Opinion
99 CR 286 (SAS), 00 Civ. 4312 (SAS).
April 2, 2001
Petitioner (Pro Se):
Cilvio Lendof, # 42494-054, FCI Otisville, P.O. Box 1000, Otisville, New York 10963.
For Respondent:
Cheryl A. Krause, Assistant United States Attorney, One Saint Andrew's Plaza, New York, New York 10007, (212) 637-2470.
OPINION AND ORDER
Pro se petitioner Cilvio Lendof moves to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Petitioner has also filed an addendum supplementing his petition. See Addendum to Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 ("Addendum"). His petition is deemed amended to include the additional grounds for relief raised in the Addendum.
To bring the claims contained in his Addendum, petitioner relies on Rule 15(a) of the Federal Rules of Civil Procedure. While the Government argues that the Addendum is a successive petition and should therefore be dismissed for lack of jurisdiction, petitioner's § 2255 claim was never adjudicated on its merits. Accordingly, his Addendum is not a successive petition. See Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998) (explaining that a § 2255 motion is successive only when a prior § 2255 petition "has been decided on the merits").
Rule 15(a) provides that a petitioner "may amend [his] pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Although Rule 15(a) governs amendments to pleadings, Rule 12 of the Rules Governing § 2255 Proceedings permits application of Rule 15(a) to allow petitioners to amend § 2255 petitions in order to assert additional claims. See Bilzerian v. United States, No. 95 Civ. 1215, 1996 WL 524340, at *2 (S.D.N Y Sept. 13, 1996), aff'd, 125 F.3d 843 (2d Cir. 1997); Nunez v. United States, 892 F. Supp. 528, 531 (S.D.N.Y. 1995).
Lendof asserts four grounds in support of his petition: (1) ineffective assistance of counsel; (2) involuntary waiver of his right to bring a downward departure motion; (3) the Court's failure to inform him of the specific drug quantity and type when he entered his guilty plea; and (4) a violation of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), because the quantity of drugs for which he was held responsible was not charged in the Indictment, submitted to the jury, or proved beyond a reasonable doubt. For the reasons discussed below, the petition is denied.
I. BACKGROUND
A. Lendof's Crimes and Charges
The following facts are undisputed. On March 10, 1999, the Drug Enforcement Administration ("DEA") arrested a co-conspirator of Lendof ("CW") who agreed to cooperate. CW provided information about his historical drug deals with Lendof and agreed to contact Lendof to negotiate a heroin transaction. See Presentence Report ("PSR") ¶ 15. After a recorded conversation with CW, Lendof was arrested on March 10, 1999 delivering approximately 197 grams of heroin to CW and an undercover DEA agent. See id. ¶ 16.
On September 14, 1999, petitioner was charged in a two-count Indictment. Count One charged Lendof with conspiracy to distribute cocaine and heroin between December 1997 and March 10, 1999, in violation of Title 21 U.S.C. § 846 and 841(b)(1)(A). Count Two charged Lendof with distribution and possession with intent to distribute approximately 197 grams of heroin on March 10, 1999, in violation of Title 21 U.S.C. § 841(b)(1)(B).
B. Pretrial Proceedings
On October 20, 1999, Lendof entered a guilty plea without a plea agreement. Before his plea, defense counsel, Ronald Garnett, stated that his client "steadfastly denie[d]" any involvement with cocaine, any involvement with heroin beyond three small deals with CW, and any involvement with a gun. See 10/20/99 Tr. at 4-5. Garnett advised his client to enter a plea and litigate the issues of drug quantities and safety valve eligibility at sentencing. See id. at 9-11. At his plea allocution before the Magistrate Judge, Lendof only acknowledged his involvement with the distribution of 197 grams of heroin. See 10/20/99 Plea Tr. at 16-18. Before Lendof entered his guilty plea on October 20, 1999, the Court informed him that,
Transcripts of proceedings are referred to as "Tr." identified by particular dates. Transcripts of a pretrial conference on July 21, 1999, a pretrial conference on October 20, 1999, the plea before the Magistrate Judge on October 20, 1999 and the sentencing proceeding on February 29, 2000, are referred to as "7/21/99 Tr.," "10/20/99 Tr.," "10/20/99 Plea Tr.," and "2/29/00 Tr." and are attached to the Government's Memorandum of Law in Opposition to Cilvio Lendof's Petition Pursuant to 28 U.S.C. § 2255 as Exhibits A, B, C, and D respectively.
