MEMORANDUM AND ORDER
Alberto Soto-Lara ("Soto-Lara"), acting pro se, brings thispetition for a writ of habeas corpus pursuant to28 U.S.C. § 2255. Soto-Lara's petition is based on a claim of ineffectiveassistance of counsel. In support of this claim, Soto-Laraasserts that his counsel improperly failed to raise and argue twoissues: (1) that the government breached its plea agreement, and(2) that his conviction violated the double jeopardy clause.
On October 25, 2000, while serving a sentence for a convictionin Rhode Island, Soto-Lara was indicted by a federal grand jurysitting in the District of Massachusetts for conspiracy todistribute cocaine in violation of 21 U.S.C. § 846 ("Count One")and possession of cocaine with intent to distribute in violationof 21 U.S.C. § 841(a)(1) ("Count Two"). District of Massachusetts Presentence Report of Jan. 3, 2002 ("MassachusettsPresentence Report") at 1.
On August 17, 2001, Soto-Lara appeared before this Court and,pursuant to a plea agreement with the government, pled guilty toCount One of the indictment. Id. at 2. On January 10, 2002,based upon the Court's conclusions as to the drug quantityattributable to him, his role in the offense, and his criminalhistory, Soto-Lara was sentenced to a 168-month term ofincarceration followed by a 36-month term of supervised release.Tr. of Disposition of Feb. 27, 2002 ("Tr.") at 27.
Soto-Lara appealed this sentence, claiming that the Court erredby increasing his offense level pursuant to section 3B1.1(a) ofthe United States Sentencing Guidelines on the grounds that hewas a leader or organizer of criminal activity involving five ormore participants. United States v. Soto-Lara,60 Fed. Appx. 834, 834 (1st Cir. 2003). The Court of Appeals affirmedSoto-Lara's sentence, ruling that there was in the record datasufficient to support his enhanced role in the offense and noclear error. Id. at 834-35.
Soto-Lara brings this petition pursuant to 28 U.S.C. § 2255 andasserts that he was deprived of his Sixth Amendment right tocounsel.1 Soto-Lara claims that his counsel wasineffective for failing to argue (1) that the government breached its pleaagreement at his sentencing hearing, and (2) that this indictmentsubjected him to double jeopardy because it alleged criminalconduct that was part of a cocaine conspiracy for which he hadbeen previously convicted.
The burden of demonstrating ineffective assistance of counselrests on the petitioner. Strickland v. Washington,466 U.S. 668, 687 (1984) (noting the defendant must demonstrate that theperformance of counsel was "deficient," "that counsel made errorsso serious that counsel was not functioning as the `counsel'guaranteed the defendant by the Sixth Amendment," and that such"deficient performance prejudiced the defense"). Under thestandard outlined in Strickland, the petitioner must show that(1) counsel's representation "fell below an objective standard ofreasonableness," Id. at 688, and (2) "but for counsel's . . .errors, the result of the proceeding would have been different,"Id. at 694. See also United States v. Wilkerson,251 F.3d 273, 279 (1st Cir. 2001) (articulating the Supreme Court'stwo-prong analysis in Strickland). The Strickland standard is a difficult hurdle to overcome, ascourts "indulge a strong presumption that counsel's conduct fallswithin [a] wide range of reasonable professional assistance."466 U.S. at 689. Failure to raise a meritless legal argument fallswell within this wide range of reasonable assistance and thusdoes not constitute ineffective assistance of counsel. Acha v.United States, 910 F.2d 28, 32 (1st Cir. 1990) (noting thatcounsel was under "no obligation" to raise meritless claims);United States v. Victoria, 876 F.2d 1009, 1012-13 (1st Cir.1989) (explaining that failure to raise meritless claims does notindicate ineffective assistance of counsel as such claims have noeffect on the result of a trial). The preliminary determinationmust therefore address whether the alleged breach of the pleaagreement and double jeopardy arguments have merit.
A. Alleged Breach of Plea Agreement
Soto-Lara entered into a plea agreement with the government inwhich the government, in exchange for his guilty plea, agreed tothe following: The U.S. Attorney agrees to dismiss Count Two of the Indictment following imposition of sentence. . . . Based on Defendant's prompt acceptance of personal responsibility for the offense of conviction in this case, and information known to the U.S. Attorney at this time, the U.S. Attorney agrees to recommend that the Court reduce by three levels Defendant's Adjusted Offense Level under U.S.S.G. § 3E1.1.Plea Agreement of July 26, 2001 ("Plea Agreement") at 1-2. The government fulfilled these obligations and Soto-Lara does nottake issue with them.
The government also stated in the plea agreement the positionit would take during sentencing with regard to the calculation ofthe sentencing guidelines as applied to Soto-Lara: Base Offense Level: The U.S. Attorney takes the position that at least 5 and not more than 15 kilograms of cocaine are attributable to Defendant pursuant to U.S.S.G. § 2D1.1. Role in the Offense: The U.S. Attorney takes the position that Defendant is an organizer and leader, and consequently a two level upward adjustment is appropriate pursuant to U.S.S.G. § 3B1.1(c).Id. at 2. It is the government's position with regard to hisrole in the offense with which Soto-Lara takes issue. Mem. ofLaw in Supp. of Pet'r Mot. Under § 2255 ("Pet'r Mem.") [Doc. No.3] at 4.
