Pimentel Gautier v. United States

ll occa ittyy UNITED STATES DISTRICT COURT ijP SOUTHERN DISTRICT OF NEW YORK | ELECTR¢ NICALLY FILED x DOC #: ai LUIS ALBERTO PIMENTEL GAUTIER, pare Fikeo: [Lief a/k/a ALEXIS VEGA RODRIGUEZ Petitioner, 21CV7198(CM) |} -v.- 17CR483(CM) |: UNITED STATES OF AMERICA, Respondent. EE DECISION AND ORDER DENYING PETITIONER’S MOTION TO vata HIS CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. § 2955 McMahozn, J.: On October 22, 2019, Luis Alberto Pimentel Gautier pleaded guilty, Pt rsuant to a plea agreement, to one count of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 (b)(1)(C) and 846. On February 6, 2020, te Coun sentenced Gautier to 78 months’ imprisonment. He is currently serving his sentend at the Federal Correction Institution in Pollock, Louisiana—his projected release date is July 4 2024. On April 12, 2021, Gautier—through his attorney, John F. Cicilline, □□ has represented Gautier throughout these proceedings—filed a motion pursuant to 28 US.C. 205 5 asking that Gautier be resentenced. (ECF No. 67.) In his five-page memorandum, cn “acknowledges that the issues he raises in this motion have been considered by the Court df Appeals for the Second Circuit and rejected.” (ECF No. 67-1 at 1.) He asserts, however, ta he “continues to maintain that important issues may have been inadequately argued” by ‘im at sentencing, and he “believes that if properly set out, this court would impose a lesser sentence than the 78 months that was imposed here.” (/d.) First, counsel argues—as he did in advance of Gautier’s original cei Gautier should receive credit for the seven months he spent detained during his USVI ‘illegal reentry prosecution, prior to being transferred to this district. (/d. at 1-2.) Second, counsel argues—as he did before—that Gautier should be grant □ a reduction in sentence based on the allegedly unconstitutional living conditions at MDC srooklyn, where Gautier was previously housed. Counsel argues that this Court refused to consider such a reduction at sentencing because it misapprehended counsel’s argument as addressing Gautit r’s confinement in the USVI, rather than MDC Brooklyn, and that if counsel’s “argument had b sen more precise the court would have considered a variance.” (/d. at 2.) Third, counsel argues—as he did before—that the Court should consfict the fact that Gautier’s Criminal History Category rose from Category I to Category I ts of his USVI illegal reentry conviction, which was purportedly driven by Gautier’s attempt ‘6 donate a kidney to his dying mother. (/d.) Counsel argues that “[t]he court did not specifically pddress this issue because counsel had not effectively argued the point.” (/d.) Fourth, counsel argues that in connection with sentencing, the defen submitted “17 letters which established [Gautier’s] substantial rehabilitation’”—including, his employment history—but that the Court apparently did not review or consider these om at 3.) Counsel argues that “had the court been aware of [them], its sentence would have been lifferent.” (Id.) Fifth, counsel argues—again, as he did before—that Gautier shoul have received a sentence akin to the 36 months’ imprisonment received by Hernandez. (Jd. at 3- ) Counsel argues that the Court rejected this argument because it “did not have a more argument from counsel on this point . . . [and] was left with the impression that the defendant ma have continued with a life of drug dealing, even though the letters and memorandum suggested otherwise.” (Ud. at 4.) : The Government urges the Court to dismiss the Petition on the groundstthat (1) Gautier knowingly and voluntarily waived his right to collaterally attack his ce in his plea agreement with the Government, and (2) to the extent that the Petition is to be op as a claim of ineffective assistance of counsel, outside the scope of the collateral-attack yaives it fails to meet the rigorous standard for such claims set forth in Strickland. (Governmpnt Memo. ECF Doc. 73.) I. Gautier Waived His Right to Collaterally Attack His Sentence In the Plea Agreement, Gautier expressly agreed not to “bring a collateral challenge, including but not limited to an application under Title 28, United States Code, 2255... of any sentence within or below the Stipulated Guidelines Range of 78 to 97 month imprisonment.” (Plea Agreement at 4.) Such waivers are presumptively enforceable, and the —— under which a court will decline to enforce a collateral-attack waiver are very limit d. See Sanford v. United States, 841 F.3d 578, 580 (2d Cir. 2016) (“A defendant’s knowing and v : luntary waiver of the right to appeal or collaterally attack his conviction and/or sentence is enforce able... [and the] ‘exceptions to the presumption of the enforceability of a waiver... occupy a Jery circumscribed area of our jurisprudence.’” (quoting United States v. Gomez-Perez, 215 315, 319 (2d Cir. 2000))). As the Second Circuit has explained, such exceptions include situation’ “when the waiver was not made knowingly, voluntarily, and competently, when the sentence wa: