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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