Federal District Court Opinions

JIM?‰NEZ v. U.S., (P.R. 12-14-2006) VALENT??N JIM?‰NEZ,
Petitioner, v. UNITED STATES OF AMERICA, Respondent. CIVIL
05-1439 (CCC), Cr. No. 03-142 (CCC). United States District
Court, D. Puerto Rico. December 14, 2006


CARMEN CEREZO, District Judge


Petitioner Valent?­n Jim?©nez petitioners this Court for a
writ of habeas corpus pursuant to 28 U.S.C. § 2255.
Petitioner, having pled guilty to conspiring to import
cocaine, has requested relief from his judgment. He alleges
ineffective assistance of counsel for counsel’s alleged
failure to request a downward departure due to conditions
of presentence confinement. However, a downward departure
was not contemplated in the plea agreement. For the reasons
stated below, the Petition is DENIED.


On May 21, 2004, petitioner Valent?­n Jim?©nez (hereinafter,
referred to as “Petitioner” or “Petitioner Jim?©nez”) was
charged in a Two-Count Indictment with violations to 21
U.S.C. § 841 and § 963. Specifically,
Petitioner Jim?©nez was charged for knowingly,
intentionally, and unlawfully conspiring with others to
possess with intent to distribute more than five (5)
kilograms of cocaine (Count One) and attempting to import
into the United States more than five (5) kilograms of
cocaine (Count Two).

With the written consent of Petitioner, the change of plea
hearing was held on February 5, 2004 before then
Magistrate-Judge Aida Delgado-Col??n. Petitioner pled guilty
to Count Two pursuant to a plea agreement entered under the
provisions of Rule (e)(1)(A) and (B) of the Federal Rules
of Criminal Procedure. Page 2

Petitioner Valent?­n admitted, as alleged by the
government, that on or about April 2003, he participated in
a conspiracy in which members of a drug trafficking
organization in St. Maarten, Netherlands Antilles, intended
to sell cocaine to an individual. The purchaser of the
cocaine (who was actually an undercover agent with the
Bureau of Immigration and Customs Enforcement) had the use
of a motor vessel and was to transport the cocaine to
Puerto Rico for subsequent sale. Specifically, on April 28,
2003, the undercover agent along with co-defendant Jos?©
Mota-Polanco traveled to St. Maarten where, as previously
agreed, the cocaine was to be delivered to the undercover
agent. Upon arriving in St. Marteen, co-defendant
Mota-Polanco and the undercover agent met with Petitioner
Jim?©nez and co-defendant Julio Angl??n-S??nchez. Later that
same day, Petitioner Jim?©nez and co-defendant Angl??n were
arrested by the Antillean authorities when they arrived at
Lee’s restaurant. A search was conducted of Petitioner
Jim?©nez’s and co-defendant Anglon’s possessions and five
(5) kilograms (gross weight) of cocaine were found in a
backpack. The Antillean authorities tested the narcotics
and determined it was cocaine. Petitioner Jim?©nez’s role in
the conspiracy consisted of attempting to deliver the
narcotics to the undercover agent in St. Marteen,
Netherlands Antilles. Petitioner acknowledged that among
the government’s evidence were the testimonies of the
undercover agent and law enforcement agents. In the February
5, 2004 plea agreement the parties determined that the
applicable sentencing base offense level (“BOL”) would be
that found under § 2D1.1 which provided for a BOL of
30 (inasmuch as Petitioner was being held accountable for
at least 3.5 kilograms but less than 5 kilograms of
cocaine). The plea agreement contained the following
pertinent provisions that the parties had agreed to:

a. a three (3) level adjustment is applicable, pursuant to
§ 3E1.1 (a), provided defendant accepts
responsibility for the offense charged;

b. a further (3) level adjustment is warranted, pursuant to
§ 3B1.2, inasmuch as defendant’s role in the
offense was between a minor and minimal participant; and
Page 3

c. should defendant meet all the requirements of the “safety
valve” provisions pursuant to § 5C1.2, an
additional two (2) level adjustment is applicable.

Thus, the total adjustments will provide for an adjusted
offense level (AOL) of 22. The parties did not stipulate
defendant’s criminal history category (CHC) which will be
determined after considering the pre-sentence investigation
report. Assuming a Criminal History Category (CHC) of “I,”
the applicable guideline range would be forty-one (41) to
fifty-one (51) months of imprisonment. The government
recommend a sentence at the lower end of the applicable
guideline range. (Cr docket entry 80).

More importantly, the plea agreement provided the
following clause: “Additional Guideline Adjustments or
Departures. The parties agree that no other adjustments or
departures are applicable in this case nor shall be sought
by the parties.” (Cr. docket entry 80).

The plea agreement was submitted and accepted by this
Court and, in accordance therewith, Petitioner was
sentenced on June 17, 2004, to a total term of 41 months of
imprisonment followed by five years of supervised release.

Petitioner subsequently filed on April 25, 2005 a Petition
pursuant to 28 U.S.C. § 2255 seeking to vacate his
sentence based on his contention that he was denied his
Sixth Amendment right to receive effective assistance of
counsel as protected by the United States Constitution.
Specifically, Petitioner argued that “his attorney failed
to seek a downward departure on the basis of conditions of
confinement he suffered while incarcerated in St. Marteen
[N.A.], awaiting extradition to the United States.”


