Fernandes v. United States

MIGUEL FERNANDES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Crim. Action No. 14-10019-FDS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

November 29, 2017

MEMORANDUM AND ORDER ON PETITION FOR A WRIT OF HABEAS CORPUS

SAYLOR, J.

This is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Petitioner Miguel Fernandes pleaded guilty on January 7, 2016, to conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), and 846; possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii); and conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h). He was sentenced to a 144-month term of incarceration followed by a four-year term of supervised release.

Petitioner has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that the government breached a contractual obligation pursuant to the plea agreement when it objected to an additional one-point downward departure under the sentencing guidelines for acceptance of responsibility. Petitioner also alleges ineffective assistance of counsel in violation of the Sixth Amendment due to trial counsel's alleged (1) failure to advise him correctly as to the sentencing guideline for acceptance of responsibility, U.S.S.G. § 3E1.1(b); (2) failure to object to the Court's guideline calculation under § 3E1.1(b); and (3) failure to challenge the government's improper withholding of a § 3E1.1(b) motion. For the reasons set forth below, the motion will be denied.

I. Background

A. Factual Background

Because the conviction resulted from a guilty plea, the following facts are taken from the April 8, 2016 sentencing hearing and the Presentence Investigation Report ("PSR"), unless otherwise noted. See United States v. Connell, 960 F.2d 191, 192-93 (1st Cir. 1992); United States v. Garcia, 954 F.2d 12, 14 (1st Cir. 1992).

Under the guise of several aliases, for several years Fernandes sent drugs, including marijuana and cocaine, from California into Massachusetts via Miracle Mail, a commercial mail receiving agency. (PSR at ¶¶ 8, 43). He mailed numerous packages to uninhabited addresses, using foam insulation to conceal the drugs inside. (Id. at ¶ 43).

In December 2012, the United States Postal Service (USPS) intercepted two Priority Mail packages addressed to fictitious individuals in Middleboro, Massachusetts. (Id. at ¶¶ 21-22). Co-conspirator Alex Junior Gomes attempted to retrieve the packages at the USPS Lakeville Annex. (Id. at ¶¶ 8, 23-25). After a postal inspector obtained a search warrant, one of the packages was opened and tests confirmed that the package contained two kilograms of cocaine. (Id. at ¶ 26). The second package was returned to the location from which it was mailed, a Miracle Mail office in Los Angeles. (Id. at ¶ 27).

The following month, in early January 2013, a postal inspector spoke on the telephone with a man identifying himself as "Steven Sanchez" who claimed that the package returned toMiracle Mail was addressed to his aunt. (Id. at ¶ 30). "Steven Sanchez" also claimed that the package containing cocaine, which postal inspectors had already opened, contained a humidifier for his aunt. (Id.). DEA Special Agent Carl Rideout listened to a recording of the conversation and identified "Steven Sanchez" as Fernandes, whose voice Agent Rideout had come to recognize during the course of the investigation. (Id. at ¶ 31). Fernandes's then-girlfriend, Latresea Chennette, also identified the voice of "Steven Sanchez" as that of Fernandes. (Id. at ¶ 32).¹

In addition, packages were mailed from Los Angeles to fictitious individuals in New Bedford, West Bridgewater, and other towns in the greater Boston area. (Id. at ¶¶ 34, 38). Gomes was observed on several occasions at these addresses retrieving the packages. (Id. at ¶ 34). Frequently, Gomes would retrieve packages left at the front of the addresses, place them in his vehicle, and drive away. (Id. at ¶ 35).

On January 27, 2014, search warrants were executed at several locations in Los Angeles. (Id. at ¶ 40). Police discovered that Fernandes's storage locker in Los Angeles contained marijuana with a net weight of 520 kilograms. (Id. at ¶¶ 8, 40-41). Although pursuing agents initially lost sight of Fernandes, he was arrested the following day. (Id. at ¶¶ 1, 40).