imposed basedon constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, when the government breached the plea agreement, or when the sentencing court failed fo enunciate any rationale for the defendant’s sentence.” Gomez-Perez, 215 F.3d at 319 (internal eidations omitted). Gautier does not suggest, and the record does not support, that the collatetal-attack waiver contained in the Plea Agreement is unenforceable for any of the reasons listed Hor During his plea proceeding, Gautier affirmed that prior to signing the Plea Agreement, he fem it with his attorney and understood its contents. (Plea Tr. at 18-22.) Gautier confirmed bis understanding that the Plea Agreement contained a Stipulated Guidelines Range of " to 97 months’ imprisonment, and that by pleading guilty, he was “giving up [his] right to enailene [a sentence of 97 months’ or less] by appeal to the Court of Appeals or by any further application to this Court.” (/d. at 18-20.) And Gautier affirmed that his plea was “voluntary and bade of [his] own free will.” (/d. at 22.) Thus, Gautier’s waiver was knowing and voluntary. Eyen now, Gautier does not claim to have misunderstood the terms of the Plea Agreement, nor does he argue that this case fits within any of the other exceptions to the enforcement of collateral-atta bk waivers. Because this Court imposed a sentence of 78 months’ eee within the range Gautier agreed not to challenge, Gautier’s Petition is barred by the Plea Agre¢ment’s collateralattack waiver. The petition is dismissed as barred by his plea agreement with the Se IL. Gaui Ha Not Et Vall hin oats sna Cams Even if the Court were to construe Gautier’s Petition as asserting “a of ineffective assistance of counsel, outside the scope of the collateral-attack waiver, it wo 1d fail to meet the heavy burden for such claims. A. Legal Standard To evaluate a claim of ineffective assistance of counsel, courts the framework [4] established in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, a i must first show that his attorney’s performance fell below “an objective standard of reaso bleness” under “prevailing professional norms.” Jd. at 687-88. He must also “affirmatively vol prejudice.” Jd. at 693. Only if both of these elements are satisfied can the petitioner demonstrate a his “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guarantded the defendant by the Sixth Amendment.” Jd. at 687. : Under the first prong of the Strickland test, courts apply a “strong presumption that counsel’s conduct f[ell] within the wide range of reasonable professional eres because it is all too easy to conclude that a particular act or omission ofcounsel was smeasorpble in the harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002) (internal eto omitted). “[T]here are countless ways to provide effective assistance in any given case,”|and the “central concern” of the Strickland inquiry “is not with grading counsel’s vetmuned but instead with ensuring that there has been no “breakdown in the adversarial process.” United has v. Aguirre, 912 F.2d 555, 560-61 (2d Cir. 1990) (internal quotation marks and citations Under the second prong of Strickland, a defendant must meet the bay burden of affirmatively proving prejudice. To do so, the defendant “must demonstrath that there is a reasonable probability that, but for counsel’s unprofessional errors, the result if the proceeding would have been different.” Strickland, 466 U.S. at 694 . “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding,’” Harrington v. fone 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 693 ), as “not every error that peeean could have influenced the outcome undermines the reliability of the result of proceeding.” Strickland, 466 U.S. at 693 . Furthermore, when considering the two prongs f Strickland, the Supreme Court has explained that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, el course should be followed.” Jd. at 697. Finally, the filing of a Section 2255 petition does not, by itself, obligate ns district court to conduct an evidentiary proceeding. Newfield v. United States, 565 F.2d 203, 207 (2d Cir. 1977) (“The motion does not entitle petitioner automatically to a hearing.”). Ori the sdavery a district court may dismiss a Section 2255 petition without a hearing where the defen fails to raise “detailed and controverted issues of fact.” Jd. Similarly, where the existing a “conclusively show{s] that the [petitioner] is entitled to no relief,” summary dismissal without hearing may be appropriate. Jd. (quoting Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 194 4)); see also 28 U.S.C. § 2255 (b) (stating that the Court shall grant a hearing “[uJnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no ih, B. Discussion Each of Gautier’s arguments—traised here by the very same counsel who has represented Gautier throughout these proceedings—fails under the Strickland, as there oe basis in the record to conclude that counsel’s performance fell below “an obj a standard of reasonableness” under “prevailing professional norms,” or that any alleged