Opinion
CV 01-0286 (RR)
June 19, 2001
FREDDY CARMONA, #56594-053 FCI Allenwood, White Deer, PA, for Petitioner, Pro Se.
Paul Schoeman, Assistant United States Attorney, HONORABLE LORETTA E. LYNCH, UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK, Brooklyn, New York, for Respondent.
Memorandum and ORDER
Freddy Carmona was convicted in this court in 1999 after pleading guilty to conspiring to distribute cocaine, 21 U.S.C. § 846 841(b)(1)(B) (1994 Supp. IV 1998), and resisting arrest with the use of a dangerous weapon, 18 U.S.C. § 111(a)(1) (b) (1994 Supp. IV 1998). See United States v. Carmona, CR 99-1152 (E.D.N.Y. 1999)(RR). Carmona is presently incarcerated serving concurrent prison terms of 108 months. The Second Circuit rejected Carmona's direct appeal of his conviction in a summary order, familiarity with which is assumed. See United States v. Carmona, 205 F.3d 1325 (2d Cir. 2000) (unpublished opinion reported at 2000 WL 234473). In January 2001, Carmona filed a pro se motion with this court to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 (1994 Supp. IV 1998). In his original submission, Carmona asserted: (1) that this court erred in enhancing his sentencing guidelines for possession of a firearm, see U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2000), and obstruction of justice,see U.S.S.G. § 3C1.1 (2000); (2) that his sentence runs afoul of the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); (3) that his guilty plea was not knowing and voluntary; (4) that he was arrested without probable cause; and (5) that his narcotics conviction violates the Constitution's Double Jeopardy Clause. The government having responded to these arguments, Carmona now moves to amend his petition (6) to expand on his Apprendi claim, (7) to challenge his indictment for specifying the type of drug involved in his case, and (8) to assert that his trial counsel was constitutionally ineffective.
In his original petition, Carmona also moved for the return of $207,000 seized from his apartment by United States Customs agents. It is a surprising application given that, at the time of sentence, Carmona admitted knowing that this money was being laundered by the same people who arranged for him to pick up approximately four kilograms of cocaine.See 6/21/99 Sentencing Minutes, pp. 19-21. In any event, as the government aptly observes in its memorandum, 28 U.S.C. § 2255 is not a vehicle for seeking the return of seized property. If Carmona truly thinks he is entitled to the return of these drug proceeds, which appears doubtful, he must file an administrative claim with the Customs Service, or, if the time for such filing has expired, a civil action with this court if he can allege some due process denial in the administrative process.
Having carefully reviewed the parties' submissions as well as relevant portions of the original criminal record, the court concludes that Carmona's first five arguments are procedurally barred or without merit for the reasons stated by the government in its excellent submission. The court has not asked the government to respond to Carmona's proposed amendments since its own review reveals that these claims are also patently without merit. Accordingly, the motion to vacate, both as originally filed and as proposed to be amended, is denied.
Discussion
In affirming Carmona's conviction, the Second Circuit briefly discussed the facts underlying his criminal case. See United States v. Carmona, 2000 WL 234473, at **1. This court will not repeat them here except as relevant to the particular claims raised.
I. Challenge to Sentencing Enhancements for Obstruction of Justice and Firearm Possession
On direct appeal, Carmona challenged this court's application of a two-point sentencing guidelines enhancement for possession of a firearm in connection with the charged drug conspiracy. He also challenged the court's application of a two-point enhancement for obstruction of justice. Both arguments were rejected on the merits by the Court of Appeals. United States v. Carmona, 2000 WL 234473, at **2. The government asserts that Carmona cannot seek collateral review of claims already raised and decided against him on direct appeal. This court agrees. See United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). Accordingly, this part of Carmona's motion is rejected as procedurally barred.
II. Apprendi Claim
Although the government submits that Carmona's Apprendi claim is also procedurally barred from collateral review, that argument, based on principles pronounced in Teague v. Lane, 489 U.S. 288, 299-310 (1989);see Jones v. Smith, 231 F.3d 1227, 1236-38 (9th Cir. 2000) (relying onTeague in holding that Apprendi does not apply retroactively in certain circumstances), is much more complex. This court need not, however, rule on this point since, regardless of its procedural posture, Carmona'sApprendi claim must be rejected as without merit.
In Apprendi v. New Jersey, the Supreme Court held that "any fact," other than a prior conviction, "that increases the penalty for a crimebeyond the prescribed statutory maximum" must be treated as an element of the crime and "submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490 (emphasis added). Relying on this holding, Carniona submits that his sentence must be vacated because it was calculated with respect to a drug type and quantity not proved to a jury beyond a reasonable doubt. In fact, Carmona misreads Apprendi and the relevant sentencing statutes and ignores critical parts of the record in his own case.
