Court: District Court, E.D. New York; December 12, 2011; Federal District Court
Eduardo Osorio Viera filed a petition for a writ of habeas corpus under 28 U.S.C. § 2255, contesting his sentence for possession of cocaine with intent to distribute. Viera was arrested on October 13, 2008, at JFK Airport after DEA agents found cocaine in his luggage, which he admitted was his and had been packed by him. He agreed to transport the drugs for $2,500 and a second payment upon delivery, although he did not know the recipient. Viera was indicted for possession of over 500 grams of cocaine, facing a mandatory minimum of five years. He accepted a plea deal for a lesser offense without a minimum term and pled guilty on March 20, 2009. As part of the plea agreement, he waived his right to appeal or challenge his sentence if it was 51 months or less.
A presentence report (PSR) assigned Viera a base offense level of 28 based on the cocaine's weight, with two downward adjustments: a 4-point reduction for his limited role and a 3-point reduction for acceptance of responsibility, resulting in an adjusted offense level of 21. Viera was deemed ineligible for a "safety valve" reduction due to not fully disclosing information about his offense. The PSR assigned him a criminal history category of I, given his lack of prior convictions, establishing an advisory Guidelines range of 37 to 46 months, which Viera did not contest. Ultimately, the court denied his habeas corpus petition based on these findings.
On October 16, 2009, the Court sentenced Viera to 37 months of imprisonment and three years of supervised release, in line with the Presentence Report (PSR). Viera did not appeal the judgment but filed a 2255 petition in August 2010 to challenge his sentence. In his pro se petition, Viera raises two main arguments: first, he claims his Guidelines range was miscalculated because he was held responsible for 3 kilograms of cocaine under 21 U.S.C. 841(b)(1)(B)(ii) instead of 21 U.S.C. 841(b)(1)(C), which he argues would have resulted in a lower offense level and sentencing range; second, he contends he qualified for a two-point "safety valve" reduction. However, both claims are barred by his plea agreement, in which he waived the right to file a 2255 petition if sentenced to 51 months or less, which applies to his case. Additionally, Viera has not provided any evidence that his waiver was not made knowingly and voluntarily. His attempt to argue the enforceability of the waiver based on alleged defects in the sentencing hearing is unsupported by fact or law and directly contradicts statements from the sentencing transcript that outline his rights to appeal. Overall, the petition lacks merit and is barred by the waiver in the plea agreement.
Viera was informed during his plea allocution that by pleading guilty, he waived his right to appeal the verdict and sentence, specifically giving up the right to challenge any sentence of 51 months or less as per his plea agreement. His claim that the court did not enforce this waiver is unfounded, as the record confirms he validly waived his right to contest his conviction. Additionally, Viera's claims are barred because he failed to file a direct appeal, which generally prohibits collateral challenges under § 2255 unless he demonstrates cause for his procedural default or actual innocence. Viera does not present any evidence of cause for his failure to appeal nor can he claim actual innocence. Even if his claims were not waived or barred, they lack merit. He contends that his sentencing guidelines were improperly calculated regarding the type and weight of drugs; however, the guidelines would yield the same range regardless of the statute under which he was convicted. Viera does not dispute the drug type or weight, negating any substantive basis for relief. Lastly, he claims eligibility for a “safety valve” reduction, but must satisfy specific criteria to qualify, and the details of his case regarding this reduction are contested.
Viera challenges the fifth criterion for safety valve relief, which mandates that a defendant must provide all relevant information to the Government before sentencing. He fails to demonstrate compliance with this requirement and merely references two cases, United States v. Schreiber and United States v. Jeffers, which assert that a complete and truthful proffer at sentencing suffices for compliance, even if prior dishonesty occurred. However, the Government asserted during sentencing that Viera had not truthfully disclosed all information about the offense, and despite his implied disagreement, he did not provide evidence to counter this claim. The court emphasized that the defendant bears the burden of proving compliance to qualify for safety valve benefits. Consequently, Viera’s petition for a writ of habeas corpus is dismissed, and no certificate of appealability is granted, as he has not demonstrated a substantial constitutional rights violation. He retains the right to seek such a certificate from the Court of Appeals for the Second Circuit. The court finds no basis for appointing counsel for Viera, as the records show he is not entitled to relief and no plausible claims of ineffective assistance of counsel arise from the case. Furthermore, there is no indication that exceptions to appellate waiver rules apply here.
A waiver may be deemed unenforceable under specific conditions, including sentences based on impermissible biases, breaches of plea agreements, or when a court fails to provide a rationale for sentencing, which could warrant judicial review via mandamus. Claims of ineffective assistance of trial counsel are typically not suitable for direct appeal and are more appropriately raised in 2255 proceedings. In the case of Viera, even if he had alleged sufficient facts to support an ineffective assistance claim, it would be barred by the appellate waiver in his plea agreement. The government's opposition highlighted Viera's lack of cooperation with law enforcement, dishonesty regarding the transaction, inconsistencies in his account of obtaining cocaine, and the implausibility of his stated purpose for travel. Viera did not present facts to counter these assertions, undermining any potential ineffective assistance claim related to the denial of a safety valve reduction. Furthermore, Viera's appellate waiver concerning the computation of his Guidelines range would preclude an ineffective assistance claim, even if trial counsel erred, as the plea agreement was determined to be knowing and voluntary. Upholding the waiver is essential to preserve the integrity of the plea bargaining process, particularly when the appeal waiver is established as voluntary and the ineffective assistance claim lacks merit.