Here, Petitioner Jim?©nez’ ineffective assistance of
counsel claim focuses upon his attorney’s alleged failure
to seek a downward departure due to his conditions of
pretrial detention at a prison located in St. Marteen,
N.A., an argument procedurally defaulted. Because
Petitioner did not raise his claim at sentencing or on
appeal, he must couch them in terms of the ineffective
assistance of counsel. The Supreme Court stated in Bousley
v. United States, 523 U.S. 614, Page 4 118 S.Ct. 1604,
1611, 140 L.Ed.2d 828 (1998), that where a criminal
defendant has procedurally defaulted his claims by failing
to raise them on direct review, the claims may be raised in
a motion to vacate only if the defendant can demonstrate
either cause and actual prejudice or his actual innocence.

A. Legal Standard for Procedural Default

1. “Cause” For Procedural Default

Petitioner essentially argues that “cause” exists based
upon the alleged ineffective assistance of his counsel in
failing to seek a downward departure due to the conditions
of confinement while detained in St. Marteen. Petitioner’s
ineffective assistance claim must be evaluated using the
familiar two-part test from Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner
must show that: (1) his counsel’s representation fell below
an objective standard of reasonableness; and (2) that there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. Strickland, 466 U.S. at 688-94, 104
S.Ct. 2052.

A court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies. Id.
at 697, 104 S.Ct. 2052.

2. “Prejudice”

The Court finds and concludes that Petitioner has failed
to show that he was prejudiced by the “error” he alleges
herein. On the contrary, the Court notes that Petitioner
received a substantial benefit from this plea agreement. In
exchange for his plea, the government agreed: 1) to dismiss
Count I; 2) to a three level adjustment provided that
Petitioner accepted responsibility for the offense charged;
3) to a three level adjustment since Petitioner’s role in
the offense was between a “minor and minimal” participant;
and 4) to an additional two level Page 5 adjustment should
the Petitioner meet all the requirements of the “safety
valve”. The Court also notes that the Government agreed to
recommend a sentence at the lower end of the applicable
guideline range. Indeed, Petitioner was sentenced at the
lower end, meaning 41 months.

To the contrary, Petitioner has not shown that he was
prejudiced because he has failed to argue that there was a
reasonable probability that, but for his counsel’s alleged
errors, he would not have pled guilty and would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52,
59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hence, Petitioner
has not fulfilled the “cause” requirement in order to
excuse his procedural default.

On the basis of the Court’s conclusion that Petitioner has
not demonstrated that he was prejudiced by any of the
errors of which he complains, the Court further concludes
that Petitioner’s counsel did not render ineffective
assistance in his criminal case. To the contrary, the Court
finds that counsel provided competent representation. Thus,
unless Petitioner can demonstrate that he is “actually
innocent,” he cannot show “cause” for his procedural
defaults. Petitioner has not shown-nor even alleged-that he
is “actually innocent.”

B. Petitioner’s claim fails on the merits

Even assuming that this claim is not procedurally barred,
nonetheless, fails on the merits. In reality, the Court need
not linger on the merits of Petitioner’s argument that he
received ineffective assistance of counsel because it is
well established that under no circumstance may a
defendant, who has secured the benefits of a plea agreement
and knowingly waived the right to seek other adjustments
and departures, as Petitioner did in his plea agreement,
thereafter challenge the merits of a sentence conforming to
the agreement. See, United States v. De-Le??n, 1 F.Supp.2d
108 (D. Puerto Rico 1998). In other words, Petitioner’s
express waiver in his plea agreement of his right to seek
any downward departure furnishes an independent basis for
declining to review his sentencing claim in his petition.

Petitioner erroneously relies on United States v. Carty,
264 F.3d 191 (2nd Cir. 2001). Indeed, earlier cases that
have treated presentence confinement conditions as
potential grounds Page 6 for downward departures primarily
arise from courts in the Second and Third Circuits; the
First Circuit has not explicitly addressed the question. In
Carty, supra, the Second Circuit held that presentence
confinement conditions may, in appropriate cases, be a
permissible basis for downward departures. Following this
holding, in United States v. Francis, 129 F.Supp.2nd 612
(S.D.N.Y. 2001), the district court granted a downward
departure for extremely harsh presentence confinement
conditions on the basis of an extensive factual record of
abuse and mistreatment suffered by the defendant in a
non-federal prison. Likewise, in United States v. Sutton,
973 F.Supp. 488 (D.N.J. 1997), the district court applied
Third Circuit precedent to conclude that a sentencing court
is not foreclosed as a matter of law from considering
pretrial confinement conditions as a possible basis for
departing downward, although it declined to so depart on
the facts of the case. Irrespective of the fact that the
First Circuit has not addressed this issue, in his plea
agreement, Petitioner knowingly agreed not to seek a
downward departure from the applicable guideline sentencing
range. Therefore, if his attorney had sought a downward
departure at sentencing, he would have acted contrary to
the terms of Petitioner’s plea agreement. Petitioner has
not indicated a desire to withdraw his plea. His attorney’s
failure to act in breach of the plea agreement could
scarcely constitute ineffective assistance of counsel in
such circumstances.

A careful review of the entire record has not revealed any
meritorious grounds for challenging Petitioner’s sentence
or guilty plea, let alone that he was entitled to any
downward departure.

In sum, Petitioner pled guilty, and was sentenced based on
what he admitted in the plea agreement, at the guideline
level agreed upon in the plea agreement. Petitioner Jim?©nez
got what he bargained for, he waived any right to seek a
downward departure when he signed the plea agreement, and
he has no basis to challenge it now. Page 7


It is ordered that Petitioner Valent?­n Jim?©nez’ request
for habeas relief under 28 U.S.C. § 2255 (docket
entry 1) is DENIED and his Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 is DISMISSED