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Mercado v. U.S.A

United States District Court, D. Connecticut

March 29, 2018

JERRY MERCADO, Plaintiff,
v.
U.S.A. Defendant.

          RULING ON HABEAS CORPUS PETITION

          Michael P. Shea, U.S.D.J.

         Jerry Mercado, a federal prisoner, petitions this Court under 28 U.S.C. § 2255 to vacate his sentence, which was imposed after he pleaded guilty to one count of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Mercado faced a statutory maximum of twenty years imprisonment. 21 U.S.C. § 841(b)(1)(C). The parties stipulated in Mercado's plea agreement “that his criminal history when applied to the offense to which he is pleading guilty qualifies him as a Career Offender under § 4B1.1 of the sentencing Guidelines.” (ECF No. 5-3, Exhibit C (“Plea Agreement”) at 3). This stipulation was based on Mercado's two prior convictions for felony controlled substance offenses under Conn. Gen. Stat. § 21a-277(a). The parties also stipulated to a Guidelines range of 151 to 188 months imprisonment. (Id.). At Mercado's sentencing on August 25, 2014, I independently reached the same conclusion with respect to the applicability of the Career Offender enhancement and the appropriate Guidelines range. (ECF No. 5-4, Exhibit D (“Sentencing Transcript”) at 7). I exercised my discretion to impose a sentence outside of the Guidelines range and sentenced Mercado to 120 months imprisonment. (Id. at 9). Mercado now contends that in light of the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016), his prior convictions under Conn. Gen. Stat. § 21a-277 do not constitute controlled substance offenses under § 4B1.1. As such, he argues that he should be resentenced. For the reasons set forth below, I deny Mercado's petition.

         I. Background

         On February 4, 2014, Mercado pleaded guilty to one count of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. He faced a maximum sentence of twenty years imprisonment. 21 U.S.C. § 841(b)(1)(C). In his plea agreement, Mercado stipulated that his criminal history qualified him as a Career Offender under § 4B1.1 of the Sentencing Guidelines. (Plea Agreement at 3). Although the plea agreement does not specify the underlying convictions supporting this qualification, the pre-sentence investigation report (“PSR”) notes that Mercado was twice convicted of possession of narcotics with intent to sell in violation of Conn Gen. Stat. § 21a-277(a), and that each of these convictions constituted a predicate offense for the Career Offender Guideline. (See ECF No. 762[1] (“PSR”) at 12-13). The PSR notes the following relating to the first such conviction, which took place on February 14, 2005:

According to court records, the sentence was imposed concurrent to CR04-581782, CR04-579657, CR02-556051 and CR04-580279. The Court transcript indicates that Mr. Mercado pled guilty to a Substitute Information charging him with Possession of Narcotics with Intent to Sell, Section 21a-277(a). The transcript indicates that the incident occurred in the area of 18 Hamilton Street. A surveillance unit observed Mr. Mercado dealing narcotics. When police moved in for the arrest, they recovered 89 bags of heroin. The bags were stamped with the letters “OK.” At the time of his arrest, officers found the ink stamp and packaging materials in his possession. The lab report confirms that it was heroin. This conviction is a predicate offense for Career Offender.

(Id. at 12). The PSR notes the following concerning the second conviction, which took place at the same proceeding as the first:

The court transcript indicates that Mr. Mercado pled guilty to Sale of Narcotics, Section 21a-277(a). The incident occurred in the area of 586 Zion Street. Police set up surveillance and observed Mr. Mercado flag down a vehicle and exchange a white packet for currency with the operator of the vehicle. A search incident to arrest, revealed 39 bags of white sealed plastic bearing the OK stamp. A field test returned positive for the presence of heroin. The lab report also confirms that it was heroin. This conviction is a predicate offense for Career Offender.

(Id. at 13).

         Section 4B1.1(a) of the United States Sentencing Guidelines[2] - the Career Offender provision - states, “[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” A “controlled substance offense means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. 4B1.2 (internal quotation marks omitted).[3] Finally, “two prior felony convictions means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense . . ., and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of § 4A1.1(a), (b), or (c).” U.S.S.G. 4B1.2(c).[4] Mercado did not object to the conclusion in the PSR that he was subject to the Career Offender provision due to his two prior convictions under Conn. Gen. Stat. § 21a-277(a). (ECF No. 5-4 at 4, 6; PSR at 24).

         I held a sentencing hearing in Mercado's case on February 4, 2014. During the hearing, Mercado did not object to his Career Offender eligibility. I noted the following with respect to the Career Offender provision's applicability: “Because this offense is a felony and a controlled substance offense, and because Mr. Mercado was at least 18 years old when it was committed, also because Mr. Mercado has two prior felony convictions that are controlled substance offenses, Mr. Mercado qualifies as what the Guidelines call a career offender.” (Sentencing Transcript at 7). My calculation of Mercado's Guidelines range matched that of the parties and the PSR: 151 to 188 months of imprisonment. (Id. at 8). I exercised my discretion to impose a sentence outside the Guidelines range, however, and sentenced Mercado to 120 months imprisonment. (Id.).

         Mercado subsequently appealed his sentence, arguing that his sentence was substantively unreasonable. (Trial Docket, ECF No. 1196, Mandate of United States Court of Appeals for the Second Circuit (USCA Ruling) at 2). In his appeal, Mercado did not argue that the Court had improperly counted his prior state convictions as predicates for the Career Offender provision. See Court of Appeals Docket #: 14-3334, ECF No. 78, Brief of the Defendant-Appellant Jerry Mercado at 23-24. Instead, he argued that his circumstances merited a downward departure under the terms of the provision. See Id. (citing U.S.S.G. § 4A1.3(b)(1) (“[i]f reliable information indicates that the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that [he] will commit other crimes, a downward departure may be warranted”); U.S.S.G. § 4A1.3(b)(3)(A) (“[t]he extent of a downward departure under this subsection for a career offender . . . may not exceed one criminal history category”)). The Second Circuit rejected his substantive unreasonableness argument and affirmed Mercado's conviction on November 22, 2016. (See USCA Ruling). On March 24, 2017, Mercado filed this Section 2255 petition in this Court. (ECF No. 1).

         II. Discussion

         Mercado's sole argument in his Section 2255 petition is that his prior convictions under Conn. Gen. Stat. § 21a-277 no longer constitute predicate convictions for the Career Offender provision in light of the Supreme Court's decision in Mathis. His claim is precluded, however, by his stipulation to the application of the Career Offender provision in his plea agreement, along with his failure to raise his claim in his direct appeal. In addition, Mercado cannot demonstrate cause for this failure.

         a. Stipulation in ...


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