Count one of the Indictment charges you with conspiracy to distribute and possess with intent to distribute a controlled substance, to wit, one kilogram and more of mixtures and substances containing detectable amounts of heroin. In addition, the Indictment charges you with distribution and possession with intent to distribute a controlled substance, five kilograms or more of substances containing detectable amounts of cocaine, both in violation of Section 812 and 814(a)(1) and [8]41(b)(1)(A) of Title 21, United States Code. Count One as charged carries a maximum penalty of life imprisonment, with a mandatory minimum sentence of ten years imprisonment. . . . Count Two of the Indictment charges you with intentionally and knowingly distributing and possessing with intent to distribute a controlled substance, in that you did distribute or possess with intent to distribute approximately 197 grams of mixtures and substances containing detectable amounts of heroin. Count Two carries a maximum penalty of 40 years imprisonment, a mandatory minimum of 5 years imprisonment.
10/20/99 Pl. Tr. at 6-8.
Lendof responded "yes" when the judge asked if he understood the Government's burden to prove the conspiracy count. Id. at 7. Lendof then pled guilty to Counts One and Two of the Indictment. Id. at 8. Before accepting his plea, the Court first sought to determine that Lendof understood the plea and its consequences, that the plea was voluntary, and that there was a factual basis for the plea. Id. at 9. The Court asked Lendof a number of questions regarding his educational background, medical history and understanding of his right to a trial. Id. at 9-11. The Court also asked Lendof if he discussed the application of the Sentencing Guidelines with his attorney. Lendof said, "[y]es, he explained everything to me." Id. at 12. When asked if he were making his plea voluntarily, Lendof said, "my own free will and choice." Id. at 12. A sentencing hearing was held on February 29, 2000 and the plea was formally accepted on that date. 2/29/00 Tr. at 15.
In anticipation of sentencing, the Probation Department prepared a PSR in which it calculated Lendof's Guidelines range based only on the heroin involved in the March 10, 1999 transaction. The 197 grams of heroin, which Lendof acknowledged, warranted a base offense level of 26 pursuant to § 2D1.1(c)(7) of the Sentencing Guidelines. See PSR ¶ 20. The PSR assumed that Lendof was safety valve eligible and reduced the offense level to 24 pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 5C1.2. See id. ¶ 21. The PSR also decreased the offense level for Lendof's acceptance of responsibility by three levels, resulting in an offense level of 21 and a Sentencing Guidelines range of 37 to 46 months. See id. ¶ 27. The Probation Department further noted that the Government intended to prove other relevant conduct at the sentencing. See id. at 13.
On February 28, 2000, the day before the scheduled Fatico hearing, a safety valve proffer was held at the request of defense counsel. In this proffer, as in an earlier safety valve proffer on August 12, 1999, Lendof denied any involvement with cocaine distribution and denied engaging in any heroin transactions, other than with CW. Moreover, Lendof denied working with "Felix" to distribute such drugs, denied running his own cocaine and heroin distribution organization, and denied possessing a firearm in connection with his narcotics activities.See Government Opposition Memorandum, Ex. F to the Affidavit of Cheryl Krause, Assistant United States Attorney ("Krause Aff."), ¶ 2. Following the safety valve proffer on February 28, 2000, the Government provided defense counsel with the 3500 material for the witnesses it intended to call at the Fatico hearing, who were prepared to testify to the contrary. See 2/29/00 Tr. at 3; Krause Aff. ¶ 3.
The "Fatico" hearing provides for an evidentiary hearing to decide disputed facts affecting a sentence. See United States v. Fatico, 579 F.2d 707 (2d Cir 1978).
