2004 | Cited 0 times | D. Maine | March 11, 2004


Amado Lopez has filed a 28 U.S.C. § 2255 (Docket No. 1), seekingre-sentencing on his guilty plea conviction for conspiracy to possesswith intent to distribute cocaine and cocaine base. Two counts of Lopez'smotion pertain to the imposition of five years of supervised release ontop of Lopez's twenty-year prison term. In Lopez's remaining count heasserts that his sentencing range should have been lower than the240-month cap agreed to by Lopez and the United States if his acceptanceof responsibility adjustment is to be given any effect. Per the reasonsstated below, I recommend the Court DENY Lopez the relief heseeks.



Lopez's Presentence Investigation Report (PSI) explained that a Mainelaw enforcement investigation disclosed the involvement of seventeenco-conspirators and Lopez in a network that, during 1999, regularlysupplied crack cocaine obtained in Connecticut to conspirators in thearea of Bath and Brunswick, Maine. (PSI at 3.) In August 1999, Lopezmoved to Maine. (Id. at 3.) Together with his cousin OrlandoSantana, Lopez traveled to Connecticut several times a week to bring backfour ounces ofPage 2cocaine that was reconstituted into crack cocaine and later sold toothers. (Id. at 4.) The group also obtained cocaine inMassachusetts and New York (Id. at 4.) During one transaction,James Dall gave Lopez a .32 caliber handgun in exchange for crackcocaine. (Id. at 4.) In late 1999, Kirk Owen gave Lopez ashotgun to protect an apartment used as a drug distribution center.(Id.) On December 7, 1999, agents intercepted Santana and twoothers when they arrived at a Brunswick hotel where Lopez had rented aroom. (Id. at 5.) During a struggle with agents, Santana waskilled. (Id.) Agents then arrested Lopez and two others in thehotel room (Id.) Santana's bag contained 450 grams of cocaine.(Id.) Inside the room were 34 grams of marijuana and another .8grams of cocaine. (Id.)

On October 3, 2000, Lopez appeared with his attorney before the Courtto plead guilty to one count of his indictment1 At the outset of thecolloquy, the Court told Lopez that if he did not understand what wasbeing said or wished to consult with counsel, he should say so. (R. 11Tr. at 4-5.) Lopez indicated that he was being treated for depression buthis condition did not interfere with his ability to understand theproceedings. (Id. at 5-7.) Asked whether he was pleading guiltybecause he was guilty and for no other reason, Lopez responded: "I haveanother reason. . . .The Apprendi case." (Id. 8.)See Apprendi v. New Jersey, 530 U.S. 466 (2000). Defensecounsel interjected:

Judge, let me tell you what I have told him about the Apprendi case. What I have told him about the Apprendi case is that it is my belief that the weight in the indictment is presently — the Apprendi can only allow a sentence of up to 20 years, the statutory sentence, and I also told him, as I told you back in chambers over the past few weeks or so, and [thePage 3 prosecutor] has been telling us he is going to cure this indictment by way of another superseding indictment by alleging drug quantity.

(Id. at 8-9). The Court observed that obtaining anothersuperseding indictment would increase Lopez's maximum sentence exposure.(Id. at 9.) Defense counsel added, "My client is coming beforethe Court to plead guilty, to admit he is guilty but also from astrategic standpoint I have advised him that it is in his best interestrather than letting the government go back to Grand Jury and presentingan indictment that could have a higher statutory maximum sentence."(Id. at 9.) Once again the Court asked Lopez directly whetherthe only reasons he was pleading guilty was because he was in fact guiltyand because of the desire to limit his sentencing exposure.(Id. at 9-10.) Lopez indicated that this was the case.(Id.)

The Court ascertained that Lopez had discussed the charges with hisattorney and understood the elements and nature of the offense.(Id. at 10). Lopez further indicated that his attorney had alsoexplained to Lopez the penalties he faced and that he was satisfied withcounsel's advice. (Id. at 11.) The court then described therights Lopez surrendered by pleading guilty and assured that Lopezunderstood these rights and intended to waive them. (Id. at11-14.)

