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United States v. Albarran

United States Court of Appeals, Second Circuit

November 15, 2019

United States of America, Appellee,
v.
Samuel Albarran, Wilson Vasquez, Defendants-Appellants, Francisco Rodriguez, Victor Rivera, Todd Beilby, Nelson Colon, Alfredo Collazo, Miguel Soto, Frank Mrowka, Elio Delima, Emmanuel Fleming, Jose Lugo, Anthony Velez, Jose Albarran, Luis Albarran, Victor Azevedo, Roberto Torres, Defendants.

          Submitted: August 29, 2018

         In 2016, in related prosecutions, Defendants-Appellants Samuel Albarran and Wilson Vasquez each pleaded guilty in the United States District Court for the District of Connecticut (Bolden, J.) to charges of conspiracy to distribute heroin. Albarran also pleaded guilty to possessing a firearm in furtherance of a drug trafficking crime. On appeal, Vasquez urges that his sentence of 151 months' imprisonment is substantively unreasonable. Albarran in turn challenges the District Court's denial of his motion to withdraw his guilty plea. For the reasons set forth further below, neither challenge succeeds. We conclude that the District Court acted within its discretion when it sentenced Vasquez primarily to 151 months in prison. As to Albarran, we decide that the District Court did not abuse its discretion when it denied Albarran's motion to withdraw his guilty plea. Accordingly, we AFFIRM the District Court's June 29, 2017 judgment as to Albarran and June 30, 2017 judgment as to Vasquez.

         Affirmed.

          Daniel M. Perez, Law Offices of Daniel M. Perez, Newton, NJ, for Wilson Vasquez .

          Scott F. Gleason, Gleason Law Offices, P.C., Haverhill, MA, for Samuel Albarran.

          H. Gordon Hall (Marc H. Silverman, on the brief), for John H. Durham, United States Attorney for the District of Connecticut, New Haven, CT.

          Before Lynch, Carney, and Droney, Circuit Judges.

          Carney, Circuit Judge

         In 2016, in related prosecutions, Defendants-Appellants Samuel Albarran and Wilson Vasquez each pleaded guilty in the United States District Court for the District of Connecticut (Bolden, Judge) to conspiracy to distribute heroin. Vasquez pleaded guilty to violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i), and 846. Albarran pleaded guilty to violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Albarran also pleaded guilty to possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (c)(2). On appeal, Vasquez urges that his sentence primarily of 151 months' imprisonment is substantively unreasonable; Albarran in turn challenges the District Court's denial of his motion to withdraw his guilty plea.

         For the reasons set forth below, neither challenge succeeds. Accordingly, we AFFIRM the District Court's June 29, 2017 judgment as to Albarran and June 30, 2017 judgment as to Vasquez.

         BACKGROUND[2]

         In 2014, the Drug Enforcement Administration ("DEA") began investigating a substantial heroin trafficking organization based in Fair Haven, a neighborhood within the New Haven, Connecticut, city limits. Through in-person surveillance, the warranted interception of thousands of telephone conversations, and "controlled buys"-that is, drug purchases effected by undercover agents-the DEA's work revealed a sprawling drug distribution scheme in which Wilson Vasquez was a principal and his half- brother, Samuel Albarran, was a participant. The investigation led to the indictment in 2015 of seventeen individuals, including Vasquez and Albarran.

         I. Wilson Vasquez

         Evidence gathered by the DEA in 2014 and 2015 showed that, during this period, Vasquez regularly acquired heroin in bulk and arranged for his associates to package and redistribute the drug. Every few weeks, Vasquez provided his workers with as much as 500 grams of heroin. Those individuals would then divide the bulk into 25- gram quantities and place the portions into bags, some of which were stamped with a logo associated with Vasquez. Vasquez, who ran these bagging sessions out of his own residence and at other locations in Fair Haven, then retrieved the bagged drugs from his workers and distributed them to his street-level operatives for sale. One of his workers estimated later that he alone had bagged approximately five kilograms of heroin for Vasquez over the course of a year. It also appeared that, during this time, at least one individual using heroin obtained from Vasquez's operation died from an overdose.[3]