C. Fatico Hearing and Sentencing
On February 29, 2000, the parties appeared for the Fatico hearing. Immediately before the hearing, defense counsel advised the Government that after his client learned the identity and anticipated testimony of the Government's witnesses, he had informed counsel that he did in fact work in "Felix's" cocaine and heroin organization and was responsible for the distribution of cocaine and more heroin than he had previously admitted — although far less than the Government was alleging. See Krause Aff. ¶ 4; 2/29/00 Tr. at 2-4.
During the recess, Garnett asked the Government to extend Lendof a post-plea agreement. See Krause Aff. ¶ 5. At the conference, the Government advised defense counsel that Lendof's false statements exposed him to charges under 18 U.S.C. § 1001 and an obstruction of justice enhancement under the Sentencing Guidelines, and that if Lendof testified falsely at the Fatico hearing, the Government would ask the Court to deny acceptance of responsibility points. See id. ¶ 6. The Government advised Garnett that it expected to prove that the defendant's base offense level should be 38, with enhancements, resulting in an applicable Guidelines range of 360 months to life imprisonment. See id.
Garnett advised the Government that Lendof objected to the Government's enhancements. However, Garnett explained that Lendof did not wish to risk the presentation of contrary proof at the hearing. See id. ¶ 7. Garnett therefore proposed that the parties agree that the Government would not press for a leadership role, a gun enhancement, or for obstruction of justice points, would concede two points for Lendof's acceptance of responsibility, and would stipulate to Lendof's distribution of less than 10 kilograms of cocaine and less than 1 kilogram of heroin. See id. As a result, Lendof's base offense level would be 32, corresponding to a Sentencing Guidelines range of 97 to 121 months, with a 120 month mandatory minimum. See id. In exchange, Garnett proposed that Lendof would acknowledge his ineligibility for the safety valve based, in part, on his failure to truthfully proffer to the Government, and would waive his right to appeal or file a Section 2255 motion. See id. ¶ 8.
Then, in open court, Garnett explained that his client "ha[d] authorized [him] to inform the Court that he d[id] not wish to go forward with the Fatico hearing and that subject to the Government's agreement, he is prepared to accept a stipulation to the mandatory sentence of ten years without eligibility for the safety valve application in his case. . . ." 2/29/00 Tr. at 3. Garnett added that having reviewed the 3500 material with his client, he believed this was "the best course for Mr. Lendof," that he "ha[d] advised [Lendof] that he had an option to go forward" with the hearing although Garnett recommended against it, and that Lendof had accepted counsel's recommendation. Id. at 3.
The written Post-Plea Agreement, signed by the Government, Garnett and Lendof during the recess on February 29, 2000, contained a Stipulated Sentencing Range of 120 to 121 months. See Post-Plea Agreement, Ex. E to the Government Opposition Memorandum, at 2. The Post-Plea Agreement also contained an explicit provision as to safety valve eligibility stating, "[Lendof] does not satisfy the conditions set forth in Title 18, United States Code, Section 3553(f) for relief from the statutory minimum sentence provision." Id. The Post-Plea Agreement also specifically provided that "the defendant will neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated Sentencing Range set forth above." Id. at 3. In addition, Lendof agreed to withdraw a pro se motion he filed for a downward departure under U.S.S.G. § 5K2.0 based on conditions at the Hudson County Correctional Facility. See id. at 2.
When the sentencing resumed that afternoon, the Court carefully reviewed the terms of the Post-Plea Agreement with Lendof as the Court wished "to be sure for the record that [Lendof] understood what [he] agreed to." 2/29/00 Tr. at 9. In response to the Court's inquiries, Lendof acknowledged that he had reviewed the Post-Plea Agreement with Garnett, that he understood its contents, and that he was involved in approximately nine kilograms of cocaine and approximately 214 grams of heroin. See id. at 10. Lendof acknowledged that he understood that the applicable guideline range was between 120 and 121 months. See id. at 11. Lendof also acknowledged that he understood that he did not qualify for "safety valve" relief from the mandatory 120 month minimum because he did not truthfully provide the Government with all information and evidence that he had concerning the offense. Lendof assured the Court that he "w[ould] not appeal or in any way litigate or attack any sentence that [wa]s within the Guidelines range or between 120 and 121 months." Id. at 11-12. Lendof further acknowledged that he had agreed to withdraw his downward departure motion and was doing so voluntarily. See id. at 12-13. Finally, Lendof expressed satisfaction with Garnett's representation. See id. at 15. The Court then sentenced Lendof to the mandatory minimum sentence of 120 months imprisonment. See id. at 21.