err Is caused actual prejudice. . First, with respect to counsel’s argument that defendant should hav received credit toward his present prison sentence for the time he spent detained during the usu proceedings: Counsel presented this same argument to the Court, in detail, in his sentencing submission prior to sentencing. (ECF No. 59 at 1-7.) Moreover, the Court expressly considered, but rejected, this argument during the sentencing hearing itself. isenencine at 16-17, 19.) Accordingly, there is no basis to conclude that counsel acted ineffectively i connection with this argument, or that any alleged error was prejudicial. . Second, with respect to counsel’s argument regarding the conditions atIMDC Brooklyn: It is true that the Court construed defense counsel’s arguments at the sentencing si as pertaining to the conditions of confinement in the USVI (/d. at 12-13); however, ¢ ounsel presented his “MDC is not the Waldorf “ argument at length in his written senten Le submission: MDC, Brooklyn does not feature the amenities that one would find at the aldorf □ Astoria, and the people who have reservations at MDC seem to understahd that. But the law requires that the innkeeper at MDC maintain a modicum pr good housekeeping. See Rhodes v Chapman, 452 US 337 (1981). Walker v Schult, 717 F3d 119 (2d Cir 2013); Phelps v Kapnolas, 398 F3d 114 (2d Cir 2002) (per curiam). That standard would preclude the presence of vermin, roaches{and the absence of heat, all of which conditions have been documented as being) present by the Justice Department Office of the Inspector General. As a result, a civil action was brought against the Warden in Scott v Quay. The suit alleged that the warden failed to protect against the unreasonabl risk of serious damage to his health and that as a result inmates had suffered thé loss of the assistance of counsel in preparation for their defense, apart fon being exposed to unsafe and unsanitary living conditions. The court in Wilson Wy Seiter, 501 US 294 (1991) specifically held that "low cell temperatures at night combined with a failure to issue blankets may establish an Eighth A endment violation." id 125 Moreover, the circuit has recognized that unsanitary conditions in a prison can rise to the level of cruel and unusual punishment. citing LaReau v MacDougall 473 F2d 974 (2d Cir 1972); Gaston v Coughlin, 249 F3d 156 ,(2d Cir 2001). Under USSG 5K 2.0 of the guidelines, a district court may depart from he range prescribed under the guideline if there exists an aggravating or mitigating circumstance of a kind or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guideline that should result ina sentence different from that described. United States v Brady, 447 F3d 326 (2d Cir 2005). The authority for this kind of variance is also found in USSG Manuel Ch 1 pt A, introductory cmt. 4 (b), when a circumstance falls outside of the heartland of the typical case encompassed by each guideline. Brady, at 3 Because the, conditions of the defendant’s confinement do not meet constitutional standards and because the guidelines allow for a variance in an/area not considered by the Sentencing Commission this defendant should rec¢ive some allowance for his imprisonment in an atmosphere that violates the Eighth Amendment. (ECF No. 59 at 7-9). The Court considered this argument along with all of defendant’s other arguments—whether made as part of his written submission or orally at [7] sentencing—in formulating defendant’s sentence. That counsel did not repeat this argument in his oral presentation had zero impact on defendant’s ultimate sentenc Third, with respect to counsel’s claim that he did not make effective oral erpuments at sentencing regarding the defendant’s Criminal History Category (namely, that : defendant’s Criminal History Category rose from Category I to Category II as a result of illegal reentry conviction, a reentry counsel argued was motivated by his clients desire to do ate a kidney to his mother), there was, once again, no prejudice to defendant, because counsel : ued this point in his written sentencing memorandum. There was no need for counsel to gue this point further at the sentencing proceeding, because the Court acknowledged during colloquy with the parties that it was aware that the illegal reentry conviction was the predicate for Jefendant being in CHC II (Sentencing Tr. at 15), and that defendant claimed the only reason b ‘reentered was to donate a kidney to his mother. (/d. at 17.) Accordingly, the record does ot support that counsel failed to put this argument before the Court, or that counsel’s failure | push the issue further resulted in any actual prejudice to the defendant. Fourth, with respect to counsel’s argument regarding the defendant's evidence of rehabilitation: It is true that during the sentencing hearing, the Court and the Sporn stated that they were aware of no evidence concerning the legitimate employment $f the defendant during the period between the defendant’s prior convictions and the instant “p conduct. (/d. at 16.) In the Petition, counsel