A plea agreement is a binding agreement in which the governmentmakes promises in exchange for a defendant's guilty plea. UnitedStates v. Gonczy, 357 F.3d 50, 53 (1st Cir. 2004) Failure ofthe government to perform on its promises is a breach of the pleaagreement. Id. (noting the importance of performance of a pleaagreement given that defendant has waived basic constitutionalrights in reliance thereon); Correale v. United States,479 F.2d 944, 947 (1st Cir. 1973) ("We are mindful . . . that adefendant entering into a plea agreement with the government undertakes to waive certain fundamental constitutionalrights; because of that waiver, the government is required tomeet the most meticulous standards of both promise andperformance."). Here, the government, by taking these positionsin the plea agreement, made no promise affirmatively to recommendthese positions to the Court at sentencing. Therefore, thegovernment's failure to recommend at sentencing that Soto-Lara'srole in the offense warrants a two-level upward adjustment doesnot constitute failure to perform on any promise and is not abreach.
Soto-Lara contends, however, that the government breached theplea agreement by taking a position during sentencing that wasinconsistent with the position it agreed to in the pleaagreement. Pet'r Mem. at 12 (arguing that the government took an"adversary position"). The relevant portion of the sentencinghearing is as follows: COURT: I do find by a fair preponderance of the evidence that Mr. Soto-Lara is a leader or organizer of a cocaine distribution organization that involved five or more participants. And they include himself, Lopez-Fernandez, Garcia-Castro, and Ramone. So I add four levels. [COUNSEL FOR DEFENDANT]: [Y]ou find that the role enhancement is proper because you say that Mr. Soto-Lara was the leader or organizer of five or more participants. . . . But you only identified four, including the defendant himself. [PROSECUTOR]: If I may help out on that . . . I think there are indisputably actually six participants in the organization. One being Soto-Lara, one being Junior Carmona, one being Garcia-Castro, one being Apolinar Lopez, one being Ramone, and one being Ganaliel Pena.Tr. at 22.
At the sentencing hearing, the government brought to theCourt's attention the individuals it believed were involved inthe conspiracy. The government at no time advocated that afourlevel increase be imposed rather than a two-level increase,nor did it advocate any position that was inconsistent with theplea agreement. The government simply provided information to theCourt that was relevant to the Court's sentencing decision. "Itwas not only appropriate, but also in conformity with thegovernment's obligations for it to provide the sentencing courtwith information as to the material facts surrounding theoffense." United States v. Riggs, 347 F.3d 17, 19 (1st Cir.2003). Thus, the government complied with both its duty to bringall relevant information to the Court's attention as well as itsduty to perform on all promises contained within the pleaagreement. Accordingly, the breach of plea agreement argument iswithout merit and counsel would not reasonably be expected toraise it.
Even assuming arguendo that there was a breach and that counseldid err by failing to raise such an argument, counsel was notineffective because this error did not affect the outcome of theproceedings. See Strickland, 466 U.S. at 688. In response to the government's suggestion that there were six participantsin the conspiracy, the statement with which Soto-Lara takesissue, the Court stated, "I stand on my findings as already made.There [are] five [participants]. . . ." Tr. at 24. Thegovernment's alleged breach did not affect the Court's findings.As such, the Court would have been unlikely to change itsfindings had counsel objected to this alleged breach.
While the outcome at the sentencing hearing was not affected bythe government's actions, the Court's refusal to adopt thegovernment's position does not render the alleged breach harmlessif the portion of the plea agreement which Soto-Lara claims wasbreached induced his guilty plea. Panzari-Alvarez v. UnitedStates, 879 F.2d 975, 986 (1st Cir. 1989) (stating that "[t]hegovernment may not breach any term of a plea agreement whichinduced the defendant to plead guilty"); Correale,479 F.2d at 949 (noting that when a plea agreement is "broken or meaningless"the rights of the defendant are violated). Nothing in the recordindicates that the government's position with regard toSoto-Lara's role in the offense induced Soto-Lara to pleadguilty. That Soto-Lara entered into the plea agreement despitedisagreeing with the government's position with regard to drugquantity2 suggests that the government's stated position regarding the role in the offense enhancement did not affectSoto-Lara's decision to plead guilty. The more probableinducement for Soto-Lara's guilty plea was the government'sagreement to dismiss Count Two of the indictment and to recommenda three-level reduction in his offense level.
As the outcome of the proceedings remained the same despite thealleged errors committed by counsel, counsel was not ineffectiveunder the Strickland standard. Moreover, the record suggeststhat the assistance rendered by counsel was quite effective inthat counsel properly pressed the Court for clarification as toits findings with regard to Soto-Lara's role in the offense.Counsel would not have reasonably been expected to press further.Accordingly, counsel did not render ineffective assistance byfailing to raise the breach of plea agreement argument.