D. Lendof's Petitions
Lendof did not file a direct appeal. Rather, on June 2, 2000, Lendof filed the instant petition. Lendof claims, either explicitly or implicitly, that his counsel was ineffective for recommending the Post-Plea Agreement and for failing to press for safety valve eligibility at sentencing. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se complaints are to be construed liberally as they are held to "less stringent standards than formal pleadings drafted by lawyers"). Relying on United States v. Tournier, 171 F.3d 645 (8th Cir. 1999), Lendof claims that he "conceded the truthfulness of [his] involvement" before the sentencing hearing and should have been "rehabilitated under oath before sentencing" so that he would be safety valve eligible. Petitioner's § 2255 Motion to Vacate Sentence ("Pet. Mem.") at 2.
Lendof further seeks to resurrect his withdrawn motion for a downward departure under U.S.S.G. § 5K2.0 based on his claim that his presentence incarceration at the Hudson County Correctional facility was so harsh as to warrant a sentencing departure. Lendof claims that his waiver of his right to raise the downward departure motion was involuntary. See id. at 3-4.
On November 17, 2000, Lendof filed the Addendum to his § 2255 petition in which he contends that his plea should be vacated and/or he should be resentenced in light of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Lendof claims that the quantity of drugs used to determine his Guidelines range is a fact that should have been determined by a jury, rather than the Court. Lendof also claims that the Court failed to inform him that the elements of the offense charged in the Indictment included both heroin and cocaine and failed to specify the minimum quantities of each prior to his guilty plea. See Addendum at 14. Lastly, Lendof reasserts his ineffective assistance of counsel claim, claiming that counsel grossly underestimated the sentence Lendof faced by pleading guilty. See id. at 24.
II. DISCUSSION
A. Standard for Habeas Relief
Relief under 28 U.S.C. § 2255 is available only "for a constitutional error, a lack of jurisdiction, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (internal quotation marks and citation omitted).
Section 2255 provides that a court shall hold an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255.See also Stokes v. United States, No. 00 Civ. 1867, 2001 WL 29997, at *2 (S.D.N Y Jan. 9, 2001); Paulino v. United States, No. 97 Civ. 2107, 1998 WL 214877, at *2 (S.D.N.Y. Apr. 28, 1998) ("Petitioner's unsupported, conclusory allegations are insufficient to require an evidentiary hearing on a habeas corpus petition."). A district court may rely on its own familiarity with the case and deny the motion without a hearing if the court concludes that the motion lacks "`meritorious allegations that can be established by competent evidence.'" Stokes, 2001 WL 29997, at *2 (quoting United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990)).
B. Lendof Has Not Waived His Right to Bring a § 2255 Claim
The Government argues that Lendof's petition is foreclosed by his Post-Plea Agreement in which he explicitly agreed that he "will neither appeal, nor otherwise litigate under Title 28, United State Code, Section 2255, any sentence within or below the stipulated Sentencing Guidelines range." Post-Plea Agreement at 4. Whether that waiver is enforceable will depend on whether the Post-Plea Agreement was entered into voluntarily and knowingly. This determination, in turn, will depend on whether Lendof received effective assistance of counsel during the negotiation of the Post-Plea Agreement. In this regard, Lendof claims that his counsel was "clearly ineffective" in permitting him to plead guilty to the Indictment. See Pet. Mem. at 2; Addendum at 26.
