United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITION FOR A WRIT OF HABEAS
Dennis Saylor IV United States District Judge
a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255. Petitioner Miguel
Fernandes pleaded guilty on January 7, 2016, to conspiracy to
possess cocaine with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), and 846;
possession of marijuana with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(vii); and conspiracy to launder monetary
instruments in violation of 18 U.S.C. § 1956(h). He was
sentenced to a 144-month term of incarceration followed by a
four-year term of supervised release.
has filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, alleging that the
government breached a contractual obligation pursuant to the
plea agreement when it objected to an additional one-point
downward departure under the sentencing guidelines for
acceptance of responsibility. Petitioner also alleges
ineffective assistance of counsel in violation of the Sixth
Amendment due to trial counsel's alleged (1) failure to
advise him correctly as to the sentencing guideline for
acceptance of responsibility, U.S.S.G. § 3E1.1(b); (2)
failure to object to the Court's guideline calculation
under § 3E1.1(b); and (3) failure to challenge the
government's improper withholding of a § 3E1.1(b)
motion. For the reasons set forth below, the motion will be
the conviction resulted from a guilty plea, the following
facts are taken from the April 8, 2016 sentencing hearing and
the Presentence Investigation Report (“PSR”),
unless otherwise noted. See United States v.
Connell, 960 F.2d 191, 192-93 (1st Cir. 1992);
United States v. Garcia, 954 F.2d 12, 14 (1st Cir.
the guise of several aliases, for several years Fernandes
sent drugs, including marijuana and cocaine, from California
into Massachusetts via Miracle Mail, a commercial mail
receiving agency. (PSR at ¶¶ 8, 43). He mailed
numerous packages to uninhabited addresses, using foam
insulation to conceal the drugs inside. (Id. at
December 2012, the United States Postal Service (USPS)
intercepted two Priority Mail packages addressed to
fictitious individuals in Middleboro, Massachusetts.
(Id. at ¶¶ 21-22). Co-conspirator Alex
Junior Gomes attempted to retrieve the packages at the USPS
Lakeville Annex. (Id. at ¶¶ 8, 23-25).
After a postal inspector obtained a search warrant, one of
the packages was opened and tests confirmed that the package
contained two kilograms of cocaine. (Id. at ¶
26). The second package was returned to the location from
which it was mailed, a Miracle Mail office in Los Angeles.
(Id. at ¶ 27).
following month, in early January 2013, a postal inspector
spoke on the telephone with a man identifying himself as
“Steven Sanchez” who claimed that the package
returned to Miracle Mail was addressed to his aunt.
(Id. at ¶ 30). “Steven Sanchez”
also claimed that the package containing cocaine, which
postal inspectors had already opened, contained a humidifier
for his aunt. (Id.). DEA Special Agent Carl Rideout
listened to a recording of the conversation and identified
“Steven Sanchez” as Fernandes, whose voice Agent
Rideout had come to recognize during the course of the
investigation. (Id. at ¶ 31). Fernandes's
then-girlfriend, Latresea Chennette, also identified the
voice of “Steven Sanchez” as that of Fernandes.
(Id. at ¶ 32).
addition, packages were mailed from Los Angeles to fictitious
individuals in New Bedford, West Bridgewater, and other towns
in the greater Boston area. (Id. at ¶¶ 34,
38). Gomes was observed on several occasions at these
addresses retrieving the packages. (Id. at ¶
34). Frequently, Gomes would retrieve packages left at the
front of the addresses, place them in his vehicle, and drive
away. (Id. at ¶ 35).
January 27, 2014, search warrants were executed at several
locations in Los Angeles. (Id. at ¶ 40). Police
discovered that Fernandes's storage locker in Los Angeles
contained marijuana with a net weight of 520 kilograms.
(Id. at ¶¶ 8, 40-41). Although pursuing
agents initially lost sight of Fernandes, he was arrested the
following day. (Id. at ¶¶ 1, 40).
along with at least five other co-conspirators, also
conspired to launder drug proceeds. (Id. at ¶
9). Fernandes used several “funnel accounts, ” in
which the account holders allowed Fernandes and his
co-conspirators to make cash deposits and withdrawals.
(Id. at ¶¶ 9-10). The funnel account
holders were paid a small fee for each transaction.
(Id. at ¶ 9). The transactions themselves were
cash deposits in structured amounts under $10, 000, allowing
the conspirators to avoid the CTR reporting requirement.
(Id.). Deposits were often made at Bank of America
branches in Massachusetts and nearby states, and withdrawals
occurred at Bank of America branches in Los Angeles.
(Id. at ¶ 12). In total, there were
approximately 40 Bank of America accounts used in the money
laundering scheme, and several million dollars were
laundered. (Id. at ¶ 10).
example, surveillance video depicted Fernandes and other
co-conspirators making large cash deposits into the accounts
of co-conspirator Kelly McClinton at a Bank of America in
Massachusetts, followed shortly thereafter by large cash
withdrawals from the same accounts at a Bank of America in
Los Angeles. (Id. at ¶ 12-13). Fernandes
himself, under the alias “Sanchez, ” controlled
two bank accounts with balances of over $200, 000 in 2012 and
2013. (Id. at ¶ 45).
The Plea of Guilty
was indicted on January 23, 2014, for conspiracy with intent
to distribute cocaine. (Docket No. 3). A superseding
indictment, adding charges of possession with intent to
distribute marijuana and conspiracy to launder monetary
instruments, was returned on June 26, 2014. (Docket No. 42).
was scheduled to begin on Monday, January 11, 2016. In
accordance with the Court's pretrial order, the
government filed its witness list, exhibit list, proposed
voir dire questions, and motions in limine on
December 29, 2015. The government attorneys presumably
prepared for trial over the holiday period and into the new
year. On January 5, 2016, six days before the start of the
trial, Fernandes requested a plea hearing. (Docket No. 256).
The plea agreement was executed on Thursday, January 7, 2016,
and Fernandes pleaded guilty that day. (Docket Nos. 275 and
the plea agreement, the government agreed to recommend a
two-level downward adjustment to the base offense level under
the sentencing guidelines for acceptance of responsibility.
See U.S.S.G. § 3E1.1(b). The plea agreement did
not indicate that the ...