When the court asked if Lopez continued to want to plead guilty, Lopezasked if he could pose a question (Id. at 14-15.) Lopez thensaid: "That document Apprendi, I never got to see, orunderstand that." (Id. at 15.) The court responded, "I suggestyou need not be worried about it, that you are protected from anyescalation of the range of sentencing that I will explain to you underthe arrangement that you and [your attorney] have made, and [theprosecutor]." (Id.)Page 4

Lopez then asked if he would be permitted to withdraw his guilty pleaif he received a sentence greater than twenty years and the prosecutorreplied that, by deciding not to return to the grand jury for asuperseding indictment, the United States had limited Lopez's sentenceexposure to twenty years. (Id. at 15.) The Court also offeredthat, if for any reason it decided that a sentence of more than twentyyears was required, Lopez would be allowed to withdraw his guilty plea.(Id.) "So therefore," Lopez asked, "you can still give me over20 years." (Id.) The court answered: I could theoretically. What [the prosecutor] has just said is that that is not going to happened. The government is agreeing by not going back to the Grand Jury and consenting to your conditional guilty plea, it is limiting itself, the government is, to a sentence of not more than twenty years. And I can tell you that I will not impose a sentence of more than 20 years without affording you an opportunity, in any event, to withdraw your guilty plea and go to trial.(Id. at 16.) Lopez said he understood and his attorneycontinued to recommend that the guilty plea be accepted. (Id.)

Lopez said he had received a copy of the superseding indictment andunderstood the charge and his attorney seconded this representation.(Id. at 16-17.) The Court told Lopez that he was charged with aconspiracy to possess with intent to distribute cocaine and cocaine baseand then explained:

Do you understand that if you are convicted of that offense, subject to the limitations imposed by the agreement that you have made with the government in respect to sentence, you would be exposed under the statute to imprisonment for a term of minimum of 10 years, maximum of life and a fine not to exceed 4 million dollars or any combination of the two, plus a period of supervised release of at least 5 years and an additional period of imprisonment of not more than 5 years if supervised release should be [violated]?Page 5

(Id. at 17.) Lopez said he understood. (Id.)The court then explained that, although the statute provided for amaximum of life, "that is not going to happen here unless you have anopportunity to withdraw your plea." (Id.) Lopez said heunderstood. (Id. at 17-18.) A prosecution version of theoffense was marked as an exhibit (Id. GX 1.) Lopez and hisattorney each affirmed that they had read it and discussed theprosecution version and indicated that Lopez had two objections to it.(Id. at 18-19.) One pertained to the amount of Cocaine involvedin the conspiracy and the other was to the use of the phrase cocainebase. (Id. at 19-20.) Both attorneys agreed that drug quantityrelated to sentencing, not guilt. (Id. at 20.) Otherwise,Lopez's attorney said that, based on his review of the discovery, he wassatisfied that the United States could produce the evidence described.(Id. at 21-22.) The court found that there was a factual basisfor the guilty plea. (Id. at 22.)

The Court explained that sentencing rested in the court's exclusiveauthority although it would be governed by the United States SentencingGuidelines. (Id. at 22-23.) Lopez indicated that he hadconferred with his attorney vis-à-vis the guidelines as they mightapply to Lopez and that his attorney had explained the application andthat Lopez had understood that explanation (Id.) The Courtindicated that no portion of the term of imprisonment imposed could beserved on parole and that if the sentence, to be determined based on thePSI, was more severe that Lopez expected that he would still be bound bythe plea of guilty, save for the right to appeal the motion to suppress.(Id. at 24-25.) The Court made sure that Lopez understood thatit was not bound by either side's sentencing recommendation and thatLopez had not received any promises concerningPage 6what sentence would be imposed. (Id. at 25.) After inthis manner ascertaining that the guilty plea was voluntary, the courtaccepted it. (Id. at 26).