"[A] plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel." United States v. Hernandez, No. 00-1317, 2001 WL 227863, at *2 (2d Cir. Mar. 8, 2001) (citing United States v. Djelevic, 161 F.3d 104, 1007 (2d Cir. 1998)). "The rationale is that `the very product of the alleged ineffectiveness' cannot fairly be used to bar a claim of ineffective assistance of counsel." Id. (quoting Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (holding that a waiver of the right to appeal or file a § 2255 motion is unenforceable when the defendant claims ineffective assistance of counsel with regard to the agreement which effected the waiver)). Accordingly, a number of district courts have found § 2255 waivers to be unenforceable where the asserted ground for challenging the sentence is ineffective assistance of counsel in connection with the plea negotiations and/or agreement. See Moore v. United States, No. 00 Civ. 4560, 2001 WL 253432, at *10 (S.D.N.Y. Mar. 15, 2001) (collecting cases).
Here, petitioner brings two specific ineffective assistance of counsel claims — one relating to safety valve eligibility, the other to counsel's estimate of the length of petitioner's sentence. See Pet. Mem. at 2 Addendum at 26. Because these claims go to counsel's effectiveness at the time of sentencing, not during post-plea negotiations, they do not invalidate Lendof's otherwise validly executed waiver. See Moore, 2001 WL 253432, at *17 ("While ineffectiveness claims relating to counsel's performance in the negotiation and entry of the plea survive a waiver on the ground that these claims go to the knowing and voluntary nature of the plea . . ., there is no similar rationale for not upholding § 2255 waivers in the face of ineffectiveness claims regarding counsel's performance at sentencing."). However, Lendof also claims, albeit implicitly, that his Post-Plea Agreement was entered into without the effective assistance of counsel. See Pet. Mem. at 2; Addendum at 26. Lack of effective assistance of counsel refutes the voluntariness of Lendof's waiver contained in the Post-Plea Agreement. Under these circumstances, Lendof's § 2255 waiver cannot bar the instant petition.
C. Ineffective Assistance of Counsel
1. Legal Standard
To prevail on a claim of ineffective assistance of counsel a defendant must: (1) show that counsel's representation fell below "an objective standard of reasonableness" under "[p]revailing norms of practice;" and (2) "affirmatively prove prejudice" by showing that there is a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984)).
It is well established that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. Indeed, this Court must give counsel "wide latitude . . . in making tactical decisions" and must "indulge a strong presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689. According to the Supreme Court, "there are countless ways to provide effective assistance in any given case," and that even the "best criminal defense attorneys would not defend a particular client the same way." Id. Thus, "[s]trategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690.
2. Application of Strickland Standard to Lendof's Claims
a. The Post-Plea Agreement
Lendof claims that his attorney's advice to admit his involvement in the charged conspiracy and enter into the Post-Plea Agreement was ineffective as a matter of law. See Pet. Mem. at 2. Lendof's claim lacks merit. By entering into the Agreement, Lendof avoided a potentially devastating Fatico hearing and secured significant concessions from the Government. The Government agreed not to press for a leadership role enhancement, a gun enhancement, or obstruction of justice points; agreed to a two level reduction for Lendof's acceptance of responsibility; and, stipulated to Lendof's distribution of less than 10 kilograms of cocaine and less than 1 kilogram of heroin. See Krause Aff. ¶ 7. As a result, Lendof faced a base offense level of 32, corresponding to a Sentencing Guidelines range of 97 to 121 months, with a 120 month mandatory minimum as opposed to the 360 months to life sentence Lendof would have faced if all of the enhancements were applied. See id. Thus, counsel's advice with regard to the Post-Plea Agreement cannot be said to have been objectively unreasonable. Lendof's ineffective assistance of counsel claim in this regard is therefore dismissed.
b. Safety Valve Eligibility
Lendof also contends that his counsel was ineffective for failing to renew his safety valve eligibility argument at the sentencing hearing. A complete and truthful proffer, even moments before the commencement of the Fatico hearing, could have satisfied the statutory deadline for compliance of "not later than the time of the sentencing hearing." 18 U.S.C. § 3553 (f)(5); see also United States v. Schreiber, 191 F.3d 103, 108 (2d Cir. 1999); United States v. Tournier, 171 F.3d at 648 (defendant's "full and truthful cooperation, though grudging and fitful, was completed [just] before the sentencing hearing"). Moreover, the Government specifically told Lendof that he could satisfy the requirement for a safety valve proffer up until the time of the sentencing hearing. See 10/20/99 Tr. at 16. In addition, "[t]he safety valve statute does not specify the form, place, or manner of disclosure."Schreiber, 191 F.3d at 107.
