DANIEL MONSANTO LOPEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
Nos. 16 Cr. 643 (NRB), 20 Civ. 2410 (NRB)
United States District Court, S.D. New York
November 23, 2021
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE
Petitioner Daniel Monsanto Lopez, proceeding pro se, has filed a petition under 28 U.S.C. § 2255 to vacate his sentence of 135 months' imprisonment and his conviction, pursuant to an open plea, for conspiring to distribute and possess with the intent to distribute cocaine.[1] (ECF No. 212).[2] In his petition, Monsanto Lopez argues that he received ineffective assistance of counsel in violation of his Sixth Amendment rights. Monsanto Lopez claims that his initial retained counsel advised him not to accept a proposed pre-indictment plea agreement with a lower Guidelines Range than the one used by the Court at sentencing, based on a
mistaken belief that the Government could not sustain its burden of proof that he was a leader, supervisor, or manager in the criminal conspiracy. For the following reasons, we deny the motion in its entirety.
BACKGROUND
In May 2016, Monsanto Lopez was arrested for violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Shortly after his arrest, Monsanto Lopez retained counsel. (ECF No. 8). Following four months of negotiations, the Government presented Monsanto Lopez with a pre-indictment proposed plea agreement on September 15, 2016. (ECF No. 212 at 19-24). Under the terms of the proposed agreement, Monsanto Lopez would plead guilty to one count of conspiracy to possess with intent to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The plea agreement further stipulated a recommended Guidelines Range of 120-121 months imprisonment, given the mandatory minimum applicable to the case. Without applying the mandatory minimum, the Guidelines Range was 97-121 months imprisonment. Monsanto Lopez rejected this proposed plea agreement.
On September 21, 2016, following Monsanto Lopez's rejection of the plea agreement, the Government filed an indictment charging
Monsanto Lopez and three co-defendants with participating in a narcotics conspiracy involving more than five kilograms of cocaine. (ECF No. 27). Two months later, on November 21, 2016, Monsanto Lopez replaced his counsel. (ECF No. 39).
A trial date was set for February 26, 2018. (ECF No. 79). On January 16, 2018, the Government filed its motions in limine, seeking to admit surveillance recordings of Monsanto Lopez and cooperator testimony at trial. (ECF No. 91). Less than one month later, on February 12, 2018, Monsanto Lopez entered a guilty plea. (See Tr. of Feb. 12, 2018 Plea Hr'g (ECF No. 106)). At the plea hearing, Monsanto Lopez agreed to plead guilty to conspiring to distribute five or more kilograms of cocaine. While Monsanto Lopez did not plead pursuant to a plea agreement, the Government submitted a Pimentel letter reflecting the same Sentencing Guidelines Range as the earlier proposed plea agreement, namely a Sentencing Guidelines Range of 120 to 121 months. This range reflected a calculated range of 97 to 121 months, and the mandatory minimum term of imprisonment of 120 months. (Id.) Monsanto Lopez was specifically asked at his plea hearing before Magistrate Judge Freeman whether he understood that the Guidelines Range in the Government's Pimentel letter had no binding effect on his eventual sentence and whether he understood that he could potentially face
a sentence higher than 121 months, which he confirmed:
THE COURT: Do you understand that the Court will not be able to determine the guidelines for your case until after a presentence report has been completed and both you and the government had the chance to challenge the facts reported there by the probation officer?
THE DEFENDANT: Yes.
. . .
THE COURT: I should also ask with respect to the government's guidelines calculation, do you understand that Judge Buchwald is in no way bound by the guidelines calculation contained in the government's letter, and she will do her own calculation which may end up being different from the calculation stated in the government's letter?
THE DEFENDANT: Yes.
THE COURT: Do you also understand that even if Judge Buchwald agrees with the government's calculation in its letter and therefore concludes that the guidelines range for your case, in light of the mandatory minimum, would be from 120 to 121 months, she would still be free to impose a sentence that is different from that range and perhaps a sentence that is greater than 121 months. Do you understand that?
THE DEFENDANT: Yes.
(Plea Tr., ECF No. 106 at 18:4-9; 23:12-24:1).
Following Monsanto Lopez's plea allocution, additional information about the conspiracy and Monsanto Lopez's role as the leader of the conspiracy was revealed during the trial of his codefendant Roberto Arce. Arce was convicted at trial and
subsequently sentenced to 120 months imprisonment, based in part on a determination that his role was as a manager of the conspiracy serving under Monsanto Lopez. (ECF No. 176; ECF No. 149 at 9). As a result of the information that came to light during Arce's trial regarding Monsanto Lopez's role in the conspiracy, and taking into account an increased drug quantity calculation, the Probation Department calculated an increased Sentencing Guidelines Range of 135 to 168 months in Monsanto Lopez's presentence report. (ECF No. 139). In May 2019, Monsanto Lopez was sentenced to 135 months imprisonment. (ECF No. 201).
Proceeding pro se, Monsanto Lopez petitioned this Court under 18 U.S.C. § 2255 to vacate his sentence and conviction and to re-sentence him according to the terms of the rejected September 15, 2016 plea agreement, alleging that his original counsel had instructed him not to accept the plea agreement based on a mistaken impression that Monsanto Lopez was safety valve eligible. (ECF No. 212). The Court ordered Monsanto Lopez's original counsel to submit an affidavit addressing these allegations, noting that Monsanto Lopez had waived his attorney-client privilege as a matter of law. May 15, 2020 Court Order (ECF No. 9).[3]
LEGAL STANDARD
A claim of ineffective assistance of counsel may be pursued via a Section 2255 petition. See Massaro v. U.S., 538 U.S. 500, 504-06 (2003). In order to prove a claim of ineffective assistance of counsel, a party must both show that (1) “counsel's representation fell below an objective standard of reasonableness, ” and that (2) counsel's “deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “The performance inquiry must be whether counsel's assistance was reasonable considering all...
