United States District Court, S.D. New YorkNov 21, 2001
01 civ. 1178 (HB) (S.D.N.Y. Nov. 21, 2001)

01 civ. 1178 (HB)

November 21, 2001



Petitioner Janette M. Andreu ("Andreu"), pro se, moves to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, the motion is denied and the petition is dismissed.

Robert Scheef, a third-year student at Fordham University School of Law, provided substantial assistance in the research and drafting of this opinion.


On December 1, 1997, Andreu pleaded guilty, without the benefit of a plea agreement, to narcotics offenses. Sentencing hearings were held on April 29 and May 21, 1998. At the April 29 hearing, defense counsel summarized Andreu's objections to the pre-sentence report ("PSR"), including an objection to the recommendation that Andreu receive a two level enhancement for her role as an organizer. Over defense counsel's objection, I ruled that Andreu was an organizer of the drug distribution operation and made the following statements on the record: "[S]he was a distributor. It was an organization that she controlled. She controlled it from Jacksonville, Florida. And, essentially, Nascoma and Arias were, as they say, simply the daily managers of the operation." (Trans., Apr. 29, 1998, at 14.) Andreu's counsel renewed the objection at the May 21, 1998 sentencing hearing, and I once again rejected it. ( Id. at 4.) Following this second hearing a sentence of 120 months was imposed.

Andreu then engaged new counsel, Jonathan Marks ("Marks"), and appealed to the Second Circuit Court of Appeals, claiming that 1(1) did not make a specific finding as to the amount of narcotics attributable to her and (2) did not make sufficient factual findings about her role in the narcotics conspiracy to warrant the two-point organizer enhancement. The Second Circuit remanded the case solely for the purpose of making specific factual findings as to the drug quantity involved. United States v. Arias, No. 98-1327, 1999 WL 48780 (2d Cir. Feb. 1, 1999). Pursuant to the remand, I issued a separate order in which I made additional findings regarding drug quantity. United States v. Andreu, No. 96 Cr. 1145 (S.D.N.Y. filed Aug. 11, 1999).

Although the Second Circuit did not remand on the second issue raised on appeal, i.e., whether I made sufficient factual findings on her role in the conspiracy, for purposes of this motion I do not construe this silence an affirmance of my findings in the May 21, 1998 sentence.

On January 24, 2000, Andreu came before me to be re-sentenced consistent with my August ii, 1999 order. In a letter from Marks dated January 20, 2000, Andreu again objected to the finding that she was subject to a two-point enhancement due to her role as an organizer. Marks conceded the role enhancement at this hearing. (Trans., Jan. 24, 2000, at 5, 14.) While I reduced her sentence to 85 months as a result of my finding of a lesser quantity of a controlled substance and Andreu's significant rehabilitative efforts, I noted that "[t]his defendant was a reasonably big time narcotic trafficker. And I don't want you to think for a moment that I'm unmindful of what was happening with her movements and direction of people coming to and from New York with controlled substances." ( Id. at 18.)

On January 18, 2001, Andreu filed the present petition. She makes the following claims: (1) that the Court improperly attributed to her a role as an organizer; (2) that her sentence violated the "Narcotics and Rehabilitation Addiction Act;" (3) she received ineffective assistance of counsel; and (4) that she received a sentence "on the high end of the Guidelines range." Subsequent to the filing of the government's response to this petition, Andreu submitted a brief which she characterized as both a response to the government's brief; and as a successive motion. In it, Andreu raises issues not included in her first petition. Specifically, she argued: (1) that statements she made during a plea negotiation were unlawfully used against her at sentencing; (2) that her attorneys' failure to object to such use constituted ineffective assistance of counsel, (3) that the government reneged on a promise of a two point downward departure for information on the location of Andeu's co-defendant Jimmy Wright, and (4) that her attorney's failure to address this promise before the court constituted ineffective assistance of counsel. However Andreu may have characterized this second submission, I treat it as an amendment, rather than as a second or successive petition. Further, I find under Fed. R Civ. P. 15(c) that the motion sufficiently relates back to the original petition to afford the government fair notice of the claims. See Fama v. Comm'r of Corr. Serv., 235 F.3d 804, 815 (2d Cir. 2000) (applying Fed.R.Civ.P. 15(c) to § 2254 habeas petition).

