United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [DKT.
Vanessa L. Bryant United States District Judge
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
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
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].
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].
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
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.)].
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.
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)].
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
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.
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 ...