Fernandes, along with at least five other co-conspirators, also conspired to launder drug proceeds. (Id. at ¶ 9). Fernandes used several "funnel accounts," in which the account holders allowed Fernandes and his co-conspirators to make cash deposits and withdrawals. (Id. at ¶¶ 9-10). The funnel account holders were paid a small fee for each transaction. (Id. at ¶ 9).² The transactions themselves were cash deposits in structured amounts under $10,000, allowing theconspirators to avoid the CTR reporting requirement. (Id.). Deposits were often made at Bank of America branches in Massachusetts and nearby states, and withdrawals occurred at Bank of America branches in Los Angeles. (Id. at ¶ 12). In total, there were approximately 40 Bank of America accounts used in the money laundering scheme, and several million dollars were laundered. (Id. at ¶ 10).

For example, surveillance video depicted Fernandes and other co-conspirators making large cash deposits into the accounts of co-conspirator Kelly McClinton at a Bank of America in Massachusetts, followed shortly thereafter by large cash withdrawals from the same accounts at a Bank of America in Los Angeles. (Id. at ¶ 12-13). Fernandes himself, under the alias "Sanchez," controlled two bank accounts with balances of over $200,000 in 2012 and 2013. (Id. at ¶ 45).

B. The Plea of Guilty

Fernandes was indicted on January 23, 2014, for conspiracy with intent to distribute cocaine. (Docket No. 3). A superseding indictment, adding charges of possession with intent to distribute marijuana and conspiracy to launder monetary instruments, was returned on June 26, 2014. (Docket No. 42).

Trial was scheduled to begin on Monday, January 11, 2016. In accordance with the Court's pretrial order, the government filed its witness list, exhibit list, proposed voir dire questions, and motions in limine on December 29, 2015. The government attorneys presumably prepared for trial over the holiday period and into the new year. On January 5, 2016, six days before the start of the trial, Fernandes requested a plea hearing. (Docket No. 256). The plea agreement was executed on Thursday, January 7, 2016, and Fernandes pleaded guilty that day. (Docket Nos. 275 and 276).

Under the plea agreement, the government agreed to recommend a two-level downward adjustment to the base offense level under the sentencing guidelines for acceptance of responsibility. See U.S.S.G. § 3E1.1(b). The plea agreement did not indicate that the government agreed to move for a three-level reduction under § 3E1.1(b).

On January 7, 2016, Fernandes pleaded guilty to three counts of the superseding indictment. (PSR at ¶ 2). Count One charged conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), and 846; Count Two charged possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii); and Count Three charged conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h). (Id.).

C. Sentencing Hearing

The sentencing hearing was held on April 8, 2016. Fernandes received a two-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). (Id. at ¶ 77). His final total offense level was 34, yielding a guideline range of 168 to 210 months. (Id. at ¶¶ 89, 91, 146).

The government requested a 168-month sentence, which was at the low end of the guideline range. (Sen. Tr. at 6). Fernandes's attorney requested a sentence of incarceration of less than ten years. (Id. at 22).

Fernandes was sentenced to a 144-month term of incarceration on each count to be served concurrently, followed by a four-year term of supervised release. (Id. at 34).³ The guideline range was 168 to 210 months, and therefore the sentence constituted a downward departure.(PSR at ¶ 146). The Court justified the departure, in part, due to the effect of the money laundering charge on the guideline range. (Sen. Tr. at 31). Moreover, the Court concluded:

Defendant was a serious offender who ran a significant drug trafficking enterprise. However, the Court imposed a sentence somewhat under the low end of the guideline range because a larger sentence was not necessary to achieve the goals of sentencing[,] [p]articularly in light of the lack of evidence of violence and the fact that much of the drug quantity involved marijuana.

(Statement of Reasons at 3).

D. Procedural Background

On January 10, 2017, Fernandes filed the present motion to vacate under 28 U.S.C. § 2255, contending that the government breached its contractual duty under the plea agreement and that his counsel provided ineffective assistance as to the application of U.S.S.G. § 3E1.1(b).

II. Analysis

Because petitioner appears pro se, his pleadings must be construed more leniently than those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a petitioner's pro se status does not excuse him from complying with procedural and substantive requirements of the law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

A. 28 U.S.C. § 2255

Under 28 U.S.C. § 2255, a petitioner may file a motion to vacate, set aside, or correct a sentence. The relief requested may be granted on the grounds that the "petitioner's sentence (1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." David v. United States, 134 F.3d 470, 474 (1st Cir. 1998)...