Opinion
06 Civ. 6050 (JFK), 04 Cr. 1336 (JFK).
August 8, 2007
OPINION ORDER
Petitioner Efren Urena ("Urena") moves pro se to vacate, set aside, or correct his conviction and sentence, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the petition is denied.
BACKGROUND
Urena, a citizen and national of the Dominican Republic, entered the United States in 1989. (PSR ¶ 12, 40.) During the 1990s, Urena was convicted of a string of felony narcotics charges and other crimes in Brooklyn, the Bronx, and Manhattan. (Id. ¶¶ 32-40.) On February 21, 2000, Urena was deported from the United States based on an order of removal issued on March 13, 1997. (Id. ¶ 14.) Shortly thereafter, Urena returned to the United States illegally by boat through Miami, Florida. (Id. ¶ 14.) On November 4, 2004, Urena was arrested by the New York Police Department and found to be an illegal immigrant who did not have permission to reenter the United States after his deportation. (PSR ¶¶ 15, 17).
"PSR" refers to the Presentence Investigative Report submitted by the United States Probation Office on March 14, 2005.
On December 15, 2004, Urena was charged by Indictment No. 04 Cr. 1336 (JFK) on the sole count of illegally reentering the United States after having been lawfully deported, subsequent to the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2).
On January 12, 2005, Urena pleaded guilty to the charge. He admitted that he reentered the United States illegally through Miami, knowing he was not allowed to return. (Pl. 13-14.) Urena conceded that he had been convicted of the attempted sale of a controlled substance in the third degree in Brooklyn in 1991. Id. at 13.
"Pl" refers to the transcript of Urena's January 12, 2005 plea hearing.
The Probation Office calculated that, under the United States Sentencing Guidelines ("Guidelines") Urena's total offense level was 21 and that Urena was in Criminal History Category VI, yielding a Guidelines sentencing range of 77 to 96 months. (PSR ¶ 64.) The Probation Office recommended a sentence of 77 months. (S. 6.) Due to a miscalculation, the Government initially alleged that Urena was in Criminal History Category V, and that his offense level was 21, thus yielding a Guidelines range of 70 to 87 months. (Pl. 10.)
"S" refers to the transcript of Urena's April 27, 2005 sentencing hearing.
In a pre-sentence letter, dated April 13, 2005, Urena's attorney, Sean Hecker ("Hecker"), of the Federal Defenders Office, urged the Court to depart downward from the Guidelines range and requested the imposition of a sentence of 36 months.See Pre-sentence Letter, Apr. 13, 2005, at 1, 4. Hecker offered four grounds for the imposition of a sentence below the advisory Guidelines range: (1) the advisory range of 77 to 96 months "double count[ed]" Urena's criminal history, enhancing both the offense level and criminal history category; (2) imposition of a sentence within the advisory range would result in a sentencing disparity between Urena and similarly situated defendants in "fast track" districts, where offenders may receive reduced sentences due to charge bargaining and stipulated departures; (3) the Guidelines range in this case was unusually harsh, due to the non-violent nature of Urena's illegal reentry; and (4) the nature and circumstances of Urena's offense justified a sentence below the advisory range, specifically because Urena had unlawfully re-entered the United States to be with his children. See id. at 4-6.
On April 27, 2005, the Court sentenced Urena. Before imposing the sentence, the Court indicated that it had received "a well-written and carefully-written letter" from Hecker, as well as a reply from the Government. (S. 2.) During oral argument, Mr. Hecker reviewed Urena's family background and criminal history, especially the early drug convictions which amplified Urena's offense level and criminal history category. See id. 3-5. The Government argued that the Guidelines range was reasonable, given Urena's criminal history. See id. 5.
In imposing sentence, the Court noted that it had considered the advisory Guidelines range and the sentencing factors set forth in 18 U.S.C. § 3553(a), including the need to avoid disparate sentences among similarly-situated defendants. See id. The Court also agreed with the defense that there had been "a certain amount of double counting which has increased the guideline range." Id. 7.
The Court sentenced Urena to 72 months' incarceration (five months below the minimum sentence of the Guidelines range that had been recommended in the PSR), followed by three years of supervised release and a mandatory $100 special assessment. The Court stated, "in my view six years adequately meets all the purposes of sentencing in this case and there is no need for more time." Id. 8.
On or about May 9, 2005, Urena filed a timely notice of appeal. He was still represented by Hecker and the Federal Defenders Office. Urena argued that the sentence should be vacated as unreasonable when compared with lower sentences that are imposed for more serious crimes, generally, and for convictions for illegal reentry in "fast track" districts. The Second Circuit affirmed Urena's conviction on March 22, 2006. See United States v. Urena, 173 Fed. Appx. 72 (2d Cir. 2006).
In a footnote, the Second Circuit observed that
[a]lthough Urena raised the issue of fast-track programs and the sentencing disparities they create in his pre-sentence letter to the district court, it is not clear from the record whether the district court specifically considered fast-track programs when it sentenced Urena to a term of imprisonment five months less than the recommended guideline range. . . . [W]e need not reach this particular issue here, because even assuming the district court should have considered sentencing disparities created by the use of fast-track programs, Urena's circumstances in this case, including his criminal history, more than offset any alleged fast-track disparities.
Id. at 73 n. 2 (emphasis added).
The Second Circuit held that, in light of "Urena's lengthy criminal history following prior illegal entries along with other circumstances presented here, this Court cannot conclude that a sentence five months below the recommended Guideline range was `unreasonable.'" Id. at 73.