The appropriate sentence for a violation of 21 U.S.C. § 846, the federal law prohibiting conspiracies to distribute and possess with intent to distribute a controlled substance, is determined by reference to 21 U.S.C. § 841. That statute provides three different sentencing ranges depending on the type and quantity of drug. In the case of a conspiracy to distribute cocaine, a violation involving five kilograms or more of the drug is punishable by a prison term of "not . . . less than 10 years or more than life." 21 U.S.C. § 841(b)(1)(A)(ii)(II). A conspiracy to distribute 500 grams or more of cocaine is punishable by a prison term of "not . . . less than 5 years and not more than 40 years." 21 U.S.C. § 841(b)(1)(B)(ii)(II). A simple conspiracy to distribute cocaine without regard to quantity is punishable by a prison term of "not more than 20 years." 21 U.S.C. § 841(b)(1)(C).
Carmona pleaded guilty to an indictment that expressly referenced 21 U.S.C. § 841(b)(1)(B)(ii)(II). In his allocution, petitioner himself provided the evidence as to drug type and quantity necessary to bring his case within that statutory section. Under oath, he stated that he knew that the package he was transporting in furtherance of the conspiracy contained cocaine. See 1/29/99 Plea Minutes, p. 21. Further, he knew that the quantity of cocaine in the package was approximately four kilograms, or eight times the amount required to impose a sentence under § 841(b)(1)(B)(ii)(II). See id. at 24. Certainly, a defendant's allocution satisfies Apprendi's requirement of proof beyond a reasonable doubt. See United States v. White, 240 F.3d 127, 134 (2d Cir. 2001) (holding that defendant who stipulates to crack in excess of twenty grams satisfies the requirements of the five-to-forty-year sentencing range of 21 U.S.C. § 841(b)(1)(B)); United States v. Champion, 234 F.3d 106, 110 (n. 3 2d Cir. 2000) (per curiam) (defendant's stipulation that crime involved more than 2.6 kilograms of heroin, like a guilty plea, renders a jury finding on the issue unnecessary, and brings the case within the ten-years-to-life range provided in 21 U.S.C. § 841(b)(1)(A)).
Even if Carmona had not specifically allocuted to the drug type and quantity in his case, he would not be entitled to have his sentence vacated. The 108-month term imposed by this court was based on the same sentencing guidelines calculation that would apply regardless of whether Carmona's case fell within 21 U.S.C. § 841(b)(1)(B) or (C). Indeed, Carmona's sentence was well below the twenty-year maximum provided in § 841(b)(1)(C). In United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001), the Second Circuit recently joined nine sister circuits in ruling that Apprendi does not require a guideline factor "unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum" to be submitted to a jury or proved beyond a reasonable doubt. Disputes as to such matters are still appropriately resolved by a sentencing judge applying a preponderance of the evidence standard to the proof. In this case, the unchallenged laboratory analysis of the drugs transported by Carmona by itself provided a preponderance of evidence to support a guideline range and sentence below the twenty-year maximum of § 841(b)(1)(C).
In sum, Carmona's Apprendi challenge must be rejected both because (1) his sentence, below the maximum provided in § 841(b)(1)(C), was based on a guideline calculation supported by a preponderance of the undisputed evidence; and (2) Carmona's own allocution provided the proof beyond a reasonable doubt necessary to bring his case within the sentencing parameters of § 841(b)(1)(B)(ii)(II).
III. Guilty Plea Challenge
Carmona's challenge to the sufficiency of his plea allocution merits little discussion. His claim that he was not advised of the minimum and maximum sentences applicable to his case is belied by the court transcript:
THE COURT: . . . Mr. Carmona, what I will do now is discuss with you the sentencing consequences of a guilty plea. These are both very serious crimes to which you are pleading. Under United States law, a conviction on the drug conspiracy charge, given the level of drugs you are alleged to have been dealing in, carries a minimum sentence of five years in jail, a maximum possible sentence of forty years in jail. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: The crime charging you with assaulting another person to interfere with your arrest by Customs officers, that carries a minimum sentence of zero and a maximum sentence of ten years. This means altogether you face anywhere from five to 50 years in jail. Do you understand that?
THE DEFENDANT: Yes.
1/29/99 Plea Minutes, pp. 14-15. Similarly belied by the record is Carmona's claim that he was not told of his right to a speedy trial:
THE COURT: Now, if you were to plead not guilty, you would have certain rights. I'm going to go over these with you now. If you plead not guilty, you have the right to a speedy and public trial before a jury, with the help of your lawyer. Do you understand?
THE DEFENDANT: Yes.
Id. at 11.
In his amended motion, Carmona now complains that he was not told that, by pleading guilty, he was giving up his right to have a jury decide the nature and quantity of drug involved in his case. In fact, the court did advise Carmona that, at a trial, the government would have the burden of proving all elements of the crime beyond a reasonable doubt, and that a failure to meet that burden would require the jury to return a verdict of not guilty. Id. at 11-12. This sufficed to allow Carmona to make a knowing and intelligent choice about how to proceed.
Because Carmona's particular complaints about his allocution are unsupported by the facts, and because the transcript as a whole demonstrates that Carmona's guilty plea was knowingly and voluntarily entered, this part of his motion is rejected as without merit.
