Pichardo v. United States

CourtDistrict Court, S.D. New York
DecidedJune 16, 2020
Docket1:19-cv-11559
StatusUnknown

This text of Pichardo v. United States (Pichardo v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pichardo v. United States, (S.D.N.Y. 2020).

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------ X : A DOLFO PICHARDO, : Petitioner, : : 19 Civ. 11559 -against- : 18 Crim. 246 : (LGS) UNITED STATES OF AMERICA, : Respondent. : OPINION AND ORDER ------------------------------------------------------------ X

LORNA G. SCHOFIELD, District Judge:

Petitioner Adolfo Pichardo brings this pro se Petition to vacate, set aside or correct his sentence for violating 18 U.S.C. §§ 1542, 1347, 641 and 1028A(a)(1) following a guilty plea. See 28 U.S.C. § 2255. Petitioner claims that his guilty plea was not knowing, intelligent or voluntary and that he received ineffective assistance of counsel. For the reasons stated below, the Petition is denied. I. BACKGROUND Petitioner entered into a plea agreement (“Plea Agreement”) with the Government, dated March 27, 2018. Pursuant to the agreement, the Government agreed to accept Petitioner’s guilty plea to four counts -- making a false statement in a passport application (“Count One”), healthcare fraud (“Count Two”), theft of government benefits (“Count Three”), and aggravated identify theft in connection with Counts One through Three (“Count Four”). The agreement stated the maximum sentence for each count, and specified that Count Four carried a mandatory term of imprisonment of two years, which must be served consecutively to any other term. The agreement also stated that the total maximum term of imprisonment on all counts was 32 years, with a mandatory term of imprisonment of two years, which must be served consecutively. In the Plea Agreement, Petitioner and the Government stipulated to certain calculations under the United States Sentencing Guidelines (“Guidelines”): the parties agreed to an offense level of 12, and a criminal history category of IV based on information then available to the Government; this resulted in a Guidelines recommendation for Counts One through Three of 21

to 27 months’ imprisonment; Count Four carried a mandatory minimum sentence of 24 months’ imprisonment to be added consecutively to the sentence on Counts One through Three; this resulted in a stipulated Guidelines range of 43 to 51 months’ imprisonment. The Plea Agreement also stated that “the Guidelines are not binding on the Court” and contained the defendant’s acknowledgement that the court could impose any sentence up to the statutory maximum -- i.e., 32 years. Petitioner pleaded guilty on March 28, 2018, before Magistrate Judge Barbara Moses. In response to the court’s question, Petitioner stated that he was “very satisfied” with his attorney’s representation of him. Before accepting Petitioner’s plea, Judge Moses informed Petitioner that the sentence would be imposed by the sentencing judge and limited only by what the law

permits; that even if he was surprised or disappointed by his sentence, he would still be bound by his guilty plea; and that the Court could impose the maximum sentence of 32 years, with a mandatory term of two years on Count Four, which must be served consecutively to the sentence on Counts One, Two and Three. Judge Moses also referenced the stipulated Guideline range in the Plea Agreement. Petitioner confirmed that he understood the terms of the Plea Agreement, including the sentencing calculations, understood that they were not binding on the sentencing judge, that she could make her own calculation of the guideline range and could impose a sentence above or below that range up to the maximum sentence. Petitioner allocuted to all four counts, and admitted as to all four that he had falsely used another person’s identity. At the conclusion of the proceeding, the Court found that Petitioner understood his rights and the consequences of his plea, including the sentence that may be imposed. Petitioner’s presentence report (the “Presentence Report”), last revised June 19, 2018, revealed that Petitioner had engaged in additional criminal activity beyond what was reported in

the Plea Agreement. These additions resulted in a criminal history category of VI, which in turn increased the Guidelines recommendation for the first three counts to 30 to 37 months. With Count Four’s 24-month mandatory minimum, the Presentence Report calculated a recommended guideline range for all counts of 54 to 61 months. Petitioner was sentenced on August 16, 2018. At his sentencing hearing, Petitioner stated that he had reviewed the Presentence Report with his attorney and a translator. Defense counsel also stated that he had “had a long discussion with [Petitioner about] why there was a difference” between the Guidelines recommendation in the Plea Agreement and in the Presentence Report. Neither the Government nor Petitioner objected to the calculation in the Presentence Report. The Court accepted the Guidelines calculation in the Presentence Report and sentenced

Petitioner to a Guidelines sentence of 30 months on each of the first three counts to run concurrently, and 24 months on Count Four to be served consecutively, totaling 54 months. On appeal, Petitioner challenged his sentence on the grounds that it was procedurally and substantively unreasonable because the Court had not considered his health issues, need for medical care and the non-violent nature of his crimes. United States v. Pichardo, 782 F. App’x 60, 61 (2d Cir. 2019). The Second Circuit found that the sentence was neither procedurally nor substantively unreasonable because the Court had explained its consideration of these factors and the sentence was on the lowest end of the sentencing guidelines recommended range. Id. at 62. II. LEGAL STANDARD “Because collateral challenges are in tension with society’s strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack.” Salemo v. United

States, 187 F. Supp. 3d 402, 413 (S.D.N.Y. 2016) (quoting Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010)). A federal prisoner may move to vacate, set aside, or correct his sentence on four grounds pursuant to § 2255: (1) ‘that the sentence was imposed in violation of the Constitution or laws of the United States, or [ (2) ] that the court was without jurisdiction to impose such sentence, or [ (3) ] that the sentence was in excess of the maximum authorized by law, or [ (4) ] is otherwise subject to collateral attack.’

United States v. Hoskins, 905 F.3d 97, 102 (2d Cir. 2018) (alteration in original) (quoting U.S.C. § 2255(a)), cert. denied, 140 S. Ct. 55 (2019). “In ruling on a motion under § 2255, the district court is required to hold a hearing ‘unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’” Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting 28 U.S.C. § 2255(b)).

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