The PSI's estimate of drug quantity was derived by calculating fromcooperator statements the average quantity purchased each week betweenApril and November 1999. (PSI at 5.) Even though Lopez joined theconspiracy in August, the full amount was attributed to him because hefunctioned as a leader of the group. (Id. at 6.) The totalamount of all drugs for which Lopez was held accountable was 24,121kilograms of marijuana equivalent. (Id. at 7.) Afteradjustments for leadership and weapons, Lopez's total offense level of 42and Criminal History Category V produced a Guideline range ofimprisonment for 360 months to life. (Id. at 12).

Defense counsel raised six objections to the PSI. (Id. at15-17.) They included drug quantity, the proposed leadership enhancement,the firearms enhancement, and Lopez's criminal history category.(Id. at 15-16.) Counsel's fifth objection pertained to thestatutory maximum (Id. at 16.) Although both attorneys hadagreed that without a new indictment, the statutory maximum would belimited to twenty years, the probation office concluded thatApprendi was still too new for the office to take an officialposition on its meaning. (Id.) Lopez's sixth objectionconcerned the recommendation against the USSG § 3E1.1 acceptance ofresponsibility departure. (Id.) The PSI indicated that even ifLopez accepted responsibility for his conduct, his Guideline range wouldremain 360 months to life. (Id.) Finally, Lopez argued that adeparture was in order, although he identified no basis for granting it(Id. at 17.) On January 30, 2001, the probation officersubmitted a supplemental addendum to the PSI. (PSI Supp. at 1.) Itexplained that Lopez had dictated a statement to his attorney and signedit (Id.) Lopez admitted coming toPage 7Maine to sell cocaine, but minimized his involvement in theconspiracy during September 1999, by claiming that he worked on his owndelivering cocaine for Jason York, who was not named as a conspirator.(Id.) The presentence investigator explained that if the courtfound that Lopez accepted responsibility for his conduct, his guidelinerange would be imprisonment for 360 months to life, but pursuant toApprendi would be limited to the statutory maximum of 240months. (Id. at 2.)

On February 2, 2001, Lopez and his attorney appeared for sentencing.(Sentencing Tr. at 1.) Again, Lopez told the court he authorized hisattorney to speak in his behalf. (Id. at 2.) Attorney andclient confirmed that they had read the PSI and conferred and that Lopezunderstood its contents. (Id.) With Lopez's consent, counselwithdrew all but one objection to the PSI. (Id. at 3.) Theremaining dispute concerned the sentence to be imposed in light ofApprendi. (Id.) The prosecutor told the court thatLopez's was one of the most serious drug cases to be prosecuted in Maineand that "if this sentence were not capped by the decision in . . .Apprendi, I would be advocating for a sentence in excess of 30years." (Id. at 4.) However, understanding what the change inlaw required, the prosecutor recommended a sentence of 240 months.(Id.) With the consent of the parties, so much of the pleaagreement as called for Lopez to cooperate was withdrawn (Id.at 5.) Defense counsel told the Court he understood from the presentenceconference that the court would accept a stipulation that the sentence be240 months. (Id.) The Court responded, "in light of the impactof the Apprendi decision, consent of the government, the Courtis prepared to accept that." (Id.)

In allocution, Lopez said he had "no problem of taking responsibilityfor this case" and that he believed that he should be incarcerated.(Id.) Still, he was confusedPage 8because if the case had been tried elsewhere, such as in a majorcity, he would get "a slap on the wrist." (Id.) Lopez knew hehad broken the law, but "never thought that [he] would be here facing 20years." (Id. at 6.)

