agree that the drug quantities which form the basis of the offense to which he is pleading guilty and which includes the defendant's relevant and readily foreseeable conduct, U.S.S.G. § 1B1.3, app. note 1, is 1 kilogram of heroin and 2 kilograms of cocaine[.]” Plea Agreement, at 3. During the guilty plea proceeding, the petitioner represented that he had entered into the plea agreement freely and voluntarily, without threats, force, intimidation or coercion of any kind. He stated that he was completely satisfied with the representation and advice received from his attorney.

         The presentence report calculated the Base Offense Level for the petitioner's offense to be 32 under Guideline § 2D1.1(c)(4) based on the stipulation in the plea agreement that the drug quantities that formed the basis for the petitioner's offense were 1 kilogram of heroin and 2 kilograms of cocaine. There was a two-level enhancement under § 2D1.1(b) for possession of a firearm in connection with the offense. There was an additional two-level enhancement pursuant to § 3B1.1(c) based on the petitioner managing and supervising Nancy Rivera. There was also a two-level reduction for acceptance of responsibility under § 3E1.1(a), resulting in a Total Offense Level of 34.

         At sentencing, the petitioner objected to (i) the enhancement pursuant to § 2D1.1(b) for possession of a firearm; (ii) the finding that he did not qualify for the safety valve under Guideline § 5C1.2(a); and (iii) the increase for role pursuant to § 3B1.1(c). With respect to the enhancement under § 2D1.1(b), the court concluded that it was not necessary to make a finding with respect to the firearm because the court's finding with respect to role in the offense was dispositive on the question of whether the petitioner was eligible for the safety valve. The court found that the evidence established that the enhancement for role pursuant to § 3B1.1(c) was proper, and consequently, the petitioner was not eligible for the safety valve.

         The court's finding that the government had proven that the enhancement for role in the offense was proper was based on Rivera's testimony and wiretap evidence. There were specific instances in which the wiretap evidence corroborated Rivera's testimony that she operated at the direction of the petitioner and was his helper. The court's finding was as follows:

If I were going to base a finding solely on her testimony, I would have asked a few more questions. But her testimony is corroborated by the calls that were played today and are in the binder that was handed up. For instance, she has testified that she operated at the command of Mr. Rodriguez and she was his helper. When we look at Government's Exhibit 23, the telephone call from July 12, 2008, there's an exchange between her and Mr. Tisane where they're talking about proceeding and she says, "All right, wait. Wait for Negrito to call you. Negrito is going to call you now." And that corroborates her testimony as to how things worked.
Also, the call on July 12, 2008, which is Government's Exhibit 24, it has the exchange between the defendant and Ms. Rivera where he is saying "When it comes, it's there, you let me know. There are -- for that you have to throw in four of them, " which corroborates her testimony that he is telling her how to add a cutting agent. Then we go to Government's Exhibit 31, which follows and is paired with Government's Exhibit 30. That's the three-way call where Mr. Rodriguez comes on. That was on July 14, 2008. And he comes in and confirms that Ms. Rodriguez is going to still owe you something there. I don't know. Which I find also corroborates her version of events.
Then the call that is really most telling here, which occurred on August 21, 2008, is between Ms. Rivera and Mr. Tisane. Ms. Rivera is saying she hasn't been able to get a hold of that guy and Mr. Tisane is saying, "I told him. Well, what's up with him?" And Ms. Rivera says, "Now I haven't been able to get a hold of him, and until I do, there's nothing I can do because ...

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