B. Double Jeopardy
Soto-Lara also claims that his conviction in Massachusettsviolates the double jeopardy clause because he had previouslybeen charged in Rhode Island with an offense that was part of thesame general course of criminal conduct. Pet'r Mem. at 5.
On January 12, 2000, Soto-Lara and Roberto Cruz ("Cruz") wereindicted in the District of Rhode Island for conspiring topossess cocaine with intent to distribute and attempting to possess cocaine with intent to distribute in violation of21 U.S.C. §§ 841(a)(1) and 846. District of Rhode Island PresentenceInvestigation Report of Aug. 9, 2000 at 1. Their indictmentstemmed from events that took place in Warwick, Rhode Island inDecember 1999 and January 2000. Massachusetts Presentence Reportat 6-7. Specifically, Soto-Lara and Cruz were arrested as aresult of a reverse sting, in which an undercover agent from theDrug Enforcement Administration agreed to sell to Soto-Lara andCruz five kilograms of cocaine. Id.
On October 25, 2000, Soto-Lara and three others were indictedin the District of Massachusetts for, among other things,conspiring to distribute cocaine in violation of21 U.S.C. §§ 841(a)(1) and 846. Id. at 1-2. In this instance, the indictmentstemmed from a series of events that took place in Franklin,Framingham, Rehobeth, Bellingham, Woonsocket, and elsewhere inMassachusetts and Rhode Island from January 1997 until October2000. Id. at 2.
To decide whether two offenses are the same offense for doublejeopardy purposes, courts generally use the "same evidence" test.United States v. Laguna-Estela, 394 F.3d 54, 56 (1st Cir.2005) (indicating that the "same evidence" test devised by theSupreme Court in Blockburger v. United States, 284 U.S. 299,304 (1932), is used in the majority of double jeopardy cases)."This test ordinarily requires a determination whether each offense requires an element of proof that the other doesnot." Laguna-Estela, 394 F.3d at 57. The First Circuit hasfine-tuned the Blockburger test specifically to address whethertwo charged conspiracies are the same for double jeopardypurposes. Laguna-Estela, 394 F.3d at 57 (citing United Statesv. Gomez-Pabon, 911 F.2d 847, 860 (1st Cir. 1990)). Whenapplying this modified test, courts must consider the followingfive factors: "(a) the time during which the activities occurred,(b) the persons involved, (c) the places involved, (d) whetherthe same evidence was used to prove the two conspiracies, and (e)whether the same statutory provision was involved in bothconspiracies." Laguna-Estela, 394 F.3d at 57.
While both conspiracy charges were brought under the samestatutory provisions, and while it is possible, althoughuncertain, that both conspiracies occurred over the same generaltime period and in the same general vicinity, Soto-Lara has notshown that the charges brought against him in Massachusetts arethe same as those to which he already pled guilty in RhodeIsland. The overlapping here "does not belie the separateness ofthe conspiracies" as established by the other factors. UnitedStates v. Hart, 933 F.2d 80, 86 (1st Cir. 1991).
First, the individuals involved in the two conspiracies aredifferent. Of the four defendants indicted in the Massachusettscase and the two defendants indicted in the Rhode Island case, Soto-Lara was the only party common to both indictments.Moreover, the record does not indicate that the otherparticipants in each conspiracy had any knowledge of, or interestin, the activities of the other. Second, and perhaps moreimportantly, the evidence used to support each of the twoconspiracies is distinct. The data supporting the Rhode Islandconspiracy consisted exclusively of the reverse sting in Warwick,Rhode Island. Massachusetts Presentence Report at 6-7. The datasupporting the Massachusetts conspiracy, however, consisted of anextensive investigation conducted by the Drug EnforcementAdministration which included incriminating testimony frommultiple individuals, none of whom were implicated in the RhodeIsland conspiracy. Id. at 4-5, 7-13.
Upon weighing these five factors outlined above, and uponconsidering the totality of the circumstances presented by thiscase, this Court concludes that Soto-Lara's double jeopardy claimis without merit. As counsel is not required to raise meritlessarguments, counsel neither erred nor rendered ineffectiveassistance by failing to object to Soto-Lara's Massachusettsconviction on double jeopardy grounds.
Both the breach of plea agreement claim and the double jeopardyclaim lack merit. Failing to raise such meritless claims is notobjectively unreasonable and therefore does not constitute ineffective assistance of counsel. Accordingly,Soto-Lara's motion to vacate, set aside, or correct his sentencepursuant to 28 U.S.C. § 2255 [Docket No. 1] is DENIED.
1. Failure to raise a claim of ineffective assistance ofcounsel on direct appeal does not bar the claim from beingbrought in a later, appropriate collateral proceeding. Massarov. United States, 538 U.S. 500, 504 (2003) (explaining thatrequiring a defendant in a criminal matter to bring anineffective assistance of counsel claim on direct appeal does notpromote the conservation of judicial resources nor the importanceof the finality of judgments). Soto-Lara's claim is now properlybefore this Court.
2. Soto-Lara pled guilty to Count One of the indictment whiledisputing the government's position with regard to the drugquantity attributable to him as set forth in the plea agreement.Tr. of Change of Plea of Aug. 17, 2001 at 36.