United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITIONER'S MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE (DOCKET NO.
TIMOTHY S. HILLMAN DISTRICT JUDGE
Rodriguez (“Petitioner”) moves this Court,
pursuant to 28 U.S.C. § 2255, to vacate, set aside or
correct the 63-month sentence imposed by this Court on
December 7, 2015. Petitioner contends that he received
ineffective assistance of counsel because his attorney (1)
advised him to plead guilty to the charge of being a felon in
possession of a firearm, and (2) because his attorney failed
to object to the drug quantities attributed to him in the
Pre-Sentence Investigation Report (“PSR”). For
the reasons below, Petitioner's motion (Docket No. 76) is
Factual Background 
1, 2013, a witness cooperating with the Drug Enforcement
Administration (“CW”) exchanged several phone
calls with Petitioner, which culminated in an agreement that
Petitioner would sell the CW 20 grams of crack cocaine for
$1, 000. An undercover officer (“UC”) drove the
CW to 101 Mechanic Street in Leominster where Petitioner and
an unidentified male called Menor sold 18.6 grams of cocaine
base to the CW.
16, 2013, agents provided the CW with recording equipment and
$1, 400 in buy money. Agents then instructed the CW to go to
101 Mechanic Street to buy drugs from Petitioner. Petitioner
sold the CW 15.3 grams of cocaine base for $900.
23, 2013, Petitioner called the CW to ask whether the CW was
“looking for anything.” Petitioner agreed to sell
the CW half an ounce of crack cocaine for $700. The CW then
walked to 101 Mechanic Street and met with Menor, who
proceeded to sell 12.6 grams of cocaine base to the CW.
30, 2013, the CW spoke on the phone with Petitioner, who
agreed to sell an ounce of crack cocaine to the CW. The UC
then drove the CW to 101 Mechanic Street. Agents installed
audio and video recording devices on both the CW and UC. The
CW and UC encountered Petitioner and Menor in the rear
parking lot. Petitioner then directed the CW and UC to a
cellar across the street at 96 Mechanic Street where
Petitioner sold 27.5 grams of cocaine base to the UC for $1,
September 13, 2013, the CW and the UC drove to 101 Mechanic
Street to buy more crack cocaine from
Petitioner. A male believed to be co-defendant Mr.
Alicea-Romero's brother greeted the two men in the
parking lot. Subsequently, Alicea-Romero emerged from the
house and joined the men in the parking lot. The CW informed
Alicea-Romero that he wanted to buy an ounce of crack cocaine
from Petitioner. Alicea-Romero told the CW that he believed
Petitioner might have half an ounce of crack cocaine for
$790. The men then went to a second-floor porch where
Alicea-Romero sold the UC 12.7 grams of cocaine base for
records obtained by investigators revealed a series of nine
phone calls between Alicea-Romero and Petitioner in the ten
minutes before the sale, and one phone call from
Alicea-Romero to Petitioner about one and a half minutes
after the sale.
October 2, 2013, the CW placed a recorded call to Petitioner
and said “his cousin” (the UC) would be calling
to buy a half ounce of crack cocaine. Minutes later, the CW
received several calls from Alicea-Romero that he was
instructed not to answer. The UC then made three recorded
calls to Petitioner that were not answered. Minutes later,
however, Alicea-Romero called the UC. That call was recorded,
and Alicea-Romero and the UC agreed to meet at 101 Mechanic
Street. The two men met in the rear parking lot of 101
Mechanic Street and the UC then followed Alicea-Romero to a
second-floor landing inside the building. Alicea-Romero then
sold the UC 26.5 grams of cocaine base in exchange for $1,
toll records revealed Petitioner called Alicea-Romero
immediately after the call from the CW. In addition,
Petitioner called Alicea-Romero immediately before
Alicea-Romero called the UC. Finally, Alicea-Romero called
Petitioner immediately after the sale.
October 16, 2013, the CW contacted Petitioner to ask if he
had a 9 mm gun to sell. Petitioner informed the CW that he
had sold the 9 mm, but that he had a .45 caliber handgun that
he was willing to sell for $650. The CW told Petitioner that
he was looking for a smaller gun, but that his cousin, the
UC, might be interest in the .45 caliber.
next day, the CW confirmed the deal with Petitioner during a
recorded phone call. Petitioner instructed the CW and UC to
meet him at 31 Howard Street and met the two men outside.
Petitioner then brought the CW and UC into the kitchen of the
second-floor apartment were Alicea-Romero and another male
introduced as Chuletta were present.
after, Chuletta left the kitchen and returned moments later
carrying a bag. He removed a .45 caliber handgun that was
wrapped in a white shirt and handed the gun to Petitioner.
Petitioner handled the gun, inspected it, and commented that
it was cold from being outside. He then placed the gun on the
table for the UC to examine. The UC provided $650 to
Petitioner and then placed the gun into his backpack.
then handed Petitioner a 9 mm that Peittioner examined and
then showed to the UC. When the UC asked if Petitioner would
be willing to sell the 9 mm as well, Petitioner refused,
explaining, “any plastic guns they can get they want to
December 17, 2014, a grand jury issued a nine-count
indictment charging Petitioner and Alicea-Romero with
conspiracy to possess with intent to distribute and to
distribute cocaine base in violation of 21 U.S.C. § 846.
The indictment alleged that the conspiracy involved 28 or
more grams of cocaine base and specifically attributed that
amount to Petitioner. 21 U.S.C. § 841(b)(1)(B). The
indictment further charged Petitioner and Alicea-Romero with
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), and charged Rodriguez individually with
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1).
January 20, 2015, Petitioner was arrested and held pending
trial. On August 31, 2015, Petitioner pled guilty to the
charges in the indictment without a plea agreement.
November 2, 2015, the Probation Office circulated the initial
PSR, which attributed 116.4 grams of crack cocaine to
Petitioner. Petitioner's counsel objected to the criminal
history calculation in the report but not the quantity of
cocaine attributed to Petitioner. On November 30, 2015, the
Probation Office issued the final PSR, which determined
Petitioner had a total offense level of 24 and a criminal
history category of III, which resulted in a guideline range
of 63-78 months.
December 7, 2015, this Court also found Petitioner's
guideline range was 63-78 months and sentenced him to 63
months in prison followed by 4 years of supervised release.