The Narcotic Addict Rehabilitation Act was repealed in 1984. Pub.L. 98-473, Title II, § 218(a)(6), 98 Stat. 20271 (1984). The repeal became effective in 1987. As such, this claim is a non-starter and is dismissed.

Because a term of imprisonment that fails within the Guidelines' range is not objectionable on the basis of the length of the sentence alone, this claim is dismissed. For a sentence to be excessive, it must either be so disproportionate to the offense as to violate the Eighth Amendment to the U.S. Constitution, or it must result from a misapplication of the Guidelines' factors. Neither claim is made here, and neither could be made here. First, sentences that fail within the range prescribed by the Guidelines do not present an Eighth Amendment concern, White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); and second, Andreu has not shown that the sentence "on the high end" of the range resulted from a misapplication of the Guidelines. Indeed, I initially sentenced Andreu to the statutory minimum of 120 months in jail, well below the range of 262-327 months recommended in the PSR, see PSR, April 20, 1998, at 27, and after the remand from the Second Circuit reduced her sentence to 85 months.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPM), to file a second or successive petition a petitioner must obtain prior authorization from the Court of Appeals. Under Second Circuit law, "a § 2255 petition is "second or successive' if a prior § 2255 petition, raising claims regarding the same conviction or sentence, has been decided on the merits. This remains true even if the latter petition purports to raise new claims." Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998) (citations omitted). Here, were the Court to dismiss these later-asserted habeas claims on the ground that they were not asserted in the petition, Andreu would be barred from resurrecting them in a second petition by virtue of this "Opinion and Order" which decides claims that were raised in the instant petition.


A. The Two Point "Organizer" Enhancement

Andreu makes two arguments with respect to the two point sentence enhancement for her role as an organizer. First, she argues that she was not, in fact, an organizer under § 3B1.1 of the Federal Sentencing Guidelines ("Guidelines"). Second, she contends that the Court made insufficient factual findings pursuant to Fed.R.Crim.P. 32(c)(l) to support the two point role enhancement. Neither argument has merit.

Under the Guidelines, a defendant's offense level can be increased by two points if she "was an organizer, leader, manager, or supervisor in any criminal activity." U.S.S.G. § 3B1.1(c) (2000). A person is a manager or supervisor "if [s]he exercise[s] some degree of control over others involved in the commission of the offense" or "play[s] a significant role in" recruiting or supervising lower-level participants. United States v. Payne, 63 F.3d 1200, 1212 (2d Cir. 1995) (internal citations and quotations omitted). It is clear that Andreu's conduct meets the definition of a "manager" or "supervisor" for purposes of the role enhancement. Andreu recruited co-defendants Maliah Cleophus Tunstall ("Tunstall") and Jimmy Wright, and supervised their purchase and transportation of drugs.

Indeed, Andreu admitted that she controlled Tunstall and Jimmy Wright through statements she made at the December 1, 1997 allocution. The government, in summarizing its prima facie case, stated:

This defendant was heard having conversations over one of the wire tapped telephones at least, probably a couple of them, with various of the other defendants in the case wherein she discussed sending a couple of messengers up to New York. She sent two different messengers on two occasions. One Tunstel [sic], who is named in the indictment, and one Jimmy Wright, who is named in the indictment. She had various discussions with people here in New York about those people retrieving heroin from New York and bringing that heroin back down to Jacksonville, Florida, to her to be distributed down in Jacksonville, Florida.

(Trans., Dec. 1, 1997, at 17-18.) I then inquired of Andreu as follows:

THE COURT: Mr. Tunstel [sic] and Mr. Wright, were they, in fact, couriers that you sent up to bring back or to take a controlled substance, either to take it to New York or to bring it back from New York to Florida?

( Id. at 19.) In response to my question, Andreu stated, "Yes, sir." (Id) It is well established that a plea of guilty is an admission of all facts well pleaded. United States v. Sasso, 215 F.3d 283, 285 (2d Cir. 2000); United States v. Smith, 407 F.2d 33, 34 (2d Cir. 1969) (dismissing § 2255 petition where defendant raised issues of fact that contradicted his guilty plea). Put another way, Andreu cannot now argue that she did not intend to distribute the drugs she ordered Tunstall and Jimmy Wright to bring back to her. As Andreu was a manager or supervisor of at least two participants in the drug conspiracy, the two point enhancement pursuant to § 3B1.1(c) was warranted.