         Vasquez was arrested on July 15, 2015. A little over one year later, having reached an agreement with the government, he pleaded guilty to conspiracy to possess with intent to distribute 100 grams or more of a mixture containing heroin, under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i), 846. As part of this plea agreement, the government made a Guidelines sentencing recommendation of 121 to 151 months' incarceration, calculated based on a total adjusted offense level of 31 and criminal history category of II.[4]

         Judge Bolden sentenced Vasquez in June 2017. Before pronouncing the sentence, the judge reviewed aloud the factors that it considered in reaching its decision. The court emphasized the gravity of Vasquez's conduct: for at least one year, he had led a drug trafficking conspiracy that involved sixteen other participants and that harmed "countless victims." Vasquez App'x 121. The judge pointed to the death of one young person following the use of heroin distributed by Vasquez's ring as an example of the gravity of the offense. Offsetting these aggravating circumstances, at least in part, the court recognized Vasquez's relatively limited criminal history (albeit one involving drugs); Vasquez's own substance abuse; and the physical abuse Vasquez had suffered as a child at the hands of his stepfather. Aiming to avoid unwarranted sentencing disparities among Vasquez's co-defendants, the court also cited as benchmarks the sentences it had imposed on them.

         In the end, according significant weight to Vasquez's leadership role and the tremendous toll that heroin addiction was taking on the Fair Haven community, Judge Bolden imposed a sentence on Vasquez of 151 months' incarceration, at the top of the applicable Guidelines range.

         II. Samuel Albarran

         A. The investigation

         Phone calls lawfully intercepted by the DEA from April 24 through 26, 2015, revealed that Vasquez's half-brother, Samuel Albarran, was involved in Vasquez's heroin distribution conspiracy. During several recorded calls, the two men discussed the price of heroin, and Albarran agreed to acquire drugs for Vasquez. Based largely on these intercepted conversations, on July 9, 2015, a grand jury indicted Albarran for conspiracy to distribute and to possess with intent to distribute heroin.

         During the week of July 6, 2015, agents surveilling Albarran saw him in the immediate vicinity of 501 Blatchley Avenue, a three-unit residential building in Fair Haven. About one week after Albarran's indictment, on July 15, law enforcement officers attempted to execute a warrant for Albarran's arrest at the first-floor apartment of 501 Blatchley, an apartment leased by one of Albarran's brothers. After entering the apartment to arrest him, the agents realized that Albarran was not present, but, while conducting a protective sweep of the unit, the officers saw, in plain view, substances they suspected to be heroin and cocaine; a money counter; and four 50-gallon drum-like containers.

         Some officers later returned to the residence with a search warrant in hand, and proceeded to search the first-floor apartment and to examine the 50-gallon drums. They uncovered substantial additional evidence of criminal activity related to the drug trade: they found cocaine, heroin, and marijuana; three scales; drug packaging materials; a kilogram press; six 9mm bullets (these were found in an unmarked plastic bottle on the kitchen counter); drug ledger sheets; cash in the amount of roughly $21, 000; and two firearms. In the apartment's bedroom, the officers also found a Capitol One credit card bill bearing Albarran's name and addressed to him at a location other than 501 Blatchley.

         During the search, an officer spoke to Aida Torrez, a third-floor tenant at 501 Blatchley. Torrez informed the officer that "she knew the resident [of the first-floor unit] as Sam." Gov't App'x 182. Upon being shown Albarran's photograph, she identified him "as the sole resident of the first[-]floor apartment." Id. Torrez recalled that she had last seen Albarran in the rear lot of the house on the preceding day at about 5 pm. Torrez said further that she often saw Albarran leaving the first-floor unit around 7 am, when she was returning home after work.

         In February 2016, about six months after the return of the indictment and search of the apartment, Albarran was arrested. After his arrest, a pretrial service officer who was preparing Albarran's bail report asked Albarran for his "permanent address," and Albarran responded, "501 Blatchley." Albarran App'x 147. (He later disavowed this statement).

