Opinion
No. 01 CIV. 11396 (DLC), 00 CR. 863-01
September 12, 2002
MEMORANDUM OPINION AND ORDER
Lucy Pena ("Pena") brings a timely pro se petition pursuant to Title 28, United States Code, Section 2255, claiming ineffective assistance by her retained counsel in connection with her plea and sentence. She wishes now to contest the amount of money she "structured" through financial transactions her insurance brokerage business conducted over the course of more than four years to assist her husband's narcotics trafficking enterprise. As reflected in both the plea agreement she executed and in the Presentence Report, her offense level was increased by 14 levels because she had structured transactions involving more than $5,000,000. Based on a total offense level of 19 and a Criminal History Category of I, she received a sentence of 30 months' imprisonment, the bottom of her guidelines range. For the reasons that follow, her petition is denied.
Pena contends that her attorney told her that "by structuring any amount of money through [her business], she would be held accountable as if all business transactions were illegal." As described by Pena, she was aware of the Government's contention that over $5,000,000 in narcotics proceeds had been structured by her and discussed this accusation with her attorney. She contends that her attorney also told her that "the dollar amounts were irrelevant."
At no point in her petition does Pena indicate a desire to withdraw her plea. The reasons for that are not hard to discover. Her husband ran a highly successful heroin distribution enterprise and Pena knowingly and actively assisted him for years to conceal the transfer of the proceeds from his drug business in New York to Columbia and the Dominican Republic. The agreement to allow her to plead guilty to the structuring offense saved her from the far more serious charges of narcotics trafficking, which could have carried a ten year mandatory minimum term of imprisonment, and money laundering, which would have carried a sentence of at least 87 months in prison. Through the advocacy of her counsel and the agreement of the Government, she was permitted to plead guilty to a charge carrying a far lower guidelines range and a statutory maximum term of imprisonment of five years.
Pena's petition, therefore, asks solely that she be resentenced. Pena waived the right to bring such a claim in her plea agreement with the Government. The plea agreement contains an express waiver of the right to appeal or "otherwise litigate under Title 28, United States Code, Section 2255" any sentence within the stipulated guidelines range. At her allocution, Pena stated under oath that she had read the agreement, had discussed it with her attorney before signing it, and believed that she understood the agreement. She admitted understanding that by signing the agreement she had given up her right to appeal or attack her sentence "in any way" if the sentence was 37 months in prison or less. She also indicated that she was satisfied with her attorney's representation of her.
Any claim that her attorney told her that the dollar amounts that were structured were "irrelevant" to her sentence, or the implicit claim that she relied on such a statement, are flatly contradicted by the plea agreement and the Presentence Report, each of which increased her sentence by 14 levels due to the structuring of over $5,000,000. Since her total offense level was 19, the 14 level adjustment was the single most significant factor in the calculation of the sentence. As described above, at her plea Pena admitted to reading, discussing and understanding the agreement. As reflected in the transcript of her sentencing proceeding, she also read the Presentence Report and had no objections to it. At the plea proceeding, the Court had explained to Pena in general terms how a guidelines range is calculated, and there was nothing mysterious about the calculation contained in either of these two documents.
Pena also contends that her attorney told her that by structuring any amount of money through her business, all of the business transactions done through the business were illegal. She implies that this alleged advice from counsel was the reason she did not contest the $5,000,000 figure used to compute her guidelines range at either the time of her plea or sentence. The detailed description of the crime of structuring given by the Court at the time of Pena's plea makes any reliance on this alleged legal advice unreasonable. Among other things, the Court advised Pena:
THE COURT: I want to make sure you understand what you are charged with in this Information. As I understand it, you are going to be pleading guilty to a conspiracy charge which is the count that makes up this entire Information.
A conspiracy charge is, in essence, a charge that you willingly and knowingly entered into an agreement with others to violate the law, and specifically the laws that you are charged with agreeing with others to violate here, are the laws that make it unlawful to evade the transaction reporting requirements that are contained in a section of our laws, and that you and others agreed that you would try to violate those requirements by structuring or assisting in the structuring or attempting to structure currency transactions with one or more domestic financial institutions, and that this effort to violate the law through structuring involved more than $100,000 in a 12-month period. Specifically it describes structuring cash deposits that were made or placed into bank accounts.
Now, did you discuss the term structuring with your lawyer so that you have an understanding of what that term of art means?
THE DEFENDANT: Yes, I have.
THE COURT: Counsel, I would like you to listen as I describe, in sort of colloquial terms, what the structuring laws entail.
Our law requires certain forms to be filled out when there are transactions of $10,000 or more, and the structuring of transactions is the placement of money in banks in a way that will hopefully evade the requirements that those forms be filled out. It involves knowing and intentional conduct, understanding, that there is the obligation to make these reports and fill out these forms when there are transactions involving $10,000 or more. In order to evade those legal requirements there are deposits made of less than $10,000, usually in a series or in a group over a period of time with the specific intent that by structuring these deposits this way that legal reporting requirement can be evaded.
Do you understand what I have just described?
THE DEFENDANT: Yes, I do.
In addition to this detailed description of the crime of structuring, the plea agreement made it clear that the $5,000,000 referred to the amount of money "structured", not simply the amount of money handled by Pena's business. It said, "The parties agree that the defendant structured transactions involving more than $5,000,000. Accordingly, . . . the offense level is increased by 14 levels to a level 22." Similarly the Presentence Report indicated that it was the Government's contention that she "was responsible for structuring transactions involving more than $5 million." In the final portion of the Presentence Report, the section in which the Probation Department explained the reasons it recommended that a term of imprisonment of 30 months be imposed, it stated that "[t]he defendant was responsible for structuring transactions involving more than $5 million, thereby helping her husband and others to launder the proceeds of narcotics trafficking."
Pena's attempt to circumvent the waiver contained in her plea agreement by a claim that counsel was ineffective must, in these circumstances, fail. In light of the statements made in her plea agreement, at the time she entered her plea, in the Rresentence Report, and at her sentence, it is unnecessary to hold a hearing to determine what Pena was actually told by her attorney.
It is the law of this circuit that a waiver of the right to appeal is unenforceable when the plea agreement was formed without the effective assistance of counsel. See United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001). But this principle merely requires the Court to examine the merits of the defendant's ineffective assistance claim. As noted above, however, Pena's motion attacks her sentence and not the validity of her plea, or her plea agreement. In the context of a challenge to a sentence, a waiver agreement is fully enforceable, even in the face of a claim of ineffective assistance of counsel. United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998).
Finally, Pena contends that the information to which she pleaded guilty could be read to charge her with a misdemeanor, and that her sentence to a term of imprisonment greater that one year violates Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument can be swiftly rejected. The Information describes the object of the conspiracy by reference to Title 31, United States Code, Sections 5313(a) and 5324, and includes the accusation that the structuring was part of a pattern of illegal activity involving more than $100,000 in a twelve-month period. Pursuant to Section 5324(c)(2), the enhanced penalty for aggravated cases, that is structuring as part of a pattern of illegal activity involving more than $100,000 in a 12-month period, is a term of imprisonment of up to 10 years. Because Pena was charged with conspiring to violate this law, however, her maximum sentence was a five year term of imprisonment. At her plea of guilty, Pena was fully advised of the charge and in her allocution admitted to helping structure more than $100,000 in each of the six years from 1995 to 2000.
Lucy Pena's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 is denied. The Clerk of Court shall close the case. I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).