Arboleda v. USA CV-96-199-SD 09/01/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Carlos Arboleda
v. Civil No. 96-199-SD
United States of America
O R D E R
Carlos Arboleda has moved for relief pursuant to 28 U.S.C. §
2255.1 The government objects.
128 U.S.C. § 2255 provides in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. Background
The facts of the underlying criminal case are thoroughly set
out by the First Circuit in United States v. Arboleda, 929 F.2d
858 (1st Cir. 1991), and will not be repeated here.
Discussion
Petitioner Arboleda argues that he was deprived of his right
to a grand jury indictment because the government proved a
conspiracy significantly different from the general conspiracy
charged in the indictment.
Citizens have a Fifth Amendment right to be tried only on a
grand jury indictment. This right is violated when a criminal
defendant is convicted on trial proof that varies from the
allegations in the indictment. United States v. Miller, 471 U.S.
130, 134 (1984). Petitioner argues that the indictment alleged a
broad cocaine conspiracy between Arboleda, Jean Lemieux, and
others. The government's trial proof, argues petitioner,
established two distinct conspiracies, one organized by Arboleda
and the other by Lemieux. Thus the trial proof of two distinct
conspiracies varied from the allegations of one expansive
conspiracy.
Here, even assuming a variance, Arboleda suffered no
prejudice. Berger v. United States, 295 U.S. 78, 82 (1935)
(variance between charge and proof is harmless error unless it
2 affects defendant's substantive rights). In United States v.
Glenn, 828 F.2d 855 (1st Cir. 1987), the First Circuit addressed
a fatal variance argument in a conspiracy trial. There, the
indictment charged a broad conspiracy to import both marijuana
from Thailand and hashish from Pakistan. At trial, the
government only proved defendant Glenn's participation in a
simpler conspiracy to import Pakistani hashish. The court found
that the resulting variance prejudiced defendant Glenn because
"[t]he judge instructed the jury that even though there was no
evidence that Glenn himself imported or physically possessed any
marijuana, the jury could convict him on the substantive charges
if they found him guilty of the charged conspiracy." Id. at 859-
60. This instruction would not have been given had Glenn been
indicted properly. The jury convicted Glenn of importing and
possessing marijuana, and he received a longer sentence than he
would have for just the hashish conspiracy.
Unlike Glenn, Arboleda was not convicted of the substantive
crimes committed by alleged co-conspirator Lemieux, nor was
Arboleda sentenced on the basis of Lemieux's drug activities.
The law would have permitted the sentence he received for either
the conspiracy charged or the smaller conspiracy allegedly
proved. Thus Arboleda suffered no prejudice from the variance
between the allegations and trial proof. See United States v.
3 Doherty, 867 F.2d 47, 65 (1st Cir. 1989) (finding no prejudice
where sentence could have been imposed for the conspiracy proved
at trial) .
Petitioner next argues that the sentencing court erred in
applying the United States Sentencing Guidelines (USSG) to his
conspiracy conviction because his conspiracy ended before the
effective date of the Guidelines. Courts have held that it does
not run afoul of the Ex Post Facto Clause to apply the Sentencing
Guidelines to conspiracies that begin before the effective date
of November 1987 and continue after that date. See United States
v. Dale, 991 F.2d 819, 853 (D.C. Cir. 1993). Arboleda argues
that the only trial evidence of post-November 1987 cocaine
activity was Lemieux's testimony about a single cocaine
transaction with Arboleda in 1988. Arboleda complains that such
testimony did not carry sufficient indicia of reliability to
justify reliance by the sentencing court. "In sentencing
proceedings, . . . credibility determinations lie primarily
within the realm of the [sentencing] court." United States v.
Brewster, 1 F.3d 51, 55 (1st Cir. 1993). Lemieux's testimony
regarding when he last purchased drugs from Arboleda was not so
suspect that no rational fact finder would credit it. Thus the
sentencing court was justified in relying on Lemieux's testimony
in fixing the dates of Arboleda's conspiracy.
4 Arboleda next challenges the court's findings with regard
to the quantity of cocaine attributable to him for sentencing
purposes. In determining the amount of drugs to be attributed to
a defendant, the court may consider, among other things, trial
testimony and the presentence report. United States v. Morris,
46 F.3d 410, 425 (5th Cir.), cert, denied, 515 U.S. 1150 (1995).
"So long as the information concerning the quantity of drugs
involved has 'sufficient indicia of reliability to support its
probable accuracy,' the sentencing judge may consider it."
United States v. Mocciola, 891 F.2d 13, 16 (1st Cir. 1989)
(quoting United States v. Roberts, 881 F.2d 95, 106 (4th Cir.
1989)).
At the outset, the court notes that at the sentencing
hearing it found Arboleda responsible for 100 kilograms of
cocaine, which indicated a base offense level of 36, covering at
least 50 but less than 150 kilograms of cocaine. Thus Arboleda
can only qualify for a lower base offense level if the court
overestimated the quantity of cocaine by more than 50 kilograms.
