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United States v. Bernabe

United States District Court, D. Massachusetts

June 1, 2017

UNITED STATES OF AMERICA,
v.
JUAN PABLO BERNABE, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Defendant Juan Pablo Bernabe (“Bernabe”) has filed a pro se motion to vacate and correct his sentence pursuant to 28 U.S.C. § 2255, alleging he was denied effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution. D. 838. The government opposes this motion. D. 848. For the reasons discussed below, the Court DENIES Bernabe's § 2255 motion.

         II. Standard of Review

         A prisoner may seek post-conviction relief under § 2255 if his sentence “(1) was imposed in violation of the Constitution; (2) was imposed by a court that lacked jurisdiction; (3) exceeded the statutory maximum; or (4) was otherwise subject to collateral attack.” David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). It is the prisoner's burden to make out a claim for such relief. Id.

         III. Factual and Procedural Background

         A. Investigation, Arrest and Plea

         On November 29, 2012, Bernabe and ten co-defendants were indicted on various drug charges. D. 3. A superseding indictment followed on April 17, 2014. D. 294. Bernabe was arrested on December 4, 2012 and pleaded guilty to the two charges against him on June 4, 2014. D. 787 at 20-21. The charges to which Bernabe pled guilty were conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 846 (“Count 1”) and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (“Count 3”). D. 399 ¶ 1. The charges stemmed from a long-term investigation that included wiretaps of phones, seizure of cocaine, physical surveillance and execution of search warrants. D. 585 at 1.

         The following facts are taken from the Presentence Report (“PSR”) and the government's sentencing memorandum. D. 585. Federal agents began their investigation of Rahdames Pena (“Pena”) in 2007 and identified other participants in a drug trafficking organization, including Bernabe. PSR ¶ 9. The investigation revealed a cocaine trafficking operation in which kilogram-quantities of cocaine were transported from the Dominican Republic and then distributed in New York and Massachusetts. PSR ¶ 11. In connection with a traffic stop involving one of the co-defendants, Salem police officers uncovered a drug ledger that included entries relating to Bernabe (referenced as “Palbin”), with one entry designating one kilogram of cocaine to Bernabe. PSR ¶ 14, 17. Another drug ledger found in the search of an office affiliated with the operation recorded instances where Bernabe owed and paid money to Pena. PSR ¶ 22. Overall, the investigation revealed a large-scale cocaine distribution operation with at least five, but not more than fifteen, kilograms attributable to Bernabe. PSR ¶ 53; D. 585 at 2.

         On June 4, 2014, Bernabe pleaded guilty to Counts 1 and 3. D. 401. In his plea agreement with the government (the “Agreement”), the government recommended Bernabe's base offense level be 32 because at least five but not more than fifteen kilograms of cocaine were attributable to Bernabe. D. 399 ¶ 3. For the purposes of sentencing, however, Bernabe “reserve[d] the right to argue that fewer than 5 kilograms [were] attributable to him.” D. 399 ¶ 3. The government further recommended that the offense level be reduced by three levels because Bernabe qualified for a reduction based on his acceptance of responsibility. Id. Finally, the government recommended Bernabe's offense level be reduced by two additional levels in light of a then pending amendment to the USSG Drug Quantity Table, and partially in exchange for Bernabe's appeal waiver, which is further discussed below. Id. ¶ 4.

         The Agreement also included an appeal waiver. Id. ¶ 6. Specifically, Bernabe waived (1) “the right to challenge both his conviction and his sentence . . . on direct appeal” and (2) that he “may be able to argue in a future proceeding (collateral or otherwise), such as pursuant to a motion under 28 U.S.C. § 2255” that his sentence should be set aside or reduced. Id. ¶¶ 6(a), 6(b), 6(d). Bernabe, however, reserved the right to claim that his “lawyer was ineffective in connection with the negotiation of this plea agreement or the entry of [the] guilty plea.” Id. ¶ 6(f).

         During the change of plea hearing on June 4, 2014, Bernabe indicated that he “fully discussed the facts and circumstances of [his] case with [his] counsel.” D. 787 at 7. Bernabe further indicated that he was “fully satisfied with the counsel, representation, and advice” given to him by counsel. Id. at 8. During this hearing, the Court explained that if the case had proceeded to trial the government would have had to prove every element of the counts against Bernabe, including the government's assertions of Bernabe's role in the organization. Id. at 17-18. The government then explained what they would have sought to prove at trial, id., including Bernabe's role in the conspiracy and the amount of cocaine attributable to him. Defense counsel stated that Bernabe agreed with the government's characterization of Bernabe's role in the conspiracy, but also indicated that Bernabe reserved argument regarding the quantity of cocaine attributed to Bernabe for sentencing. D. 787 at 19; D. 399 ¶ 3. During the plea colloquy, the Court also explained to Bernabe that under the terms of the Agreement he waived certain rights to appeal the conviction and sentence. D. 787 at 14-15. Bernabe stated that he understood. Id. At the close of the hearing, the Court accepted Bernabe's guilty plea. Id. at 21.

         B. Sentencing Report and Hearing

         On October 23, 2014, the Court held Bernabe's sentencing hearing. D. 582; D. 788 at 36. Probation determined that Bernabe was responsible for five to fifteen kilograms of cocaine, which rendered a base offense level of 32. PSR ¶ 54. The PSR determined that the total offense level (with acceptance of responsibility) was 29 ...


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