Suarez v. United States 11-CV-098-SM 4/29/11 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Alnardo Suarez, Petitioner
v. Case No. ll-cv-98-SM Opinion No. 2011 DNH 070 United States of America, Government
O R D E R
Petitioner was convicted, consistent with his guilty pleas,
of four drug offenses.1 He entered into a "binding" plea
agreement with the government (Fed. R. Cr. P. 11(c)(1)(C)) in
which he stipulated that a sentence to 150 months in prison was
appropriate. That stipulated sentence reflected an agreement by
the government to drop a firearms charge that, if proven or
admitted, would have resulted in imposition of a mandatory
minimum and consecutive five year prison sentence, resulting in a
mandatory minimum total sentence of fifteen years (180 months).
Petitioner's convictions and sentence were affirmed by the court
of appeals on June 10, 2010. United States v. Suarez, No. 09-
2505 (1st Cir. June 10, 2010).
1 Possession with intent to distribute five or more grams of cocaine base (12 U.S.C. § 841(a) (1)); possession with intent to distribute five hundred or more grams of cocaine (21 U.S.C. § 841(a)(1)); possession with intent to distribute marijuana (21 U.S.C. § 841(a)(1)); and conspiracy to distribute more than fifty grams of cocaine base (21 U.S.C. § 841(a)(1)). Petitioner now seeks relief under the provisions of 28
U.S.C. § 2255. He asserts separate claims of ineffective
assistance of counsel during the plea phase, sentencing phase,
and on appeal. He also says the court erred at sentencing when
it denied his motion for substitute counsel and failed to give
him notice of a potential upward departure under the sentencing
guidelines (to impose the agreed upon sentence).
Petitioner's basic complaint is that his defense counsel
should have accurately predicted that the Fair Sentencing Act of
2010 would pass, but its more lenient sentencing provisions for
crack cocaine offenses would not be retroactively applicable to
his case.2 Or, stated somewhat differently, he claims that
defense counsel should not have led him to believe that the Act
would pass and he would benefit from its provisions.
When a petitioner claims ineffective assistance of counsel
with respect to a guilty plea, he must show that he was
2 Earlier, petitioner filed a motion in his underlying criminal case for modification of his term of imprisonment. United States v. Suarez, No. 08-cr-l61-02-SM, (document no. 51). He sought relief under the Fair Sentencing Act, but the court denied the motion on grounds that his conviction and sentence were final before the Act became effective, and the Act did not have retroactive effect. JCd. (document no. 54), citing, inter alia. United States v. Douglas, F. Supp. 2d ____ , 2010 WL 4260221, at *3 (D. Me. 2010); United States v. Bell, No. 09-3908, 2010 WL 4103700, at * 10 (7th Cir. Oct. 20, 2010) . That motion was not treated as a § 2255 petition.
2 materially prejudiced by counsel's deficient performance, in
that, had he been properly informed, he would not have pled
guilty and would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985); see also Premo v. Moore, ___
U.S. ____, 131 S. C t . 733 (2011). Petitioner does not explicitly
make that assertion of prejudice, but, in any event, the petition
and exhibits do not provide any basis upon which to find either
ineffective assistance or resulting prejudice.
The petition and exhibits demonstrate that, at most, and as
petitioner seemingly concedes, defense counsel expressed his
"optimism" that the crack cocaine sentencing provisions would be
modified by Congress. Counsel, however, made his view clear (at
least in post-sentencing correspondence) that "until Congress
changes the crack law and reduces the minimum mandatory sentence
for 50 gram crack cases and makes that reduction retroactive,
there is no argument for a sentence below the minimum mandatory."
Petition, Exhibit 3 (emphasis added). Counsel expressed similar
views at the sentencing hearing, before sentence was imposed.
Transcript, October 29, 2009, 5. 5-12. Counsel, of course, could
not have given any information to petitioner about future
congressional action beyond his own opinion about what might
happen, given the bills pending before the Congress.
3 While I recognize, as did Judge Hornby in United States v.
Butterworth, 2010 WL 4362859 (D. Me, Oct. 27, 2010), that
petitioner, of course, thinks it unfair that, because his
sentence was imposed and became final before the Fair Sentencing
Act became law, he is required to serve a harsher sentence than
would likely be imposed now for the same conduct. As noted in
Butterworth, however, the Fair Sentencing Act was not made
retroactively applicable to petitioner's case. "[T]hat is a
decision that Congress has made and it is not for [judges]to
change." Id.