IV. Arrest Challenge
Carmona asserts that he was arrested without probable cause. This argument appears unsupported by any facts. Assuming arguendo, however, that Carmona could establish a Fourth Amendment violation, he would still not be entitled to have his conviction or sentence vacated. To the extent Carmona's arrest claim challenges the government's ability to proceed with his criminal prosecution, the argument must be rejected since any flaw in the arrest was cured by the return of a grand jury indictment.See generally United States v. Contreras, 776 F.2d 51, 53-54 (2d Cir. 1985) (and cases cited therein); Fed.R.Crim.P. 5(c). To the extent Carmona is challenging the evidence seized pursuant to his purported unlawful arrest, he waived this claim by pleading guilty. See United States v. Arango, 966 F.2d 64, 66 (2d Cir. 1992) (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973) (guilty plea ordinarily waives all non-jurisdictional claims arising prior to the guilty plea)). In any event, as the government correctly notes, even unlawfully seized evidence may ordinarily be considered by a court in imposing sentence. See United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992). For all these reasons, this part of Carmona's motion to vacate is denied.
V. Double Jeopardy Challenge
Because court papers in his case refer to both 21 U.S.C. § 846 and 21 U.S.C. § 841, Carmona mistakenly concludes that he has been prosecuted twice for his narcotics activities and that these prosecutions violate the Constitution's Double Jeopardy Clause. In fact, Carmona stands convicted of only one drug charge, a § 846 conspiracy to violate federal narcotics laws. The object of the charged conspiracy was possession of cocaine with intent to distribute, conduct prohibited by § 841. Nevertheless, there was only one narcotics count of conviction. Carmona's double jeopardy claim is rejected as without merit.
VI. Indictment Challenge
In moving to amend his § 2255 petition, Carmona asserts that his indictment was deficient because it specifically charged him with conspiring to possess cocaine when the relevant drug statutes, 21 U.S.C. § § 841(a)(1) and 846, refer generally to "controlled substances." Specifically, he argues that "[t]he grand jury did not have jurisdiction to include the identity of the controlled substance as an element of the offense." See Petitioner's Amendment, p. 18. In support of his argument, Carmona cites cases such as United States v. Reyes, 13 F.3d 638, 640 (2d Cir. 1994) (holding that the "nature of the controlled substance is . . . not an essential element of the charged offense"), and United States v. Barnes, 158 F.3d 662, 670 (2d Cir. 1998) (holding "it is for the judge and not the jury to determine the nature of the drug that a defendant possessed or conspired to possess"). After faulting the prosecution and grand jury for identifying cocaine as the controlled substance at issue in his case, Carmona then asserts that 21 U.S.C. § 841(a)(1) and 846 must be held unconstitutional afterApprendi precisely because on their face they do not require drug type and quantity to be pleaded and proved beyond a reasonable doubt although these factors can increase the prescribed sentencing range.
Carmona once again misinterprets the relevant statutes and case law. As the cases he cites indicate, prior to Apprendi, it was the law in this circuit that the type and quantity of drug involved in a narcotics crime were not essential elements of the offense to be proved at trial. But nothing in these cases ever precluded a prosecutor from particularizing the controlled substance at issue. Indeed, that has been the routine practice of prosecutors in this district for many years. Further, 21 U.S.C. § 812 specifically identifies well over 100 substances "controlled" by federal law. Among these is cocaine. See 21 U.S.C. § 812, Schedule II(a)(4). Reading §§ 841 and 846 in light of Schedule II to § 812, this court finds that it was well within the grand jury's jurisdiction to charge Carmona with "knowingly and intentionally conpir[ing] to distribute and possess with intent to distribute" a particular controlled substance, to wit, cocaine. Further, the specific reference in Carmona's indictment to 21 U.S.C. § 841(b)(1)(B)(ii)(II) satisfied any notice requirement that may be inferred from Apprendi that petitioner stood accused of conspiring to deal in 500 grams or more of cocaine.
Carmona's jurisdictional and constitutional challenges to his indictment and conviction are rejected as without merit.
VII. Challenge to the Assistance of Counsel
Carmona presents a laundry list of complaints against his attorney, charging him with constitutionally ineffective representation. When duplicative claims are grouped together, it appears that counsel is faulted for failing (1) to challenge the validity of Carmona's indictment, (2) to ensure that Carmona knowingly waived his rights at the time of his guilty plea, and (3) to move for resentencing afterApprendi.
In raising a constitutional challenge to his attorney's representation, Carmona assumes a heavy burden. He must demonstrate both (1) that counsel's performance was so unreasonable under prevailing professional norms that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687 (1984), and (2) that counsel's ineffectiveness prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. Accord United States v. Trzaska, 111 F.3d 1019, 1029 (2d Cir. 1997). Plainly, Carmona cannot satisfy these strict standards. Since, as this court has already ruled supra, there is no merit to Carmona's challenges to his indictment, guilty plea, or sentencing, petitioner cannot show that he was prejudiced by counsel's purported omissions regarding these points.
The motion to vacate based on ineffective assistance of counsel is denied.
Conclusion
For the reasons stated, this court finds that Carmona's motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255, both as originally filed and as proposed for amendment, must be denied as procedurally barred and/or without merit. The court also denies a certificate of appealability. The Clerk of the Court is to enter judgment in favor of the United States and mark this case closed.
SO ORDERED.