Carrasquillo v. United States

818 F.Supp.2d 385

Nelson CARRASQUILLO, Petitioner,

v.UNITED STATES, Respondent.

Criminal Action No. 06–10284–WGY.

United States District Court, D. Massachusetts.

Oct. 13, 2011.

Jonathan M. Albano, Bingham McCutchen LLP, Boston, MA, for Globe Newspaper Company, Inc.

Matthew J. Machera, Law Offices of Matthew J. Machera, Revere, MA, Stephen Neyman, Attorney at Law, Boston, MA, for Nelson Carrasquillo.

John T. McNeil, United States Attorney's Office, George W. Vien, Donnelly, Conroy & Gelhaar, LLP, Boston, MA, for USA.

REPORT

YOUNG, District Judge.

By order of September 26, 2011, the United States Court of Appeals for the First Circuit ordered a limited remand of the appeal of Nelson Carrasquillo (“Carrasquillo”)

to allow the district court to clarify the reasoning behind its sua sponte dismissal, as we are not able to discern the reasons for the dismissal. In particular, we are unable to determine what the court meant when it concluded that Carrasquillo had failed to show prejudice.

Order of Court, Carrasquillo v. United States, No. 10–1489 (1st Cir. Sept. 26, 2011).

In his memorandum in support of his habeas petition, Carrasquillo complains that his counsel was constitutionally ineffective when, during an unprotected proffer after his plea, his counsel failed to protect him from egregious and improper browbeating by the government which badgered him into an untrue admission of gun possession in the course of committing the crimes to which he had just pleaded guilty. Pet'r's Mem. Supp. Mot. Pursuant 28 U.S.C. § 2255 (“Pet'r's Mem.”) 10–11, ECF No. 235. Carrasquillo also complains that the pre-sentence report misrepresents the extent of his drinking during the relevant time period. Id. at 12. This Court summarily dismissed his petition with the margin notation: “Even accepting as true the facts alleged, petitioner has not demonstrated any prejudice....” Order, Mar. 31, 2010.

The direct answer to the query from the Court of Appeals is that Carrasquillo suffered no constitutional prejudice from the conduct of defense counsel because neither his gun possession vel non nor his drinking (there is no suggestion here of diminished responsibility) played any role whatsoever in the sentence this Court imposed.¹ While this Court gave due regard to each of the 18 U.S.C. § 3553(a) factors and fashioned just and individualized sentences for Carrasquillo and each of his co-defendants, the main driver of Carrasquillo's sentence was the need for due proportionality among Carlos A. Pizarro (least culpable—already sentenced to thirteen years), see Judgment in a Criminal Case at 2, United States v. Pizarro, No. 06–10284–2 (D.Mass. Dec. 13, 2007), ECF No. 156; Carrasquillo (more culpable-sentenced to eighteen years), see J. Criminal Case 2, ECF No. 166; and Roberto E. Pulido (most culpable—later sentenced to twenty-six years), see Amended Judgment in a Criminal Case at 2, United States v. Pulido, No. 06–10284–1 (D.Mass. July 24, 2008), ECF No. 197. The need for proportionality among co-defendants has been expressly recognized as an appropriate consideration by the First Circuit, see United States v. Martin, 520 F.3d 87, 94 (1st Cir.2008), and that was what was going on here. Indeed, this was the focus of the argument of both counsel during the sentencing hearing, see Sentencing Tr. 32–37, 41–43, Mar. 17, 2008, ECF No. 171, and this Court expressly concluded that “[Carrasquillo's] involvement is much greater than that of Mr. Pizarro.” Id. at 44. There simply was no prejudice. That's it.

Even so, as the Court of Appeals has here thought it necessary to inquire as to this Court's approach, an appropriate respect for the question posed requires a more nuanced response.

I. Possible Sentence Enhancement

In United States v. Kandirakis, 441 F.Supp.2d 282, 318–20 (D.Mass.2006), this Court sought to reconcile the conflicting opinions in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by adopting a protocol whereby all factual sentencing enhancements (other than criminal history matters wherein a defendant has already had his opportunity for jury fact finding) must be tried to a jury on actual evidence requiring proof beyond a reasonable doubt. This procedure has garnered the express approval of Justices Scalia and Thomas, Rita v. United States, 551 U.S. 338, 378 n. 5, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (Scalia and Thomas, JJ., concurring in part and concurring in the judgment), and, while not required in the First Circuit, United States v. Zapata, 589 F.3d 475, 482–84 (1st Cir.2009), my use of it to sentence on a firmly-established factual footing has thus far never been questioned at the appellate level. This Court applies the protocol to a plea by requiring that, during the plea colloquy, the defendant knowingly, intelligently, and voluntarily admit to the facts that undergird the enhancement.²

Here, no mention was made of gun possession during Carrasquillo's plea colloquy, see Plea Colloquy, Nov. 05, 2007, ECF No. 170, and he made no admission as to any such possession. The pre-sentence report, however, recommended a two-level increase based on such an admission during the post-plea unprotected proffer. Pre–Sentence Report 12, Feb. 28, 2008. Government counsel argued that such a recent admission ought be considered in determining Carrasquillo's sentence. Sentencing Tr. 12.