         Based on the drugs and firearms recovered from 501 Blatchley, a grand jury returned a superseding indictment charging him with three offenses in addition to the charge made in July 2015 for conspiracy to distribute and to possess with intent to distribute 100 grams or more of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(i) (Count 1). The three additional offenses were: possession with intent to distribute heroin and cocaine, under 21 U.S.C. § 84l(a)(1) and (b)(1)(C) (Count 6); unlawful possession of a firearm by a convicted felon, under 18 U.S.C. §§ 922(g) and 924(a)(2) (Count 7); and possession of a firearm in furtherance of a drug trafficking crime, under 18 U.S.C. § 924(c)(1)(A)(i) and (c)(2) (Count 8). Count 8 cited the two firearms recovered from 501 Blatchley, identifying each by make and serial number.

         In August 2016, the government offered Albarran a plea agreement, as described below. He decided instead to proceed to trial.

         B. Frye hearing

         On September 14, 2016, about one week before jury selection in Albarran's trial was slated to begin, Magistrate Judge Garfinkel conducted a Frye hearing to ensure that Albarran fully understood the terms of the plea agreement that he was rejecting.[5] At the hearing, the government reviewed the proposed agreement's terms, identified the elements of each offense to which Albarran would plead guilty, listed the rights Albarran would forfeit by entering a guilty plea, and described the Sentencing Guidelines' application to his convictions. Thus, the government explained that, under the proposed agreement, Albarran would enter two guilty pleas: one on a lesser included offense of Count 1 (the drug conspiracy);[6] and the second, on Count 8 (possession of a firearm in furtherance of a drug trafficking crime). For its part, the government would seek to dismiss both Count 6 (possession of heroin and cocaine with intent to distribute) and Count 7 (felon in possession of a firearm). Each of Counts 1 and 8 carried a five-year mandatory minimum sentence. But by pleading guilty to the proposed lesser included offense of Count 1, Albarran would avoid exposure to the aggregate ten-year mandatory minimum sentence on Counts 1 and 8 that he could face were he to proceed to trial.

         Discussing in Albarran's presence the evidence that the parties would present at trial, each side candidly acknowledged the strengths and weaknesses of its case. Attorney Jeremiah Donovan, representing Albarran, admitted that he was less confident in Albarran's likely success at trial on the firearms count than he had been earlier. In particular, while he had at first assessed the evidence tying Albarran to 501 Blatchley as "questionable," he considered Albarran's statement to a pretrial service officer, made after his arrest, that his permanent address was 501 Blatchley to be "devastating" to Albarran's defense.[7] Gov't App'x 20-21. For its part, the government conceded that federal agents never saw Albarran "going into and coming out of" 501 Blatchley. Id. at 29. The government nevertheless considered its case to be strong because, to achieve a conviction on the firearm count, it did not need to prove that Albarran "actually resided" at 501 Blatchley; it could instead establish his constructive possession of the two firearms found inside the apartment, knowledge of which Albarran never denied. Id.

         C. Change-of-plea hearing

         One day after the Frye hearing, Albarran reversed course and signed the proffered plea agreement. In it, he acknowledged that "he possessed the [two identified firearms] in violation of 18 U.S.C. § 924(c)" and would "forfeit his interest" in those firearms, a Cobra .380 handgun and a Glock 9mm handgun and related ammunition. Id. at 39, 41.

         Judge Garfinkel duly convened a change-of-plea hearing on September 15. Albarran orally admitted during the hearing that he conspired to distribute a substance containing heroin and that he possessed the two firearms found at 501 Blatchley in furtherance of a drug trafficking crime. During the proceedings, Attorney Donovan confirmed that he had reviewed "every aspect" of the plea agreement with Albarran; he described Albarran as "more involved in this decision than practically any defendant that [he's] ever represented." Id. at 57-58. Judge Garfinkel once again instructed the government to review the plea agreement aloud and methodically for Albarran, explaining the ...


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