With respect to the merits, petitioner cannot credibly
assert that defense counsel should have accurately predicted
future congressional action, or that counsel purported to do so,
or that petitioner could have reasonably relied upon such a
prediction if it was made (i.e., that retroactive sentencing
relief would be forthcoming). Nor can he credibly assert that he
would not have pled guilty, and would have insisted upon going to
trial, had defense counsel predicted, say, that no statutory
relief would be forthcoming with respect to crack sentences.
The evidence against petitioner was compelling. Had the
government pursued the firearms charge, rather than dropping it
in exchange for petitioner's guilty pleas, and had petitioner
4 either admitted the offense or been convicted at trial (a highly
likely outcome), then he would have been facing a minimum
mandatory sentence of 15 years, or two and one-half years more
than the agreed upon sentence. As the prosecutor made clear at
sentencing, absent the negotiated plea agreement, that is the
course the government would have followed.
When it comes to mandatory minimum drug sentences, and
strong proof of guilt, prosecutors effectively call the
sentencing tune — judges have no effective control over the
outcome other than perhaps the ability to impose a sentence more
severe than that which the government is willing to accept. In
this case, that is precisely the situation petitioner faced,
given that he face charges that carried mandatory minimum
sentences. Agreeing to the mid-point (12.5 years) between the
applicable mandatory minimum (10 years) and what would have been
the mandatory minimum sentence (15 years), had the prosecutor
chosen to pursue the firearms charge, was a rational and
reasonable compromise for petitioner to make. In reality, he had
no other choice — the realistic options were 150 months in
prison, or 180 months in prison; 150 months, the least the
prosecutor would accept, is less.
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Suarez v. United States 11-CV-098-SM 4/29/11 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Alnardo Suarez, Petitioner
v. Case No. ll-cv-98-SM Opinion No. 2011 DNH 070 United States of America, Government
O R D E R
Petitioner was convicted, consistent with his guilty pleas,
of four drug offenses.1 He entered into a "binding" plea
agreement with the government (Fed. R. Cr. P. 11(c)(1)(C)) in
which he stipulated that a sentence to 150 months in prison was
appropriate. That stipulated sentence reflected an agreement by
the government to drop a firearms charge that, if proven or
admitted, would have resulted in imposition of a mandatory
minimum and consecutive five year prison sentence, resulting in a
mandatory minimum total sentence of fifteen years (180 months).
Petitioner's convictions and sentence were affirmed by the court
of appeals on June 10, 2010. United States v. Suarez, No. 09-
2505 (1st Cir. June 10, 2010).
1 Possession with intent to distribute five or more grams of cocaine base (12 U.S.C. § 841(a) (1)); possession with intent to distribute five hundred or more grams of cocaine (21 U.S.C. § 841(a)(1)); possession with intent to distribute marijuana (21 U.S.C. § 841(a)(1)); and conspiracy to distribute more than fifty grams of cocaine base (21 U.S.C. § 841(a)(1)). Petitioner now seeks relief under the provisions of 28
U.S.C. § 2255. He asserts separate claims of ineffective
assistance of counsel during the plea phase, sentencing phase,
and on appeal. He also says the court erred at sentencing when
it denied his motion for substitute counsel and failed to give
him notice of a potential upward departure under the sentencing
guidelines (to impose the agreed upon sentence).
Petitioner's basic complaint is that his defense counsel
should have accurately predicted that the Fair Sentencing Act of
2010 would pass, but its more lenient sentencing provisions for
crack cocaine offenses would not be retroactively applicable to
his case.2 Or, stated somewhat differently, he claims that
defense counsel should not have led him to believe that the Act
would pass and he would benefit from its provisions.
When a petitioner claims ineffective assistance of counsel
with respect to a guilty plea, he must show that he was
2 Earlier, petitioner filed a motion in his underlying criminal case for modification of his term of imprisonment. United States v. Suarez, No. 08-cr-l61-02-SM, (document no. 51). He sought relief under the Fair Sentencing Act, but the court denied the motion on grounds that his conviction and sentence were final before the Act became effective, and the Act did not have retroactive effect. JCd. (document no. 54), citing, inter alia. United States v. Douglas, F. Supp. 2d ____ , 2010 WL 4260221, at *3 (D. Me. 2010); United States v. Bell, No. 09-3908, 2010 WL 4103700, at * 10 (7th Cir. Oct. 20, 2010) . That motion was not treated as a § 2255 petition.
2 materially prejudiced by counsel's deficient performance, in
that, had he been properly informed, he would not have pled
guilty and would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985); see also Premo v. Moore, ___
U.S. ____, 131 S. C t . 733 (2011). Petitioner does not explicitly
make that assertion of prejudice, but, in any event, the petition
and exhibits do not provide any basis upon which to find either
ineffective assistance or resulting prejudice.
