United States District Court, District of Vermont
OPINION AND ORDER
WILLIAM K. SESSIONS III DISTRICT COURT JUDGE
Defendant Stephen Aguiar, proceeding pro se, has filed a petition for writ of error coram nobis challenging his 2001 conviction for possession of heroin with intent to distribute. Aguiar contends that his defense attorney misadvised him about the statutory maximum sentence, and that this advice played a significant role in his decision to plead guilty. Although Aguiar has completed his sentence, he claims to be suffering continuing injury because a more recent sentence was enhanced by the 2001 conviction.
The government opposes the petition, arguing that it is untimely and legally unsupported. For the reasons set forth below, the petition is denied.
Aguiar alleges in his petition that he was arrested in Burlington, Vermont on November 6, 2000. In the course of the arrest, law enforcement seized 20.1 grams of heroin and 84.6 grams of powder cocaine. Aguiar admitted in a post-arrest statement that the drugs belonged to him.
On December 7, 2000, a federal grand jury returned a two- count indictment charging Aguiar with possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and possession with intent to distribute a quantity of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Defense counsel allegedly advised Aguiar that he faced a potential sentence of ten years to life on Count One.
The defense subsequently filed a motion to suppress Aguiar’s post-arrest statement. Prior to the suppression hearing, the prosecution communicated to defense counsel that if the hearing went forward, the government would ultimately argue for an obstruction of justice enhancement and oppose any acceptance of responsibility reduction. After relaying this message to his client, defense counsel presented Aguiar with a plea agreement.
The agreement proposed that Aguiar would plead guilty to a single count and be sentenced under Section 841(b)(1)(C) for less than 100 grams of heroin. There would be no statutory minimum, but according to counsel the Court could impose a sentence of up to 30 years in prison and supervised release of no less than six years to life. Aguiar would stipulate to a base offense level of 26 based upon drug quantity, including relevant conduct of 200 grams of heroin and 840 grams of cocaine. Counsel reportedly advised Aguiar that, given the possibility of a life sentence if the case went to trial, he should accept the plea agreement.
Aguiar did offer to plead guilty, but claims that he “vehemenly contested” the drug amount alleged in the plea agreement, and informed the Court at the Rule 11 hearing that the plea deal felt coerced and involuntary. The transcript from the Rule 11 hearing reveals that when the Court asked Aguiar whether anyone had threatened him or forced him in any way to plead guilty, Aguiar responded: “No, sir.” ECF No. 43 at 7. Aguiar did inform the Court that he was entering a guilty plea in order to avoid a charge of obstruction of justice and remain eligible for acceptance of responsibility. The Court made clear that those issues would be decided in a “separate determination, ” and that acceptance of responsibility was not necessarily determined by whether Aguiar had “objected to the introduction of evidence or not.” Id. at 12.
Aguiar further explained to the Court that he had weighed the risks and benefits of a plea, that there was “no question [as] to [his] guilt, ” but that he believed the police were being untruthful about his post-arrest statement and “that there are guidelines that people have to go by.” Id. at 14-15. The Court took a short recess so that Aguiar could again discuss the agreement with his attorney.
When the hearing resumed, defense counsel reiterated that Aguiar remained disturbed about potential police dishonesty. Counsel also conceded that even if the post-arrest statement was suppressed, arguments for suppression of other drug evidence were a “long shot” and that Aguiar was aware of this fact. Id. at 18. When Aguiar asked about how the Court makes credibility determinations, both defense counsel and the Court explained that a totality of circumstances test would be applied. When Aguiar suggested that he take a polygraph test, the Court discussed the admissibility of such a test. The Court then took a second brief recess.
After the second recess, Aguiar informed the Court of his belief that “it’s within my best interests to accept the plea agreement.” Id. at 43. The government provided a proffer of facts to which Aguiar agreed, and the Court accepted the plea. With regard to the government’s threat to oppose acceptance of responsibility if the suppression hearing went forward, the Court noted that in any plea agreement “[b]oth sides give up something and both sides get something in return. So I don’t think that there really is any question about voluntariness here.” Id. at 43. Aguiar was subsequently sentenced to 92 months in prison to be followed by a six-year term of supervised release.
Aguiar now claims that throughout the criminal proceeding, his attorney and the Court assumed that he would be subject to a sentence enhancement under Section 851, when in fact there could be no such enhancement because the government failed to file a Section 851 information. Aguiar further argues that without the required Section 851 information, he was subject to a maximum sentence of 40 years under Section 841(b)(1)(B), and not the life sentence of which his attorney warned. Aguiar also claims that his supervised release would have been capped at three years, and not the six to which he was sentenced. This misinformation from counsel allegedly played a substantial role in Aguiar’s decision to plead guilty.
In 2009, having served fewer than three years of his supervised release on the 2001 sentence, Aguiar was arrested and charged with conspiracy. Because of his arrest, his supervised release was revoked. In 2011, he was convicted of conspiracy and sentenced to 30 years in prison to be followed by 10 years of supervised release. He was also convicted of violating his previous supervised release, and given a concurrent sentence of 36 months. Aguiar claims that his most recent sentence was enhanced by the 2001 conviction under 28 U.S.C. § 851, as well as United States Sentencing Guideline § ...