Moreover, in her "Response to Government's Opposition to 28 U.S.C. § 2255" Andreu states "Jimmy Wright and Mitch Tunstall did, in fact, travel to New York for the purpose of making purchase(] for Ms. Andreu." Id. at 9.

In order to impose the role enhancement, the criminal procedure law requires that I make specific factual findings. Fed.R.Crim.P. 32 (c)(1) (2001) ("For each matter controverted, the court must make . . . a finding on the allegation . . . ."); United States v. Greenfield, 44 F.3d 1141. 1147 n. 4 (2d Cir. 1995) (noting that "a sentencing court must make specific factual findings in support of any offense-role enhancement"). The findings are sufficient if they adequately "permit appellate review of the sentence imposed." United States v. Kissoon, No. 00-1544, 2001 WL 253070, at *1 (2d Cir. Mar. 13, 2001) (holding factual findings were sufficient to permit appellate review where court made reference to defendant's "directing the conduct of others in the course of the charged criminal activity," even though findings were "oblique").

At the January 24, 2000 re-sentencing hearing, I stated that "this defendant was a reasonably big time narcotics trafficker. And I don't want you to think for a moment that I'm unmindful of what was happening with her movements and direction of people coming to and from New York with controlled substances." (Trans., Jan. 24, 2000, at 18.) This statement clearly refers to codefendants Tunstall and Jimmy Wright. The PSR, which I adopted, stated that Andreu "was described as being the narcotics distributor for the Jacksonville, Florida area. Jimmy Wright and Tunstall were 'mules' and/or runners" for Andreu. PSR ¶ 50. These findings were sufficiently specific to support the sentence.

Although I do not rest my above conclusions on this basis, I would also note that the Second Circuit, while remanding to me for additional factual findings as to the quanitiy of drugs attributable to Andreu, did not require me to make additional factual findings as to Andreu's role.

B. Admissibility of Andreu's Proffer Statement at Sentencing

Evidence of "any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty" is inadmissible in any criminal proceeding. Fed. R Crim. P. 11(e)(6); Fed. R Evid. 410. Andreu claims that statements she made to the government were used to impose a sentence in violation of this rule. However, the Guidelines specifically allows for the use of such information in sentencing that would have been inadmissible at trial. See U.S.S.G. § 6A1.3. The use of Andreu's proffer statements at sentencing did not violate Rule 11(e)(6).

C. Enforceability of the Government's Promise of a Downward Departure

Andreu also contends that the government reneged on a promised two point downward departure for information on the location of co-defendant Jimmy Wright. Specifically, she states that "[a]t the time of the plea negotiation meeting" "AUSA Dutton," presumably Assistant United States Attorney Yvonne Dutton ("Dutton"), offered a two point downward departure for information on the whereabouts of Andrue's nephew and co-defendant, Jimmy Wright. At that time, Andreu did not know where to find Jimmy Wright, but later when she obtained that information she went to the office of her then attorney, Alan Ceballos ("Ceballos"), and asked him to find out from Dutton whether the deal was still available. When Dutton confirmed that it was, Andreu told Ceballos Jimmy Wright's location and Ceballos relayed the information to Dutton (who was holding on the phone). Andreu further claims that the government reneged on its deal. In support of these allegations, Andreu submitted affidavits from herself and from her sister, Joyce Ashton, who allegedly accompanied Andreu to Ceballos' office and overheard the communications between Andreu and Ceballos and between Ceballos and Dutton (who spoke on speakerphone). Andreu pleaded guilty without the benefit of a plea agreement and Andreu has not alleged that she pleaded guilty in reliance upon the alleged agreement.

Andreu provides, as evidence, the affidavit of her sister, Joyce Ashton, as well as her own affidavit.

The Guidelines prescribes a sentencing range based upon several factors, including the nature of the offense and the defendant's criminal history, and the defendants role in the defense. The Guidelines also permit the court in certain circumstances to impose a sentence below the prescribed range. These decreases in sentence a referred to as "downward departures." Contrary to Andreu's apparent understanding, the judge, not the AUSA, decides whether or to downwardly depart.

