Filed: Jul. 30, 2007
Latest Update: Feb. 21, 2020
Summary: JESSIE A. QUI Pursuant to a binding plea agreement under Fed.1, The district court also sentenced appellant to supervised, release terms of three years on the first count and two years on, the second, to run concurrently.States v. Woods, 210 F.3d 70, 74 (1st Cir.on his habeas petition.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1148
JESSIE A. QUIÑONES-TORRES,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jessie A. Quiñones-Torres on brief pro se.
Nelson Pérez-Sosa, Assistant United States Attorney, Thomas F.
Klumper, Assistant United States Attorney, and Rosa Emilia
Rodriguez-Velez, United States Attorney, on brief for appellee.
July 30, 2007
Per Curiam. This appeal follows the district court's
denial of pro se appellant Jessie A. Quinones-Torres's original
habeas petition, two post-judgment motions, and request for a
certificate of appealability ("COA").
Appellant pled guilty to one count of conspiracy to
distribute at least 50 but no more than 150 kilograms of cocaine in
violation of 21 U.S.C. § 846, and one count of conspiracy to
launder monetary instruments in violation of 18 U.S.C. § 1956(h).
Pursuant to a binding plea agreement under Fed. R. Crim. P.
11(c)(1)(C), the government agreed to recommend a sentence of not
more than 228 months (or 19 years), and appellant reserved the
right to request the lower end of the applicable guideline
sentencing range. At sentencing, the court departed downward
pursuant to U.S.S.G. § 5K2.0, reduced appellant's criminal history
category from II to I, and sentenced him to 204 months (or 17
years) on each count, to run concurrently.1
Appellant's habeas petition claimed ineffective
assistance of counsel at each stage of the proceedings in the
district court, as well as on direct appeal. Appellant also
requested a new trial based on the discovery of purportedly
1
The district court also sentenced appellant to supervised
release terms of three years on the first count and two years on
the second, to run concurrently. The supervised release terms were
erroneously recorded as five years and three years on the written
judgment. We previously remanded this case to correct this
clerical error.
-2-
exculpatory evidence he claims was improperly withheld by the
government. The government does not challenge our jurisdiction to
review either the post-judgment motions or the underlying judgment.
We will assume, without deciding, that appellant has timely
appealed from the denial of his § 2255 petition, see, e.g., United
States v. Woods, 210 F.3d 70, 74 (1st Cir. 2000), and thus review
his ineffective assistance of counsel claims.
Appellant asserts that his counsel should have sought to
dismiss the indictment, but each of the arguments he raises in
support of this assertion is wrong as a matter of either law or
fact. See, e.g., United States v. Portela, 167 F.3d 687, 695-96,
702 (1st Cir.) (single conspiracy defined; government need not
prove overt acts in furtherance of narcotics conspiracy), cert.
denied,
528 U.S. 917 (1999); United States v. Guzman,
85 F.3d 823,
826 (1st Cir.), cert. denied,
519 U.S. 1020 (1996) (under dual
sovereignty rule, no double jeopardy bar to state and federal
prosecution of same offense); United States v. Flores-Rivera,
56
F.3d 319, 327 n.5 (1st Cir. 1995) (substantive crime and conspiracy
to commit that crime not the same offense for double jeopardy
purposes).
Appellant correctly argues that the district court
offered an incomplete description of the law governing co-
conspirator liability and sentencing and incorrectly referred to
the money laundering count as a "criminal forfeiture" count at his
-3-
change of plea and sentencing hearings, but he has failed to
identify any prejudice he suffered as a result. Appellant argues
that his counsel did not make any objections to the presentence
report, but fails to offer any factual or legal basis for the
objections he claims his counsel should have made.
Rather, the record shows that appellant never disputed
the description of his participation in the conspiracy, thus
distinguishing this case from United States v. Rodriguez-Gonzalez,
433 F.3d 165, 167-68 (1st Cir. 2005), and United States v. Colin-
Solis,
354 F.3d 101, 102-03 (1st Cir. 2004). As is true of the
petitioner in United States v. Isom, "[w]e see no reason why a
reasonable attorney would have felt the need to clarify to
[appellant] what was crystal clear from the hearing: he was
pleading guilty to conspiring to possess ... cocaine, and he was
facing a [lengthy] sentence."
85 F.3d 831, 835 (1st Cir. 1996).
Appellant entered into a binding Rule 11(c)(1)(C) plea agreement
with the government, and he received precisely the sentence for
which he bargained. Nothing in the record indicates that
appellant's personal circumstances fell outside the "heartland" for
sentencing purposes. United States v. Bogdan,
284 F.3d 324, 327
(1st Cir. 2002).
On this record, appellant was not entitled to a hearing
on his habeas petition. United States v. McGill, 11 F.3d 223, 225
(1st Cir. 1993). Neither was appellant entitled to a default
-4-
judgment simply because the government did not file an opposition
to his habeas petition. Gordon v. Duran, 895 F.2d 610, 612 (9th
Cir. 1990) (collecting cases). Moreover, on his conclusory claim
that the government improperly withheld exculpatory evidence,
appellant has not shown that the government failed to provide
information that amounted to a "material omission tantamount to a
misrepresentation" or engaged in "some particularly pernicious form
of impermissible conduct ...." Ferrara v. United States,
456 F.3d
278, 291 (1st Cir. 2006) (citing United States v. Brady,
397 U.S.
742, 757 (1970), and United States v. Bouthot,
878 F.2d 1506, 1511
(1st Cir. 1989)).
Thus, it is clear that no reasonable jurist would find
that the district court's assessment of the constitutional claims
was "debatable or wrong," Miller-El v. Cockrell, 537 U.S. 322, 377-
78 (2003) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)),
and there was no abuse of discretion in the court's denial of
appellant's Rule 59(e) motions. Cintron-Lorenzo v. Departmento de
Asuntos Del Consumidor,
312 F.3d 522, 527 (1st Cir. 2002).
Affirmed.
-5-