The Court explained that Lopez's Guideline computations produced atotal offense level of 35 and Criminal History Category V. (Id.at 7.) Nevertheless, invoking Apprendi, the Court found thatthe United States failed to charge or prove more than 500 grams and thusthe maximum allowable term was 240 months. (Id.) Accordingly,the Court sentenced Lopez to 240 months in prison to be followed by fiveyears of supervised release "on the usual terms and conditions and on thefive special terms and conditions that will be specified precisely in thememorandum of sentencing judgment, those have all been explained tocounsel at presentence conference. I understand there is no objection."(Id. at 8.) Both sides confirmed and absence of objections.(Id.) "The reason for the sentence here," the Court summarized,is that on the stipulated predicates, the facts and conclusions of theCourt, it is clear the maximum sentence that can be imposed here is thesentence that has been imposed, 240 months, under the law as has beenarticulated by the United States Supreme Court as applies to thecircumstances of this case. (Id. at 9.)

As anticipated, Lopez appealed his conviction. See United Statesv. Lopez, 300 F.3d 46 (1st Cir. 2002). This appeal for the most partfocused on the propriety of the wiretap order and the denial of themotion to suppress. Id. at 51-57. As relevant to this §2255 motion, Lopez also filed a pro se appellate brief arguingthat his 240-month sentence violated Apprendi. Id. at58. The First Circuit concluded that this issue was voluntarily waived.Id. It observed:Page 9

The sentence imposed by the district court insured that, even if López's belated Apprendi arguments could be reviewed for "plain error," see Fed.R.Crim.P. 52(b), there is simply no "error" to correct. The "default" or "catchall" provision of the statute under which López was charged, 21 U.S.C. § 841(b)(1)(C), prescribes that a 240-month maximum sentence may be imposed for trafficking even the smallest quantity of cocaine. United States v. López-López; 282 F.3d 1, 22 (1st Cir. 2002). Thus, Judge Carter's sentence, set at the upper limit of what is permitted by 21 U.S.C. § 841(b)(1)(C), did not violate Apprendi, which "applies only when the disputed `fact' enlarges the applicable statutory maximum and the defendant's sentence exceeds the original maximum." United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001).Id. at 59 n. 6. The Court also reflected: Furthermore, López gained a valuable benefit by acquiescing to the charges in the original indictment. As noted above, the government was prepared to seek a superseding indictment with a specific drug quantity. Had the government done so, López would have doubtlessly faced a harsher sentence. For this reason, López's counsel recognized that, "from a strategic standpoint," López was better off pleading guilty to the original indictment. López also admitted that his plea was based in part on his desire to limit his exposure for purposes of sentencing. López cannot now appeal what he earlier used as a pawn to better his situation. Because López knowingly and voluntarily relinquished any appeal stemming from the Supreme Court's decision in Apprendi (and thereby gained a valuable benefit), we cannot review his claims of error.Id. at 59-60.

Counts Relating to the Five-year Period of Supervised Release

Seeking re-sentencing, and not a vacation of his guilty plea,Lopez contends that he did not plead guilty knowingly and intelligentlybecause he did not understand that, in addition to exposure toimprisonment for twenty years, he could get an additional five years ofsupervised release. He argues that the proper sentence under his pleaagreement would be fifteen years of prison time and the five years ofsupervised release, as the latter, he believes, was mandatory. He faultsthe Court for never informing him that his maximum sentence exposure wastwenty years imprisonment and five years ofPage 10supervised release. Lopez also lodges an ineffective assistance ofcounsel attack on his sentence arguing that counsel failed to advise himthat, by pleading guilty, a period of supervised release could be imposedabove and beyond his period of incarceration. He faults his attorney fornot being apprised of the law that a term of supervised release was aconsequence of his plea and not objecting at the time the sentence wasopposed without ensuring that Lopez understood the consequences ofsupervised release. Furthermore, in Lopez's view, counsel should havesought enforcement of the plea agreement that provided that the totalsentence would not exceed twenty years. In addition, Lopez states thathis attorney was ineffective for not raising this error on appeal.