Nevertheless, this claim also lacks merit. In exchange for Lendof's acknowledgment that he was not safety valve eligible, counsel secured significant concessions from the Government, as discussed above. Under these circumstances, counsel's decision to forego safety valve eligibility in exchange for a significantly lighter sentence, which included a reduction for acceptance of responsibility, cannot be faulted. See Roldan v. United States, No. 96 Civ. 959, 1997 WL 214964, at *4 (S.D.N.Y. April 25, 1995) (ineffective assistance claim "frivolous" where petitioner received advantages from the Government in exchange for agreement that waived safety valve relief); Zapata v. United States, No. 96 Civ. 10, 1997 WL 627608, at *2 (E.D.N.Y. Oct. 10, 1997) (counsel's decision not to apply for "safety valve" relief did not fall below objective standard of reasonableness).
Second, Lendof was not prejudiced by his counsel's performance. Lendof bore the burden of establishing eligibility for the safety valve. There is no proof that Lendof's admissions were ever complete and truthful. Indeed, the Government's evidence directly contradicted Lendof's initial two proffers. In addition, the Government had some evidence that Lendof used a weapon in furtherance of the crime. See U.S.S.G. § 2D1.1(b)(1). Under these circumstances, Lendof has failed to prove that he was prejudiced by his counsel's advice. Accordingly, this ineffectiveness assistance of counsel claim must be dismissed.
c. Counsel's Sentence Estimate
Lendof maintains that he received ineffective assistance of counsel because Garnett grossly underestimated the ultimate sentence he faced pursuant to the Post-Plea Agreement. This argument also fails to meet theStrickland test as Lendof was fully apprised of the statutory ten year minimum sentence he faced.
The first count in the Indictment charged an 841(b)(1)(A) violation which carries a mandatory minimum ten year penalty. The Magistrate Judge explicitly informed Lendof of this ten year statutory minimum at his initial plea. Both Garnett and Lendof were fully aware that a lesser sentence was contingent upon safety valve eligibility. Moreover, the 37-46 months sentence initially calculated in the PSR was premised upon safety valve eligibility, timely acceptance of responsibility, and subject to adjustment if the Government proved that Lendof was accountable for cocaine trafficking. See PSR at 6-13. At the time of Lendof's second plea allocution, this Court again informed him that the Guidelines range was between 120 and 121 months. As a result, Lendof cannot claim that his attorney gave him faulty advice.
D. Lendof Knowingly Waived His Motion for a Downward Departure
Lendof moves to reinstate his withdrawn downward departure motion under U.S.S.G. § 5K2.0 based on his claim of overcrowded and inadequate conditions at the Hudson County Correctional facility. Lendof claims that "[he] did not understand nor did my attorney inform me, that a binding plea would in effect waive my right to raise this [downward departure] issue before the court." Pet. Mem. at 3.
The record, however, does not support this claim. The parties expressly agreed pursuant to the Post-Plea Agreement,
that neither a downward nor an upward departure from the Stipulated Sentencing Range set forth above is warranted. Accordingly, the defendant agrees to withdraw his motion for a downward departure based on conditions at Hudson County Correctional Facility and neither party will seek any other departure or seek any adjustment not set forth herein. Nor will either party suggest that the Probation Department consider such a departure or adjustment, or suggest that the Court sua sponte consider such a departure or adjustment.
Post-Plea Agreement at 2-3.
