United States v. Rodriguez

          MEMORANDUM AND ORDER ON PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE (DOCKET NO. 76)

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         Jose 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 denied.

         Background

         1. Factual Background ^[1]

         On July 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.

         On July 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.

         On July 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.

         On July 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, 400.

         On September 13, 2013, the CW and the UC drove to 101 Mechanic Street to buy more crack cocaine from Petitioner.^[2] 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 $790.

         Toll 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.

         On 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, 500.

         Again, 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.

         On 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.

         The 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.

         Shortly 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.

         Chulette 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 keep.”

         2. Procedural History

         On 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).

         On 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.

         On 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.

         On 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.

         Legal ...