United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
A STATUS UPDATE AND ADOPTING MAGISTRATE JUDGE'S REPORT
AND RECOMMENDATION (Docs. 648, 660, & 663)
Christina Reiss, District Judge United States District Court.
matter came before the court for a review of the Magistrate
Judge's September 25, 2017 Report and Recommendation
("R & R") (Doc. 660), recommending that the
court dismiss the 28 U.S.C. § 2255 petition filed by
Defendant David Baez Garcia. Defendant seeks a reduction of
his below-Guidelines sentence of 204 months imprisonment
based on his claim of ineffective assistance of counsel.
(Doc. 648.) The government opposes the motion. On August 29,
2016, Defendant's trial attorneys, David J. Williams,
Esq. and Brooks G. McArthur, Esq., filed affidavits
addressing the arguments in Defendant's § 2255
October 17, 2017, Defendant objected to the R & R's
conclusion that he failed to establish that his
attorneys' representation was ineffective on the grounds
that they: (1) provided ineffective advice during plea
negotiations by failing to explain the advantages and
disadvantages of pleading guilty and misleading him as to his
maximum sentence exposure if he was to be convicted at trial;
(2) erroneously failed to object to the calculation of the
Sentencing Guidelines range with respect to drug quantity and
the object of the conspiracy; and (3) insufficiently
investigated the role of Annie Dookhan, a former
Massachusetts State Crime Laboratory chemist, in the testing
of the narcotics attributed to Defendant. Defendant argues
that neither the Magistrate Judge nor the record
"provides evidence of counsel[s'] performance,
" and therefore the court cannot conclude that he failed
to establish his claim of ineffective assistance of counsel.
March 19, 2018, Defendant filed a motion for a status update,
which the government did not oppose. (Doc. 663.) In light of
the court's resolution of the matter, Defendant's
motion for a status update is GRANTED.
is self-represented. The government is represented by
Assistant United States Attorney Nathanael T. Burris.
Factual and Procedural Background.
was charged in a Third Superseding Indictment with conspiring
to distribute five kilograms or more of cocaine and 100 grams
or more of heroin and oxycodone. On September 9, 2015,
Defendant's jury trial began, during which the government
presented extensive evidence of Defendant's role in the
conspiracy, including testimony by DEA special agents, a
United States Customs and Border Protection officer,
Massachusetts and Vermont State Police officers, and Nancy
Brooks, a forensic chemist at the Massachusetts State Police
Crime Laboratory who tested and identified the narcotics
recovered during a traffic stop of a vehicle associated with
Defendant. In addition, multiple co-conspirators and
witnesses testified about Defendant's role in the
September 16, 2015, in the midst of the government's
case, Defendant accepted a plea agreement wherein he agreed
to plead guilty to Count One of the Third Superseding
Indictment charging him with conspiracy to distribute five
kilograms or more of cocaine, and 100 grams or more of heroin
and oxycodone in violation of 21 U.S.C. §§ 841,
846. Pursuant to the plea agreement, Defendant attested that
he understood his guilty plea would result in a ten year
mandatory minimum sentence, with a statutory exposure of up
to a life sentence. The agreement included a stipulation that
the appropriate base offense level for the drug quantity
under the United States Sentencing Guidelines (the
"Guidelines") was level 34. It further stated that
Defendant "acknowledge[d] that in the event that any
estimates or predictions by his attorney (or anyone else) are
erroneous, those erroneous predictions will not provide
grounds for .. . modification of his sentence, or for
appellate or post-conviction relief." (Doc. 580 at 3,
¶ 8.) Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the
parties further agreed that the appropriate term of
imprisonment was 180 to 216 months. Finally, Defendant
attested to his satisfaction with his attorneys'
September 17, 2015, Defendant appeared in court with his
attorneys for a change of plea hearing. At that time, the
court reviewed the plea agreement with Defendant and engaged
in the full colloquy required by Fed. R. Crim. P. 11.
Defendant confirmed that he had read and discussed the entire
plea agreement with his attorneys before signing it, and that
he was satisfied with his counsels' representation.
to sentencing, the United States Probation Office submitted a
pre-sentence report (the "PSR"), which concluded
that Defendant's base offense level was 36 based on at
least 23, 000 kilograms of marijuana equivalent associated
with the offense. The PSR included a two level enhancement
for possession of a dangerous weapon and a four level
enhancement based on Defendant's leadership role in the
conspiracy, resulting in a total offense level of 40.
Defendant's criminal history was category VI, resulting
in a Guidelines range of 360 months to life imprisonment.
Defendant's counsel submitted written objections to the
PSR, filed a sentencing memorandum, and argued, among other
things, that Defendant was responsible for a lesser quantity
of drugs than set forth in the PSR.
March 18, 2016, the court held a sentencing hearing at which
the government presented the testimony of two witnesses, one
of which testified on behalf of Defendant. The court adopted
the PSR as its findings of fact and sentenced Defendant to a
below-Guidelines term of imprisonment of 204 months, followed
by a term of supervised release of five years. Defendant did
not file a direct appeal.
Conclusions of Law and Analysis.
Standard of Review.
district judge must make a de novo determination of
those portions of a magistrate judge's report and
recommendation to which an objection is made. Fed.R.Civ.P.
72(b); 28 U.S.C. § 636(b)(1); Cullen v. United
States,194 F.3d 401, 405 (2d Cir. 1999). The district
judge may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28
U.S.C. § 636(b)(1); accordCullen, 194
F.3d at 405. A district judge, however, is not required to
review the factual or legal conclusions of the ...