This Court sorted these matters out during the sentencing hearing. Id. at 14–16, 21–24. As a starting point, one can do no better than refer to Judge Hornby's succinct and sensible explanation of the workings of a federal sentencing hearing today. D. Brock Hornby, Speaking in Sentences, 14 Green Bag 2d 147 (2011). I seek to emulate Judge Hornby's wise advice with but few changes, primarily in the order of analysis.

As I explained at the outset of Carrasquillo's sentencing hearing:

THE COURT: Now, this [ ] sentencing proceeds under 18 United States Code, Section 3553(a). The first thing—the first thing in this Court, I consider, I proceed in the following fashion. I determine the highest constitutionally reasonable sentence. I determine the highest constitutionally reasonable sentence by taking all the factors in the sentencing guidelines which have been admitted to, or in terms of the criminal history which I can take judicial notice of, without any downward adjustment of any sort, and then I go to the highest of the resultant range. In this Court's view that is the highest constitutionally reasonable sentence because I would be attributing to Mr. Carrasquillo things that I would not, that I don't think can be quantified.

Now, once I've done that then I will turn to the, from the available sentencing databases the average sentences imposed for crimes of this type on other offenders nationwide, First Circuit, and in this district. When that's done, I'll go back and calculate, as I am required to, the advisory sentencing guidelines, and there I will take into account some, and I understand it's disputed, downward adjustments. And again, if you dispute the ones that I make or think I should make others, I will hear you.

When that's all decided, then I'll hear the government with respect to its sentencing recommendation, the defense, I'll hear from Mr. Carrasquillo, and impose sentence.

Sentencing Tr. at 8–9. This is the Court's usual procedure. See United States v. Jones, 762 F.Supp.2d 270, 279–81 (D.Mass.2010).

The dispute over the gun possession enhancement arose at once and the Court inquired:

THE COURT: But as a factual matter there's no dispute, is it, he admitted to the gun, in an unprotected safety valve proffer. Is that fact disputed?

[DEFENSE COUNSEL]: Not for the purpose of this hearing, no.

Sentencing Tr. at 15.

The Court also reflected:

[THE COURT]: Courts have never yet taken the position, once Booker came down, with remedial Booker, that enhancements had to be charged. I think it's a good policy. I think that would be a good direction for the law to take. But I operate within a legal system to which I am sworn to adhere. And I take it very seriously. There is no requirement that it be charged and go through the indictment process. At least there's no requirement yet. So, I'm choosing my words with care. I'm trying to find the highest constitutionally reasonable sentence that a judge could impose.

Now, I have little trouble with his admission because the admission was made during an unprotected proffer. Since the admission's there, I do count it now. Whether I count it for the advisory sentencing calculation is another thing altogether.

Id. at 14.

Having established the highest constitutionally reasonable sentence that might be imposed on Carrasquillo (293 months), id. at 10, the Court revisited the gun possession issue during the course of calculating the advisory sentencing guidelines and entertained further argument. Defense counsel was hardly supine at this (or any) stage. The relevant interchange was:

THE COURT: For purposes of the guideline calculation, I think I will not add in the two levels for the gun. At the same time, I see no basis for applying the safety valve in circumstances where by its own terms it does not apply. So it's a wash. If someone wants to argue about that I will hear you.

Id. at 21.

THE COURT: If I counted the gun and went up two levels and then gave him the safety valve and went down two levels, the result is the same.

Id. at 22.

THE COURT: Why should there be a gun-why should I not count the gun as an enhancement if it was made during an unprotected proffer, but count the gun-strike that. It seems to me either I count it both ways or I don't count it both ways.

What's wrong with that?

[DEFENSE COUNSEL]: Well, under the circumstances of this proffer—first of all, it took a little time to extract that information from Mr. Carrasquillo. I'm not saying that there was anything that was improper or illicit done during the course of the proffer, but initially I think Mr....