In attributing 100 kilograms to Arboleda, the court relied
upon the presentence report, Morris, supra, 46 F.3d at 425 ("The
district court may rely on the information in the presentence
report if the information has some minimum indicium of
reliability."), and trial testimony, which together support the
5 conclusion that Arboleda dealt with at least 100 kilograms of
cocaine. See Presentence Report (part of Exhibit B to
petitioner's memorandum) at 9, 5 16 ("the probation officer
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Arboleda v. USA CV-96-199-SD 09/01/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Carlos Arboleda
v. Civil No. 96-199-SD
United States of America
O R D E R
Carlos Arboleda has moved for relief pursuant to 28 U.S.C. §
2255.1 The government objects.
128 U.S.C. § 2255 provides in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. Background
The facts of the underlying criminal case are thoroughly set
out by the First Circuit in United States v. Arboleda, 929 F.2d
858 (1st Cir. 1991), and will not be repeated here.
Discussion
Petitioner Arboleda argues that he was deprived of his right
to a grand jury indictment because the government proved a
conspiracy significantly different from the general conspiracy
charged in the indictment.
Citizens have a Fifth Amendment right to be tried only on a
grand jury indictment. This right is violated when a criminal
defendant is convicted on trial proof that varies from the
allegations in the indictment. United States v. Miller, 471 U.S.
130, 134 (1984). Petitioner argues that the indictment alleged a
broad cocaine conspiracy between Arboleda, Jean Lemieux, and
others. The government's trial proof, argues petitioner,
established two distinct conspiracies, one organized by Arboleda
and the other by Lemieux. Thus the trial proof of two distinct
conspiracies varied from the allegations of one expansive
conspiracy.
Here, even assuming a variance, Arboleda suffered no
prejudice. Berger v. United States, 295 U.S. 78, 82 (1935)
(variance between charge and proof is harmless error unless it
2 affects defendant's substantive rights). In United States v.
Glenn, 828 F.2d 855 (1st Cir. 1987), the First Circuit addressed
a fatal variance argument in a conspiracy trial. There, the
indictment charged a broad conspiracy to import both marijuana
from Thailand and hashish from Pakistan. At trial, the
government only proved defendant Glenn's participation in a
simpler conspiracy to import Pakistani hashish. The court found
that the resulting variance prejudiced defendant Glenn because
"[t]he judge instructed the jury that even though there was no
evidence that Glenn himself imported or physically possessed any
marijuana, the jury could convict him on the substantive charges
if they found him guilty of the charged conspiracy." Id. at 859-
60. This instruction would not have been given had Glenn been
indicted properly. The jury convicted Glenn of importing and
possessing marijuana, and he received a longer sentence than he
would have for just the hashish conspiracy.
Unlike Glenn, Arboleda was not convicted of the substantive
crimes committed by alleged co-conspirator Lemieux, nor was
Arboleda sentenced on the basis of Lemieux's drug activities.
The law would have permitted the sentence he received for either
the conspiracy charged or the smaller conspiracy allegedly
proved. Thus Arboleda suffered no prejudice from the variance
between the allegations and trial proof. See United States v.
3 Doherty, 867 F.2d 47, 65 (1st Cir. 1989) (finding no prejudice
where sentence could have been imposed for the conspiracy proved
at trial) .
Petitioner next argues that the sentencing court erred in
applying the United States Sentencing Guidelines (USSG) to his
conspiracy conviction because his conspiracy ended before the
effective date of the Guidelines. Courts have held that it does
not run afoul of the Ex Post Facto Clause to apply the Sentencing
Guidelines to conspiracies that begin before the effective date
of November 1987 and continue after that date. See United States
v. Dale, 991 F.2d 819, 853 (D.C. Cir. 1993). Arboleda argues
that the only trial evidence of post-November 1987 cocaine
activity was Lemieux's testimony about a single cocaine
transaction with Arboleda in 1988. Arboleda complains that such
testimony did not carry sufficient indicia of reliability to
justify reliance by the sentencing court. "In sentencing
proceedings, . . . credibility determinations lie primarily
within the realm of the [sentencing] court." United States v.
Brewster, 1 F.3d 51, 55 (1st Cir. 1993). Lemieux's testimony
regarding when he last purchased drugs from Arboleda was not so
suspect that no rational fact finder would credit it. Thus the
sentencing court was justified in relying on Lemieux's testimony
in fixing the dates of Arboleda's conspiracy.
4 Arboleda next challenges the court's findings with regard
to the quantity of cocaine attributable to him for sentencing
purposes. In determining the amount of drugs to be attributed to
a defendant, the court may consider, among other things, trial
testimony and the presentence report. United States v. Morris,
46 F.3d 410, 425 (5th Cir.), cert, denied, 515 U.S. 1150 (1995).
"So long as the information concerning the quantity of drugs
involved has 'sufficient indicia of reliability to support its
probable accuracy,' the sentencing judge may consider it."
United States v. Mocciola, 891 F.2d 13, 16 (1st Cir. 1989)
(quoting United States v. Roberts, 881 F.2d 95, 106 (4th Cir.
1989)).