The petition and exhibits demonstrate that, at most, and as
petitioner seemingly concedes, defense counsel expressed his
"optimism" that the crack cocaine sentencing provisions would be
modified by Congress. Counsel, however, made his view clear (at
least in post-sentencing correspondence) that "until Congress
changes the crack law and reduces the minimum mandatory sentence
for 50 gram crack cases and makes that reduction retroactive,
there is no argument for a sentence below the minimum mandatory."
Petition, Exhibit 3 (emphasis added). Counsel expressed similar
views at the sentencing hearing, before sentence was imposed.
Transcript, October 29, 2009, 5. 5-12. Counsel, of course, could
not have given any information to petitioner about future
congressional action beyond his own opinion about what might
happen, given the bills pending before the Congress.
3 While I recognize, as did Judge Hornby in United States v.
Butterworth, 2010 WL 4362859 (D. Me, Oct. 27, 2010), that
petitioner, of course, thinks it unfair that, because his
sentence was imposed and became final before the Fair Sentencing
Act became law, he is required to serve a harsher sentence than
would likely be imposed now for the same conduct. As noted in
Butterworth, however, the Fair Sentencing Act was not made
retroactively applicable to petitioner's case. "[T]hat is a
decision that Congress has made and it is not for [judges]to
change." Id.
With respect to the merits, petitioner cannot credibly
assert that defense counsel should have accurately predicted
future congressional action, or that counsel purported to do so,
or that petitioner could have reasonably relied upon such a
prediction if it was made (i.e., that retroactive sentencing
relief would be forthcoming). Nor can he credibly assert that he
would not have pled guilty, and would have insisted upon going to
trial, had defense counsel predicted, say, that no statutory
relief would be forthcoming with respect to crack sentences.
The evidence against petitioner was compelling. Had the
government pursued the firearms charge, rather than dropping it
in exchange for petitioner's guilty pleas, and had petitioner
4 either admitted the offense or been convicted at trial (a highly
likely outcome), then he would have been facing a minimum
mandatory sentence of 15 years, or two and one-half years more
than the agreed upon sentence. As the prosecutor made clear at
sentencing, absent the negotiated plea agreement, that is the
course the government would have followed.
When it comes to mandatory minimum drug sentences, and
strong proof of guilt, prosecutors effectively call the
sentencing tune — judges have no effective control over the
outcome other than perhaps the ability to impose a sentence more
severe than that which the government is willing to accept. In
this case, that is precisely the situation petitioner faced,
given that he face charges that carried mandatory minimum
sentences. Agreeing to the mid-point (12.5 years) between the
applicable mandatory minimum (10 years) and what would have been
the mandatory minimum sentence (15 years), had the prosecutor
chosen to pursue the firearms charge, was a rational and
reasonable compromise for petitioner to make. In reality, he had
no other choice — the realistic options were 150 months in
prison, or 180 months in prison; 150 months, the least the
prosecutor would accept, is less. Petitioner has not shown, and
cannot reasonably show, that he would have insisted on going to
trial under these circumstances - i.e., that he would have
5 knowingly exposed himself to a near-certain 180 months in prison,
if defense counsel had not been optimistic about the possibility
of future legislative relief from which he might benefit.
The other issues petitioner raises (but that were not raised
on direct appeal) are also without merit. His motion for
substitute counsel before sentencing was denied because
inadequate supporting grounds were offered, and appointed counsel
provided fully competent representation. Notice to petitioner of
an "upward departure" potential was irrelevant and unnecessary as
petitioner himself stipulated to, and asked for, the 150 month
sentence - a sentence he knew was above the applicable guideline
range, but below what could have been the guideline range absent
the plea agreement. The court's acceptance of the plea agreement
petitioner knowingly, voluntarily, and intelligently entered
into, and its imposition of a sentence consistent with that
agreement, did not constitute error in any respect, nor did
petitioner suffer any prejudice as a result. Finally, with
respect to defense counsel's appellate representation, no
meritorious issues were raised on direct appeal because there
were none to raise. After independently reviewing the record,
the court of appeals also found that there were no meritorious
issues.
6 Conclusion
The petition is denied. The court declines to issue a
certificate of appealability. Rule 1 1 (a), Rules Governing
Section 2255 Proceedings.
SO ORDERED.
S/ceven J/ McAuliffe 'Chief Judge
April 2 9, 2 011
cc: Alnardo Suarez, pro se Seth R. Aframe, AUSA