argues that these statements by the Court and the Government were contradicted by 17 letters of support that he submitted prior to sentencink, and he argues that had the Court been aware of those letters at the time, its sentence would have been different. (ECF No. 67-1 at 3.) As an initial matter, it is worth noting that defense counsel made no atte pt to correct the record during the hearing itself, when the Court and the Government na the statements referenced above (Sentencing Tr. at 16), nor did defense counsel interject when Ine Court listed, at the outset of the hearing, the written materials it had received, which did , ot include the referenced letters.' (/d. at 3.) : That said, defense counsel does not argue in the Petition that he failed to'submit the 17 letters in advance of sentencing. In fact, he argues just the opposite, asserting int he delivered the letters to Probation and the Government “well in advance of sentencing.” (E F No. 67-1 at ‘ 3.) ' Even if defense counsel did fail to submit the letters, counsel has not estab lished that this error resulted in actual prejudice to the defendant. First, defense counsel raised i ese same arguments regarding employment and rehabilitation—and referenced the letters eg the same—in his written sentencing submission. (ECF No. 59 at 13-15.) Asa rt or not the letters themselves were before the Court, the arguments predicated on them w re Second, a review of the letters in question—which were attached to the defendant's appellate briefing and are attached to the Government’s Opposition as Exhibit clin this case (ECF Document 73-3)—reveals only a single one-page letter regarding employ bent history— from an auto business in the Dominican Republic—which states simply that the efendant was employed as a “sale agent” from 2002 to 2014 and from 2016 to 2018. Jd. Had . Court received the letter in question, it would have carried no weight with me. The Pro} ation Department stated in the Presentence Investigation Report that it was “unable che the defendant’s employment history (PSR { 88), and the claimed employment proves nothing about defendant’s purported rehabilitation since he was convicted in this case of drug dealing “from at Tecoma 1 The Court searched the official court file and chambers file for the 17 letters in question and foufd no such letters. And the Government represents that “although the Assistant United States Attorneys who handled this prosecution have since left this Office, the Assistant United States Attorney who appeared for sentencing found no record of the referenced 17 letters in her files. To this day, the Government is not aware of defense counsel hav ing filed the letters on the docket in this matter.” (Govt. Memo at 18.) 9 least January 2016 through at least May 24, 2016”—1luring the same period he I he was lawfully employed selling cars. Accordingly, defendant was not prejudiced fro 3 the Court not having seen the letter because it would not have altered the sentenced the Courtlultimately imposed. Fifth, with respect to counsel’s argument regarding the mmenonslos of the defendant’s sentence relative to Hernandez’s: This argument, like the others, w. raised by defense counsel prior to sentencing, both in his written submission (ECF No. ste 14-15) and during the hearing itself. (Sentencing Tr. at 9-11.) And, as above, the Court spe seat addressed this argument, stating that it did not consider the defendant “to be ne comparable to Mr. Hernandez,” given the defendant’s greater role in the underl hing offense and prior criminal record. (/d. at 10, 15-16, 19.) Whether or not defense counsel cou a have made a “more substantial argument” regarding the defendant’s life following his earlier convictions (ECF No. 67-1 at 4), the fundamental differences between Gautier and Hernand . z cited by the Court would have remained, and this argument would have failed. In sum, counsel makes essentially the same arguments in the present motion as he made at the time of sentencing and on appeal. To the extent that he now believes that e could have articulated the arguments better, or pressed them harder, does not rise to the lev 1 of constitutionally deficient assistance of counsel under Strickland. } [10] I. Conclusion : Gautier’s motion to set aside his conviction and sentence is DENIED: Lihere is no need for a hearing in this case because the existing record conclusively shows t nt Gautier is not entitled to the requested relief. The Court declines to issue a certificate of appealability because 4° has been no “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 ()(2); see United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). Further, the Court finds, purgant to 28 U.S.C. § 1915 (a)(3) that any appeal from an order denying Gautier’s motion would not be taken in good faith. See Feliz v. United States, No. 01-cv-5544, 2002 WL 1964347 , at *7 ( DN.Y. Aug. 22, 2002). This constitutes the decision and order of the court. . Dated: November 10, 2021 Colleen McMahon United States District Court Judge BY ECF TO ALL PARTIES