Moreover, the Court clearly asked the petitioner, "you agreed in this letter that you would withdraw your motion for a downward departure and you would not be making any motion for a downward departure. You understand that?" 2/29/00 Tr. at 10. Initially the petitioner responded, "[n]o." Id. Seeking clarity, the Court asked, "you don't understand?"Id. The petitioner responded, "[t]he motion, this motion to decrease time?" Id. at 10-11. In a further effort to ensure clarity the Court said, "you understand that you are voluntarily withdrawing it, is that right?" Id. at 11. The petitioner clearly responded, "[y]eah." Id. Thus, the record adequately supports the conclusion that Lendof knowingly waived his right to bring a motion for a downward departure. See Hernandez, 2001 WL 227863, at *2 ("[D]istrict court was entitled to rely upon the defendant's sworn statements, made in open court with the assistance of a translator, that he understood the consequences of his plea, had discussed the plea with his attorney, knew that he could not withdraw the plea, understood that he was waiving his right to appeal a sentence below 120 months, and had been made no promises except those contained in the plea agreement.")
E. The Court Did Not Violate Rule 11(c)(1)
The record does not support Lendof's claim that the Court failed to provide adequate notice of the offense or drug quantities to which he pled guilty. Petitioner was adequately informed of the nature of the offenses, their maximum penalties, and the mandatory minimum sentences at his first plea allocution. See supra Section I.B.
While the exact drug quantities were initially reserved for litigation at a Fatico hearing, Lendof's Post-Plea Agreement specifically stipulated to the offenses and drug quantities, as well as the 120-month mandatory minimum sentence. On February 29, 2000, when Lendof entered into the Post-Plea Agreement and was sentenced, the Court again went to great pains to ensure that Lendof had a full understanding of the charges against him and the legal effect of the Post-Plea Agreement. The following colloquy ensued at this second plea allocution:
This is a perfectly acceptable practice. See Mitchell v. United States, 526 U.S. 314, 317 (1999) (where defendant "reserved the right to contest the drug quantity attributable to her under the conspiracy count, and the District Court advised her the drug quantity would be determined at her sentencing hearing"). In fact, the "Government's burden to prove drug quantity can be met in the following ways: by the defendant's acknowledgment at the Rule 11 colloquy, or at sentencing, that the amount attributed to the conspiracy as a whole is the correct amount attributable to him; or, by stipulation of the parties that the court determines to have a reasonable factual basis; or by introducing evidence at sentencing that sufficiently established the quantity attributable to the defendant." United States v. Saunders, No. 96-4902, 1998 WL 539482, at *1 (4th Cir. 1998) (unpublished).
The Court: And do you understand that letter describes the two counts in the Indictment, the first count being conspiracy to violate narcotics law, and the second count being the distribution of a controlled substance on March 10th of 1999? You understand that, is that correct?
The Defendant: Yes.
The Court: And you understand that there was a Guidelines stipulation which sets forth your understanding of the Guidelines, and that stipulation says that the base offense level here is 32, because you stipulate that you were involved with nine kilograms of [cocaine]?
* * *
The Defendant: Yes.
* * *
The Court: If the offense level is 30, and there are no prior convictions, the Guideline range would be 97 to 121 months. But because the mandatory minimum sentence here is 120 months, the Guideline range is between 120 and 121 months, do you understand that?
The Defendant: Yes.
The Court: Do you understand also that you do not qualify for the so-called safety valve, the relief from the statutory minimum, because you did not truthfully provide the Government with all information and evidence that you had concerning this offense? Do you understand that?
The Defendant: Yes.
* * *
The Court: So you signed [this Agreement] knowingly and voluntarily?
The Defendant: Yes.
2/29/00 Tr. at 10-11, 13-14. Although a full plea allocution was not given at the time of the Post-Plea Agreement, this colloquy, combined with petitioner's initial plea allocution, clearly satisfied the requirements of Federal Rule of Criminal Procedure 11(c)(1). See United States v. Harrison, No. 99-1642, 2001 WL 209792, at *3 (2d Cir. 2001) (guilty pleas will not be overturned "`when there has been a minor and technical violation of Rule 11 which amounts to harmless error'") (quoting United States v. Renaud, 999 F.2d 622, 624 (2d Cir. 1993)).
F. Lendof's Apprendi Claim
Although Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), does not apply where the defendant is sentenced to a term within the statutory maximum, a brief discussion is in order. Prior to Apprendi, it was well settled that the quantity of drugs involved in crimes charged under sections 841 and 846 was not an element of the offense, and was to be determined by the sentencing judge by a preponderance of the evidence. See United States v. Thomas, 204 F.3d 381, 383 (2d Cir. 2000),vacated, 121 S.Ct. 749 (2001).