Apparently, at that time Jimmy Wright had already been arrested and was in state custody.

Andreu's claim fails for several reasons. First, the claim is procedurally barred. Andreu did not raise this issue on direct appeal and is foreclosed from doing so now absent a showing that "there was a cause for failing to raise the issue, and prejudice resulting therefrom." Vasque v. United States, 877 F. Supp. 178, 179 (S.D.N.Y. 1995). Since Andreu offered no explanation for her failure to raise this issue on appeal, she has not satisfied "cause" and the claim is barred.

Second, Andreu's claim as she has framed it is not cognizable on habeas. Although it is well-settled that the government must honor the promises it makes in plea agreements, Santabello v. United States, 404 U.S. 257, 262 (1971), Andreu did not plead pursuant to a plea agreement and has not argued that the alleged agreement for a two point departure induced her to enter a plea of guilty. Instead, without reference to her plea, she alleges that she was induced to inform on her nephew, a situation to which Santabello does not appear to apply.

Third, Andreu has not satisfied her factual burden of proving that an agreement existed between herself and Dutton. Dutton submitted an affidavit in which she denied the existence of any agreement with Andreu. See Affidavit of Yvonne Dutton, dated October 24, 2001, at ¶ 2. At the plea hearing, Andreu made no mention of the alleged agreement with the government and in fact stated that her plea had not been induced by any promise. Ceballos, her attorney, stated on the record that "[t]his lady basically entered a straight-up plea without any promise," (Plea Tr., Dec. 1, 1997, at 24). I am satisfied that there was no agreement and an evidentiary hearing on this issue is unwarranted.

In a letter dated October 29, 2001, AUSA Neil Barofsky stated that he had spoken to Ceballos on the phone and Ceballos confirmed that "at no time did Ms. Dutton tell him or Andreu that Andreu would receive a departure for providing information concerning the location of Jimmy Wright or any other witness, and that he never told Andreu that Ms. Dutton had made such a promise. Id. at 2.

D. Ineffective Assistance of Counsel

Andreu asserts that her attorneys, trial and appellate, provided ineffective assistance of counsel in violation of the Sixth Amendment to the Constitution when they failed to: (1) argue against the two point enhancement for role in the offense before the sentencing court; (2) object to, the use of her proffer statement at sentencing; and (3) address the government's alleged refusal to honor an agreement between it and Andreu for a two point downward departure in return for certain information.

To establish a claim of ineffective assistance of counsel, a petitioner must (i) show that her counsel's representation "fell below an objective standard of reasonableness" under "prevailing professional norms;" Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and (ii) prove that "there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Workman, 110 F.3d 915, 920 (2d Cir. 1997) (quoting Strickland, 466 U.S. at 694). This Court:

"must indulge a strong presumption that counsel's conduct fails within the wide range of reasonable professional assistance," bearing in mind that "[t]here are countless ways to provide effective assistance in any given case" and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way."
United States v. Aguirre, 912 F.2d 555, 560 (1990) (quoting Strick1and, 466 U.S. at 689).

With respect to her first argument, Andreu's attorneys both repeatedly raised the issue of the two point role enhancement with me, both orally and in writing. Their conduct appears to fall well within "prevailing professional norms."

With respect to her remaining ineffective assistance of counsel claims, Andreu's attorneys cannot be faulted with failing to raise futile arguments. As discussed above, the Court's consideration of Andreu's proffer statement at sentencing was not objectionable, and the government did not renege on its alleged deal with Andreu of a downward departure in exchange for information. Andreu suffered no prejudice because these arguments were not made. Finally, Andreu's counsel obtained a sentence reduction from the 262 months recommended by the PSR to the 85 months I ultimately imposed on January 24, 2000. Sounds pretty effective to me.


For the reasons discussed above, the petition is denied and the Clerk of the Court is directed to close the case. As petitioner has not presented a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253 (2); see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997), a certificate of appealability will not issue. Pursuant to 28 U.S.C. § 1915 (a)(13), the Court certifies that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-5 (1962). Andreu also filed a motion for an order pursuant to the Freedom of Information Act. That motion too is denied.