Urena now seeks habeas relief on the grounds that (a) his trial and appellate counsel were constitutionally ineffective for (i) failing to preserve Urena's "fast-track" argument for review on appeal, and (ii) failing to raise a constitutional challenge to the use of "fast-track" programs in some jurisdictions but not all; and (b) his constitutional rights to equal protection and due process were violated by the disparate sentencing created by "fast-track" programs.
DISCUSSION
A. Ineffective Assistance of Counsel
To assert a valid claim of ineffective assistance of counsel, a petitioner must satisfy a two-part inquiry. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must show that the representation fell below "an objective standard of reasonableness" under "prevailing professional norms." Id. at 687-88. A reviewing court "`must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' bearing in mind that `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 in the same way.'" United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 689).
Second, the petitioner must "affirmatively prove prejudice," demonstrating that "but for counsel's unprofessional errors, the result of the proceeding might have been different." Strickland, 466 U.S. at 693-94. If both of these elements are satisfied, a petitioner can demonstrate that his counsel's representation "was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. However, even professionally unreasonable errors by defense counsel will not warrant setting aside the judgment in a criminal proceeding unless those errors were prejudicial. Id. at 691. The ineffectiveness inquiry should focus on "the fundamental fairness of the proceeding whose result is being challenged." Id. at 696.
i. Hecker's Failure to Make a Record to Preserve Urena's "Fast-Track" Argument for Appeal
Urena contends that Hecker was constitutionally ineffective for failing to raise at the sentencing hearing the issue of "fast track" sentencing disparities and thus preserve the issue for appellate review.
Hecker's failure to raise the issue of fast-track departures at sentencing does not rise to the level of constitutional ineffective assistance of counsel. First, Hecker's decision not to address expressly the "fast track" issue at the sentencing hearing did not operate to prevent the issue from being reviewed on appeal. At the sentencing hearing the Court stated that it had reviewed Hecker's pre-sentence letter, in which Hecker explicitly addressed the issue of "fast track" departures, and considered the letter before imposing sentence. See S. 2. The Court also noted at the time of sentencing that it had considered "the need to avoid unwarranted disparities among similarly-situated defendants," in accordance with 18 U.S.C. § 3553(a). Id. at 7. The Second Circuit's decision, affirming Urena's conviction, also observed that "Urena raised the issue of fast-track programs and the sentencing disparities they create in his pre-sentence letter to the district court." Urena, 173 Fed. Appx. at 73 n. 2. Thus, the "fast track" issue was sufficiently preserved to be addressed by the Circuit in its adjudication of Urena's appeal.
Even if Hecker's failure to raise the fast-track issue at sentencing precluded the Court from considering the issue in imposing sentence, counsel's omission did not result in sufficient prejudice to Urena. As the Second Circuit noted, "even assuming the district court should have considered sentencing disparities created by the use of fast-track programs, Urena's circumstances in this case, including his criminal history, more than offset any alleged fast-track disparities." Id.
In addition, because sentencing courts are not required to consider disparities created by "fast track" programs (see below), there is no reasonable probability that Urena would have received a more lenient sentence if Hecker had expressly raised the argument at the sentencing hearing, especially in light of the fact that Urena actaully received an inarguably lenient sentence of five months less than the minimum sentence set forth in the Guidelines range recommended by the Probation Office. See Espinal-Martinez v. United States, No. 06 Cov. 0583, 2007 U.S. Dist. LEXIS 47844, at *6-7 (N.D.N.Y. July 2, 2007) ("Since courts do not have to account for the difference between fast-track and non fast-track jurisdictions, Petitioner cannot say with any reasonable probability that had his counsel made an argument alleging that the difference should be factored into sentencing, that the outcome of his sentencing would have been different."). Therefore, Hecker's failure explicitly to raise a "fast-track" argument at the sentencing hearing did not prejudice Urena.
ii. Hecker's Failure to Raise a Constitutional Challenge to the Use of "Fast-Track" Programs
Urena argues that Hecker was ineffective for failing to raise a constitutional challenge to the use of "fast-track" programs in some jurisdictions but not all. (Petr. Br. 14.) Urena's argument lacks merit. The Second Circuit has held that "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable." United States v. Mejia, 461 F.3d 158, 164 (2d Cir. 2006); see also United States v. Pereira, 465 F.3d 515, 522 (2d Cir. 2006). As the Second Circuit explained in Mejia, "no unwarranted disparity is created when one district adopts a policy needed to facilitate the administration of justice in that district . . . [D]isparities created by the exercise of prosecutorial discretion are not `unwarranted.'" 461 F.3d at 162 (citing United States v. Bonnet-Grullon, 212 F.3d 692, 709 (2d Cir. 2000)). Thus, in light of the Circuit's holding in Mejia, Hecker would have had no basis for arguing that Urena's sentence was unreasonable and thus violative of his constitutional rights, solely because the Court declined to impose a lesser sentence that would compensate for the absence of a fast-track program in the Southern District of New York. Accordingly, no prejudice arose from counsel's failure to raise a constitutional issue.
(B) The Violation of Urena's Constitutional Rights of Equal Protection and Due Process
Urena argues that his due process and equal protection rights were violated by the disparate sentencing levels permitted by "fast-track" programs in some districts but not others. (Petr. Br. 13.) Yet, as noted above, "fast-track" programs are constitutional exercises of prosecutorial discretion. As a result, "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable." Mejia, 461 F.3d at 164. Thus, the fact that "fast track" programs exist in certain jurisdictions but are absent from the Southern District of New York is not violative of Urena's constitutional rights to equal protection and due process.
CONCLUSION
For the reasons set forth above, the Court denies Urena's petition for a writ of habeas corpus. Because Urena has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). However, Urena has the right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322 (2003).