United States v. Cordoba-Bermudez

4 F. Supp. 3d 635, 2014 U.S. Dist. LEXIS 37404, 2014 WL 1047033
CourtDistrict Court, S.D. New York
DecidedMarch 19, 2014
DocketNo. 08 Cr. 1290(DC)
StatusPublished

This text of 4 F. Supp. 3d 635 (United States v. Cordoba-Bermudez) 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
United States v. Cordoba-Bermudez, 4 F. Supp. 3d 635, 2014 U.S. Dist. LEXIS 37404, 2014 WL 1047033 (S.D.N.Y. 2014).

Opinion

OPINION

CHIN, Circuit Judge.

On August 10, 2010, defendant Juanito Cordoba-Bermudez pled guilty to conspiracy to provide material support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B. On June 1, 2011, I sentenced him principally to 180 months’ incarceration. Cordoba-Bermudez appealed the judgment of conviction, and the Second Circuit affirmed on August 29, 2012. United States v. Mora-Pestana, 496 Fed.Appx. 98, 100 (2d Cir.2012) (summary order).

Proceeding pro se, Cordoba-Bermudez moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the basis that (1) the Court improperly participated in plea discussions; (2) after Cordoba-Bermudez pled guilty, the Government made factual assertions that he had not admitted; (3) the Court erred in instructing Cordoba-Bermudez that he would not be able to later withdraw his guilty plea; and (4) the Court erred in applying a terrorism enhancement at sentencing.1

BACKGROUND

A. The Facts

Between at least October 2007 and up to February 2009, Cordoba-Bermudez and others conspired to provide “material support or resources” to the Fuerzas Armadas Revolucionarias de Colombia (the “FARC”). (PSR ¶ 2). The FARC was designated as a foreign terrorist organization on October 8, 1997 by the United States Secretary of State. (PSR ¶ 2).

Cordoba-Bermudez organized a smuggling group that delivered narcotics in exchange for supplies, which were then transported to the FARC by boat. (PSR ¶ 11). Cordoba-Bermudez communicated repeatedly with a high-ranking member of the FARC (PSR ¶ 10), and discussed the procurement and transport of cocaine, weapons, military uniforms, and other supplies. (PSR ¶¶ 13-16; see also Ind’t ¶ 8). Cordoba-Bermudez was paid $4,500 in ex[638]*638change for five boat trips to transport these supplies to the FARC. (PSR ¶ 31).

B. Prior Proceedings

1. The Indictment

On February 5, 2009, Cordoba-Bermu-dez was indicted on one count of conspiracy to provide material support or resources to a foreign terrorist organization under 18 U.S.C. § 2339B. (Ind’t ¶ 7; see also PSR ¶ 2).

2. The Plea Allocution

On August 10, 2010, Cordoba-Bermudez pled guilty to the single conspiracy count. (Plea Tr. 28:6). In a letter submitted pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir.1991), the Government set forth its calculation under the Sentencing Guidelines, placing Cordoba-Bermudez at an offense level of 37 and in Criminal History Category VI. (PSR ¶ 4). This calculation was based on U.S.S.G. § 2M5.3(a) for a base offense level of 26; the addition of two levels for the use of firearms during the offense pursuant to U.S.S.G. § 2M5.3(b)(l)(B); the addition of 12 levels because the offense was intended to promote a federal crime of terrorism pursuant to U.S.S.G. § 3A1.4(a); a reduction of two points for an acceptance of responsibility through a guilty plea under U.S.S.G. § 3El.l(a); and a reduction of one point for providing timely notice of the intention to plead guilty under U.S.S.G. § 3El.l(b). (Id.). The Guidelines calculation resulted in a range of 360 months to life imprisonment. The statutory maximum for the offense of conviction, however, was 180 months’ imprisonment, pursuant to 18 U.S.C. § 2339B. (Id.).

During the plea hearing, Cordoba-Ber-mudez indicated that he had fully discussed the case, the indictment, the Guidelines, and the Pimentel letter with his attorneys. (Plea Tr. 5:6-9, 7:14-21,15:4-6, 13:4-18). The Court instructed him on and he acknowledged that he understood the advisory nature of the Guidelines and his inability to withdraw a guilty plea subsequent to receiving his sentence from the Court. (Plea Tr. 15:7-9,16:15-22).

3. The Sentencing

Cordoba-Bermudez appeared for sentencing on June 1, 2011. He submitted a sentencing letter arguing that the 18 U.S.C. § 3553(a) factors supported a sentence below the 15-year statutory maximum because (1) the U.S.S.G. § 3A1.4 enhancement inflated Cordoba-Bermudez’s advisory guideline to a level disproportionately related to his culpability; (2) he suffered and continued to suffer from psychological trauma and post-traumatic stress disorder; and (3) it would create an unfair disparity to impose a sentence on Cordoba-Bermudez, as a transporter, that members of the FARC could receive. (App. Br. 5).

The PSR adopted the Guidelines range as calculated in the Pimentel letter. (PSR ¶ 4). I adopted the factual recitations and the Guidelines calculation set forth in the PSR. (Sent. Tr. 4:7-8). I then sentenced Cordoba-Bermudez to a term of imprisonment of 180 months, followed by a period of supervised release of three years, and a mandatory special assessment of $100. (Sent. Tr. 37:1-7). Judgment was entered on June 6, 2011.

4. The Direct Appeal

On June 13, 2011, represented by counsel, Cordoba-Bermudez appealed his sentence and conviction to the Second Circuit. Cordoba-Bermudez argued that (1) the District Court erred procedurally by failing to consider the personal factors enumerated in 18 U.S.C. § 3553(a); (2) the sentence was substantively unreasonable [639]*639in light of these factors; and (3) the District Court failed to explain how the sentence fulfilled the goals of the Sentencing Reform Act. (App. Br. 25); see also Mora-Pestana, 496 Fed.Appx. at 99-100. The Second Circuit rejected each of these arguments and affirmed both the sentence and the conviction. See Mora-Pestana, 496 Fed.Appx. at 100.

5. The Instant § 2255 Motion

On August 9, 2013, proceeding pro se, Cordoba-Bermudez filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

DISCUSSION

Cordoba-Bermudez argues that (1) the Court improperly participated in plea discussions during the plea hearing; (2) the Government offered factual assertions at sentencing that he had not admitted; (3) the Court erred in instructing Cordoba-Bermudez at the plea allocution that he would not be able to withdraw his guilty plea after he was sentenced; and (4) the Court erred in applying a terrorism enhancement at sentencing.

First, I conclude that all of Cordoba-Bermudez’s claims are procedurally barred.

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Bluebook (online)
4 F. Supp. 3d 635, 2014 U.S. Dist. LEXIS 37404, 2014 WL 1047033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cordoba-bermudez-nysd-2014.