Perhaps one could review the record of the plea colloquy and concludethat there is some ambiguity as to whether the five years of supervisedrelease was to be imposed only absent the agreement between the partiesto cap Lopez's sentencing exposure at 240 months given the fact that theclearest articulation of the supervised release term was proffered by theCourt in summarizing Lopez's `worst case' scenario. However, as theUnited States points out, every indication by Lopez during the pleacolloquy and sentencing proceedings was that counsel had explained fullyhis hypothetical exposure and the implications of proceeding with theplea based on the indictment. At sentencing the Court stated that theterm of incarceration was limited to 240 months, finding that thegovernment had failed to charge or prove a drug quantity of 500 grams ormore as an element of Lopez's offense. (Sentencing Tr. at 7.) The Courtthen stated that its written memorandum would reflect the Court'sconclusion that "a minimum term of 5 years of supervised release isrequired here." (Id.) Accordingly, the Court "adjudged thatupon release the defendant be placed on supervised release for a term of5 years." (Id. at 8.)Page 11

While it appears from this record that Lopez was apprised of theCourt's intent (and the PSI's recommendation) to impose five years ofsupervised release, it is not at all clear to me from this record thatcounsel did not overlook the fact that under the agreement to cap Lopez'ssentencing exposure to the 240 months set forth in21 U.S.C. § 841(b)(1)(C), the mandatory minimum period of supervisedrelease under that statutory subsection was three and not five years.Taking no position on the operative effect of Apprendi, the PSIdid represent that the five year period was mandatory if Lopez wassentenced under § 841(b)(1)(A), also citing U.S.S.G. §5D1.2(a)(1). In its sentencing memorandum, the Court provided:

The court CONCLUDES that a minimum term of five (5) years ofSupervised Release is required by statute, pursuant to Guideline §5D1.2(a)(1). The Court FINDS that a term of five (5) yearsSupervised Release is required for future protection of the public and tomaximize this Defendant's potential for rehabilitation once released fromincarceration. (Mem. Sentencing J. at 4.)

Because the Court made the actual finding that the five-year term wasrequired for public protection and to further Lopez's rehabilitationprospects, the Court certainly had discretion to impose the five-yearterm. See, e.g., United States v. Cortés-Claudio,312 F.3d 17, 18-20 (1st Cir. 2002) (holding that 18 U.S.C. § 3583(b) doesnot limit the length of supervised release terms in cases under § 841and observing that "§ 841(b) establishes a mandatoryminimum term of supervised release, not a maximum.");accord United States v. Nieves, 322 F.3d 51, 56 (1st Cir.2003). However, counsel did not even test the waters as to whether or notthe Court might be inclined to reduce the five-year term that would havebeen mandatory under § 841(b)(1)(B). And, although thePage 12imposition of the five-year term does not raise a concern underApprendi, see Nieves, 322 F.3d at 56, it may raise aconcern about the performance of counsel during the plea and sentencingphases, as well as on appeal, for not asking the Court to considerimposing a term of supervised release not more than the three-yearstatutory minimum term under § 841(b)(1)(C) or, perhaps, something inbetween that and five years. See Strickland v. Washington,466 U.S. 668 (1984).2 Although this claim is not developed by Lopez (ashe is of the view that the five-year term was mandatory), it is the onlythread identified in my § 2255 review that might induce the Court toconsider, based on its firsthand knowledge of the earlier proceedings,unraveling Lopez's sentence at this late stage of the game.