Apprendi, however, altered the landscape by holding that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum penalty must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362-63; see also United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001) (denying § 2255 petition based on Apprendi where petitioner sentenced within statutory maximum).
Lendof claims a violation of Apprendi because the Court determined the drug quantity based on Lendof's express admissions in his Post-Plea Agreement. Apprendi is inapplicable where, as here, petitioner was sentenced within the statutory maximum. The Second Circuit has explicitly stated that, "[w]e see nothing in the Court's holding in Apprendi or its explication of the holding that alters a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum. . . ." Garcia, 240 F.3d at 183. Furthermore, while these findings undoubtedly increased the statutory minimum sentence to which Lendof was subject, the law regarding fact determinations that trigger a mandatory minimum sentence has remained unchanged. See Apprendi, 120 S.Ct. at 2361, n. 13 ("We do not overrule McMillan [v. Pennsylvania, 477 U.S. 79 (1986)]. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict — a limitation identified in the McMillan opinion itself.") In any event, this issue requires no further discussion as petitioner knowingly and voluntarily stipulated to the drug quantity. See Valdez v. United States, No. 00 Civ. 9105, 2001 WL 29998, at *1-2 (S.D.N.Y. Jan. 8, 2001) (Apprendi claim is meritless because defendant stipulated to drug quantity in his plea agreement). See also United States v. Walker, 228 F.3d 1276, 1278 n. 1 (11th Cir. 2000) (defendant who pled guilty and accepted contents of presentence report lost any right to appeal on the basis of Apprendi); Panoke v. United States, No. 00-00548, 2001 WL 46941, at *5 (D. Hawaii Jan. 5, 2001) (because petitioner specifically admitted to the amount of drugs in his plea agreement, he cannot allege an Apprendi violation).
Compare 21 U.S.C. § 841(b)(1)(B) (five-year statutory mandatory minimum sentence for crime involving less than one kilogram of heroin or less than five kilograms of cocaine) with § 841(b)(1)(A) (ten-year statutory mandatory minimum sentence for a defendant involved with more than one kilogram of heroin or more than five kilograms of cocaine).
A majority of the circuits that have considered whether Apprendi applies to facts that trigger statutory mandatory minimums have found that it does not. See, e.g., United States v. Robinson, No. 00-1674, 2001 WL 203908, at *3 (1st Cir. 2001) ("No Apprendi violation occurs when the district court sentences a defendant below the default statutory maximum, even though drug quantity, determined by the court under a preponderance-of-the-evidence standard, influences the length of the sentence imposed.") (collecting cases).
McMillan upheld a statute that required the sentencing judge to impose a minimum sentence within the statutory range if the judge found, by a preponderance of the evidence, that the defendant visibly possessed a firearm during the commission of the offense. See 477 U.S. at 91-93.
Lendof explicitly stipulated that the "quantity of cocaine involved in the offense charged in Count One is stipulated to be approximately 9 kilograms and the quantity of heroin involved in the offense charged in Counts One and Two is stipulated to be approximately 214 grams." Post-Plea Agreement at 2. Moreover, during sentencing the Court asked Lendof, "the base offense level here is 32, because you stipulate that you were involved with nine kilograms of . . . cocaine, and approximately 214 grams of heroin, you understand that?" 2/29/00 Tr. at 10. Petitioner responded "yes." Id.
III. CONCLUSION
For the foregoing reasons, petitioner's motion under 28 U.S.C. § 2255 is denied. Because there are serious questions concerning the validity of Lendof's split plea allocution, his voluntary acceptance of the Post-Plea Agreement, and his safety valve eligibility, a certificate of appealability is granted. See Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (a substantial showing exists "if the issues involved in the case are debatable among jurists of reason, or could be resolved in a different manner, or are adequate to deserve encouragement to proceed further"), cert. denied, 121 S.Ct. 175 (2000). The Clerk of the Court is directed to close this case.
SO ORDERED: