Pineda-Peguero v. United States

          MEMORANDUM OF DECISION DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [DKT. 1]

          Hon. Vanessa L. Bryant United States District Judge

         Petitioner, Deivy Pineda-Peguero (“Petitioner” or “Mr. Pineda”), seeks to have his sentence vacated pursuant to 28 U.S.C. § 2255. Mr. Pineda claims that his counsel provided ineffective assistance at sentencing based on his failure to argue for a drug quantity less than the quantity Mr. Pineda stipulated to in the plea agreement. For the foregoing reasons, the Court finds that Mr. Pineda's claim is not meritorious and therefore, the Court denies his motion.

         Background

         On November 19, 2014, Mr. Pineda was indicted and charged with conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. United States v. Gonzalez et al, No. 14-CR-225 (VLB) (hereinafter “Gonzalez”) [Dkt. 17 (Indictment)]. Mr. Pineda was indicted along with eight other individuals. All of the defendants pled guilty. See generally, Gonzalez.

         On July 7, 2015, Mr. Pineda's co-defendant, Mr. Wilfredo Garcia-Quinones, pled guilty to conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. See Gonzalez, [Dkt. 151 (Minute Entry for Change of Plea H'rg)]. In his plea agreement, Mr. Quinones stipulated that the offense conduct involved “a quantity of at least 150 grams, but less than 196 grams, of cocaine base.” See Gonzalez, [Dkt. 155 (Plea Agreement) at 4]. On December 22, 2015, the Court sentenced Mr. Quinones to 60 months in prison followed by a term of supervised release of four years. See Gonzalez, [Dkt. 311 (Hr'g Minute Entry); Dkt. 313 (Judgment)]. The Court entered the judgment against Mr. Quinones on December 23, 2015. See Gonzalez, [Dkt. 313].

         On September 23, 2015, Mr. Pineda pled guilty to conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. See Gonzalez, [Dkt. 221 (Minute Entry for Change of Plea H'rg)]. In the plea agreement, Mr. Pineda stipulated that the offense conduct “involved 280 grams or more of a mixture and substance containing cocaine base, and this quantity was reasonably foreseeable to the defendant.” See Gonzalez, [Dkt. 222 (Plea Agreement) at 1]. Mr. Pineda's plea agreement also included an appeal waiver and Mr. Pineda waived his right to appeal a sentence that did not exceed 71 months. See Gonzalez, [Dkt. 222 (Plea Agreement) at 5].

         At his change of plea hearing, Mr. Pineda acknowledged the drug quantity in response to the Court's question, “And how many grams of cocaine base did you understand?” [Dkt. 7-4 (Ex. D Change of Plea H'rg Tr.) at 34:9-10]. Mr. Pineda answered, “280 or more.” Id. at 34:11. The Court also directly asked the Government how it would show that the conspiracy involved at least 280 grams of cocaine base. Id. at 38:23-25. The Government indicated that it would rely on a wiretap which ran for 60 days and included references to drug quantities in addition to testimony from one of the co-defendants. Id. at 39:1-12. Mr. Pineda acknowledged that he heard and agreed with the Government's statements. Id. at 39:14-22.

         On January 13, 2016, the Court sentenced Mr. Pineda to 71 months in prison followed by a term of supervised release of three years. See Gonzalez, [Dkt. 328 (Hr'g Minute Entry); Dkt. 351 (Judgment)]. The Court entered the judgment against Mr. Pineda on January 15, 2016. See Gonzalez, [Dkt. 351]. At sentencing, Mr. Pineda's counsel made three principle arguments: (1) Mr. Pineda was eligible for the safety valve under U.S.S.G. § 5C1.2; (2) the Court should not consider a prior narcotics charge which had been dismissed; (3) the Court should consider Mr. Pineda's lack of criminal history, successful employment during pretrial detention, and prior work history; and (4) the Court should apply a 1:1 cocaine to crack cocaine ratio under Kimbrough v. United States, 552 U.S. 85, 109 (2007). See Gonzalez, [Dkt. 314 (Def.'s Mem. in Aid of Sentencing) and Dkt. 328 (Hr'g Minute Entry); see also [Dkt. 7-5 (Ex. D Sentencing Tr.)].

         The Court expressly considered each of these arguments. The Court applied the safety valve. [Dkt. 7-5 (Ex. D) at 49:19-21]. The Court also credited counsel's argument that Mr. Pineda's sole prior arrest should not be considered and ordered probation to remove it from Mr. Pineda's presentence report. Id. at 14:3-21. The Court considered Mr. Pineda's criminal history, adjustment to detention, and prior employment. Id. at 50:1-51:13. The Court responded to counsel's argument for a sentence based a 1:1 cocaine to crack cocaine ratio in detail and explained that cocaine is a more dangerous substance because it is cheaper, more available, and more debilitating. Id. at 52:15-55:2.

         On January 20, 2016, Mr. Pineda appealed his sentence. See Gonzalez, [Dkt. 340 (Notice of Appeal)]. On May 24, 2016, counsel for Mr. Pineda moved to withdraw the appeal and to be relieved as attorney because Mr. Pineda wished to raise an ineffective assistance of counsel claim. United States v. Gonzalez, 16-357 (hereinafter “Gonzalez Appeal”) [Dkt. 35 (Mot. to Withdraw)]. On May 26, 2016, the Second Circuit issued a summary order granting Mr. Pineda's motion to relieve his counsel and withdraw his appeal. Gonzalez Appeal, [Dkt. 45 (Order)].

         On January 27, 2016, Mr. Pineda timely filed the instant § 2255 motion. See [Dkt. 1]. Mr. Pineda claims that his counsel was ineffective because at the sentencing of Mr. Quinones, one of Mr. Pineda's co-defendants, evidence was presented that the drug quantity involved in the conspiracy was only 196 grams. Therefore, Mr. Pineda claims his counsel should have argued for leniency based on the discrepancy between the actual drug quantity involved in the conspiracy and the larger quantity, 280 grams, to which Mr. Pineda pled guilty.

         In response, the Government raises four main points. First, the Government argues that Mr. Pineda's claim is based on a misunderstanding of what the Government could prove with respect to Mr. Pineda as opposed to what it could prove with respect to Mr. Quinones. Second, Mr. Pineda stipulated that the conspiracy involved a drug quantity of 280 grams or more. Third, Mr. Pineda's counsel chose to argue that the Court apply the 1:1 cocaine to crack cocaine ratio (which would have resulted in a sentence of 30 to 37 months) as opposed to arguing against the drug quantity stipulated in the plea agreement (which would have resulted in a guideline range of 37 to 46 months). Fourth, Mr. Pineda's counsel adequately represented Mr. Pineda at sentencing by arguing to the Court that Mr. Pineda's demonstrated employment history and lack of criminal history justified a lower sentence.

         Legal Standard

         Section 2255 enables a prisoner in federal custody to petition a federal court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Section 2255 imposes a one year period of limitation, which runs from the latest of “(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to ...