At the outset, the court notes that at the sentencing
hearing it found Arboleda responsible for 100 kilograms of
cocaine, which indicated a base offense level of 36, covering at
least 50 but less than 150 kilograms of cocaine. Thus Arboleda
can only qualify for a lower base offense level if the court
overestimated the quantity of cocaine by more than 50 kilograms.
In attributing 100 kilograms to Arboleda, the court relied
upon the presentence report, Morris, supra, 46 F.3d at 425 ("The
district court may rely on the information in the presentence
report if the information has some minimum indicium of
reliability."), and trial testimony, which together support the
5 conclusion that Arboleda dealt with at least 100 kilograms of
cocaine. See Presentence Report (part of Exhibit B to
petitioner's memorandum) at 9, 5 16 ("the probation officer
submits that between 100 and 150 kilograms of cocaine can be
attributable to the defendant"); Trial Transcript volume 4 (Tr.
IV) 171-191 (Lemieux testimony); Tr. Ill 217, 230 (Mical
testimony); Tr. II 164-65 (Riberdy testimony). Petitioner
complains that such information does not carry the necessary
indicia of reliability because he did not have a meaningful
opportunity to develop trial evidence on the issue of drug
quantities. At trial, Arboleda maintained his innocence of drug
trafficking. He could not have been expected to deny
participation in the drug trafficking conspiracy while
simultaneously offering evidence on the quantity of drugs.
Arboleda cites then-Chief Judge Stephen Breyer's article. Federal
Sentencing Guidelines and the Key Compromises upon which They
Rest, 17 Hofstra L. Rev. 1 (1988), which states, "A drug crime
defendant . . . cannot be expected to argue at trial to the jury
that, even though he never possessed any drugs, if he did so, he
possessed only one hundred grams and not five hundred, as the
government claimed." Id. at 10; see also United States v.
Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990), cert, denied,
500 U.S. 927 (1991). Arboleda complains that the trial evidence
6 on the issue of quantities was comprised solely of the government
witnesses' unchallenged testimony and was one-sided and
unreliable.
However, the court gave Arboleda an opportunity to produce
quantity evidence at the sentencing hearing. Arboleda declined
that opportunity, and his attorney said, " [W]e will essentially
rest on the Court's memory of the evidence that occurred at
trial." Tr. of March 13, 1990, sentencing hearing at 3.
Petitioner cannot now complain that he had no meaningful
opportunity to develop evidence on the issue of quantity.
Arboleda goes to great lengths to explicate the points of
impeachment against the witnesses who testified on the issue of
drug quantities, such as their cooperation with the government
and lack of corroboration. However, Arboleda had full
opportunity to develop impeachment at trial, and simply because
there are points to impeach the witnesses does not mean that
their testimony carries no indicia of reliability.
Arboleda next challenges the court's denial of an acceptance
of responsibility (AOR) reduction. A sentencing court's
evaluation of a defendant's acceptance of responsibility "is
entitled to great deference on review." USSG § 3E1.1, comment 5;
United States v. Marrocruin, 136 F.3d 220, 223 (1st Cir. 1998).
"This adjustment is not intended to apply to a defendant who puts
7 the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse." USSG § 3E1.1, comment 2.
The court denied the AOR reduction because, while Arboleda pled
guilty to the original indictment, he withdrew that plea and put
the government to its burden of proof at trial on the superseding
indictment. Tr. of March 13, 1990, sentencing hearing at 14.
Arboleda contends that the court's error was in assuming that,
simply because Arboleda put the government to its proof, he was
disqualified from the AOR reduction. As support, he cites
comment 2, USSG § 3E1.1, which provides, "Conviction by trial,
however, does not automatically preclude a defendant from
consideration for such a reduction." However, the comment goes
on to say that only in "rare situations" will conviction by trial
not preclude an AOR reduction. Arboleda has not demonstrated why
this is such a "rare situation." Thus the court will not disturb
its previous finding that Arboleda is not entitled to an AOR
reduction.
Petitioner next makes an ineffective assistance of counsel
claim under Strickland v. Washington, 466 U.S. 668 (1984). The
standard for such claim is that, first, counsel's performance
must have fallen below an objective standard of reasonableness,
and, second, there is a reasonable probability that, but for
8 counsel's errors, the result of the proceedings would have been
different. Id. at 687.
Arboleda argues that his trial counsel made several
unreasonable mistakes. However, he admits he is guilty of a
cocaine conspiracy that fully supports his sentence. Thus
Arboleda cannot meet the second prong of Strickland that, but for
his counsel's mistakes, he would have been acquitted by the jury.
Arboleda also argues that his counsel's performance on appeal
fell below an objective standard of reasonableness because his
counsel did not raise the constitutional arguments that Arboleda
raises in this habeas petition. However, as this court has
rejected Arboleda's constitutional claims as meritless, it was
not unreasonable for Arboleda's counsel to fail to raise those
claims.
Conclusion
For the foregoing reasons, petitioner's motion to vacate and
set aside his sentence is denied.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
September 1, 1998
cc: Carlos Arboleda, pro se Paul M. Gagnon, Esq. 9