Counts Pertaining to the Acceptance of ResponsibilityReduction

In his remaining ground Lopez laments that his three-point reductionfor acceptance of responsibility became a "mere paper calculation"because his total offense level was 35 with a 262-327 month range butthat, because the statutory maximum was only 240 months, the UnitedStates Sentencing Guideline § 5G1.1(a) operated to keep his exposureat the statutory maximum. This, Lopez asserts, was contrary to the UnitedStates Sentencing Commission's intent to recognize acceptance ofresponsibility by giving these defendants a lower sentence. He statesthat the commission failed to consider that § 5G1.1(a) would negatethis societal interest. In light of this inadvertent anomaly in his case,Lopez argues that the sentencing Court should have set a guidelinePage 13range with a minimum sentence closest to the § 841(b)(1)(B)statutory maximum, then it should have reduced Lopez's level by three,from 34 with its 235-293 range to 31 with its 168-210 range. Lopezcandidly admits that "authority for this application is almostnonexistent," and he "implicitly relies on" United States v.Rodriguez, 64 F.3d 638 (11th Cir. 1995). (Sec. 2255 Mot. at13.)3 Apropos this ground, Lopez believes that his attorney shouldhave fleshed out the merits of this argument at the time of sentencing,thereby preserving the "unique and meritorious issue that could have beenraised as a matter of first impression in the First Circuit." (Sec. 2255Mem. at 16.)4

I conclude that Rodriguez does not provide Lopez with a basisfor challenging the Court's sentencing determination or counsel'sperformance vis-a-vis the lack of impact of acceptance of responsibilitydeparture on Lopez's ultimate sentence. This is because the 240-monthbaseline for Lopez's sentence was the product of an agreement betweenLopez and the United States and it was an agreement that limited hisoverall exposure to a term of imprisonment that was less than thatgenerated by sifting Lopez's case through the sentencing guidelines andconferring the acceptance of responsibility departure. InRodriguez, on the other hand, it was not a lower sentencingagreement verses a guideline range that was juxtaposed;Rodriguez involved a base offense level that was higher thanthe statutory maximum determined as a matter of law (and notagreement), and when thePage 14acceptance of responsibility departure was applied to the former,rather than the latter, the departure reaped no benefit to the defendant.The Eleventh Circuit concluded that the sentencing court had discretion(but was not required) to apply the three-level acceptance ofresponsibility adjustment to the lower statutory maximum sentence giventhat one provision of the Sentencing Guideline, U.S.S.G. 5G1(a), renderedanother provision, U.S.S.G. § 3E1.1, ineffectual in that scenario.Id. at 643. In Lopez's case it is not simply a matter of aguideline negating the societal interest served by the adjustment.See id. Rather, it is the benefit of Lopez's bargain with theUnited States that makes the adjustment inoperative.


For these reasons, I recommend that the Court DENY Lopezrelief from his sentence.


1. There was an agreement that the plea was conditional as Lopezreserved the right to appeal the denial of a motion to suppress.

2. I am highly skeptical of the notion that if Lopez was adequatelyapprised by counsel of his exposure to a five-year term of supervisedrelease he would not have plead guilty but would have proceeded to trialvia a re-indictment that promised exposure to significantly higher termsof imprisonment and a minimum mandatory five-year term ofsupervised release. See Hill v. Lockhart, 474 U.S. 53, 59(1985). The stakes were high. The prosecutor indicated that, save forApprendi. he would seek a sentence in excess of thirty yearsand the PSI indicated that Lopez's exposure on a conviction obtained inconformity with Apprendi was thirty years to life.

3. Lopez is correct for taking the United States to task for itsassertion that Lopez offered no support for his argument. Whether or notRodriguez would be followed in this District or Circuit if pushcame to shove, it is authority that comes sufficiently close tosupporting Lopez's claim to at least warrant acknowledgment by the UnitedStates.

4. The United States contends that Lopez, having filed a prose brief on direct appeal in addition to counsel's brief, cannotfault his attorney's performance for not raising the issue in his brief.This is a novel theory of waiver that makes little sense to me as theattorney has an obligation to raise challenges on direct appeal if theyhave merit. Lopez does assert that he did include a phrasing of thischallenge in his brief in front of the First Circuit but that the Paneldid not address it. Because I conclude that the claim has no legal meriteven if it was not subject to proof of cause and prejudice, I need notconcern myself with this facet of the dispute.

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