United States District Court, D. New Jersey
JEROME B. SIMANDLE, Chief District Judge.
Petitioner Richard Caceres pleaded guilty on March 30, 2012 to one count of distributing and possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). On August 16, 2012, this Court sentenced Caceres as a career offender to a term of imprisonment of 151 months. Caceres now seeks to vacate, set aside and correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds that his counsel was ineffective for failing to object to his designation as a "career offender" at the time of sentencing and on appeal.
For the reasons explained below, the Court finds that Petitioner was properly characterized as a career offender and will deny the petition.
1. On March 30, 2012, Petitioner Richard Caceres pleaded guilty to one count of distributing and possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C), a class C felony.
2. The Presentence Investigation Report ("PSR") advised that Petitioner qualified as a career offender under the U.S. Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") § 4B1.1. The Guidelines provide that a defendant is a "career offender if (1) the defendant was at least eighteen year old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). The PSR made this determination based on two predicate controlled substance offenses: a conviction for a 2001 charge for distribution of cocaine with intent to distribute within 1, 000 feet of a school (PSR ¶ 81); and a conviction for a 2005 charge of conspiracy to possess with intent to distribute more than 100 grams of heroin (PSR ¶ 91).
3. Under the Sentencing Guidelines, Petitioner's base offense level was calculated at 24. (PSR ¶ 68; U.S.S.G. § 2D1.1(c)(8).) The Court deemed Petitioner a career offender, which increased his offense level to 32, but three levels were subtracted for acceptance of responsibility, leaving a total offense level of 29. (PSR ¶¶ 75-77; Amended Judgment, Statement of Reasons; Aug. 16, 2012 Sentencing Tr. at 21.) Eight criminal history points qualified Petitioner for Criminal History Category IV, but Petitioner's career offender status increased his criminal history category to Category VI. (See PSR ¶ 101; Amended Judgment, Statement of Reasons; U.S.S.G. § 4B1.1(b) ("A career offender's criminal history category in every case under this subsection shall be Category VI").) With an offense level of 29 and criminal history category of VI, the Guidelines recommended a sentence range of 151 to 188 months. Without the career offender status, Petitioner's sentence range - at an offense level of 21 and a criminal history category of IV - would have been 57 to 71 months. The Court sentenced Petitioner to 151 months - the bottom of the advisory range. (Aug. 16, 2012 Sentencing Tr. 32-33.)
4. Petitioner appealed his sentence, arguing that he should have been granted a downward departure because his criminal history category overstated the seriousness of his crimes and his likelihood of recidivism, and because he had extraordinary family responsibilities for his children and sick father. The Third Circuit denied his appeal in an opinion dated August 2, 2013, holding that it did not have jurisdiction to review this Court's discretionary decision to deny a motion to depart. The Court also rejected Petitioner's argument that the district court failed to adequately weigh the sentencing factors enumerated in 18 U.S.C. § 3553(a), and that the district court improperly and repeatedly referenced his unlawful entry in determining his sentence. United States v. Caceres, 533 Fed.App'x 80, 82-83 (3d Cir. 2013).
5. Caceres filed this petition to vacate, set aside and correct his sentence on November 21, 2013. [Docket Item 1]. He makes a new argument not raised in his earlier appeal, namely, that he is not a career offender within the meaning of U.S.S.G. § 4B1.1(b)(3) because his present conviction did not mandate a sentence of imprisonment of over one year and thus does not constitute a "felony drug offense" for purposes of § 4B1.1(b)(3). (Pet. at 5.) Petitioner argues that his counsel was ineffective for failing to object to Petitioner's erroneous classification as a career offender at sentencing and on appeal. Pet. at 13, 17.) The Government contends that Petitioner was properly sentenced as a career offender because his present conviction exposed him to a 20-year term of incarceration.
6. To prevail on a claim of ineffective assistance of counsel, Petitioner must demonstrate that (1) counsel's performance was so deficient as to deprive him of the representation guaranteed to him under the Sixth Amendment of the U.S. Constitution, and (2) the deficient performance prejudiced the defense by depriving the defendant of a fair trial. Chaidez v. United States, 133 S.Ct. 1103, 1107 (2013); Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice under Strickland, Petitioner must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Rainey v. Varner, 603 F.3d 189, 197-98 (3d Cir. 2010) (quoting Strickland, 466 U.S. at 694).
7. Three statutes are relevant here. Petitioner was convicted in this case under 21 U.S.C. § 841(a)(1) and (b)(1)(C). Section 841(b)(1)(C) provides that an individual "shall be sentenced to a term of imprisonment of not more than 20 years.... If any person commits such a violation after a prior conviction for a felony drug offense as become final, such person shall be sentenced to a term of imprisonment of not more than 30 years...." The Court found that Petitioner's conviction qualified him as a career offender. Under U.S.S.G. § 4B1.1(a), a defendant is a career offender if "(1) the defendant was at least eighteen year old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). The term "controlled substance offense" is defined in § 4B1.2(b) as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b).
8. In this case, Caceres does not contest that two of the three requirements under § 4B1.1(a) were satisfied. He does not dispute that he was over eighteen when he committed the instant offense, or that his two prior controlled substance convictions, for distribution of cocaine with intent to distribute within 1, 000 feet of a school and conspiracy to possess with intent to distribute more than 100 grams of heroin, qualified as predicate felony drug convictions for career offender status. He argues only that the third requirement has not been met, because his current conviction for distributing and possessing with intent to distribute cocaine is not "a felony that is either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). He contends that a felony offense means an offense that mandates a sentence of more than one year imprisonment, and
Section 841(b)(1)(C) carries 3 possible sentences, one of which is probation with no incarceration, and second is zero incarceration, and third is zero to twenty years. Where we find the option of a sentence of less than 1 year, no longer under federal definition can this offense be used to trigger a 4B1.1(b)(3) enhancement as in this case at hand.
(Pet. at 10; see also Pet. Reply [Docket Item 9] at 3 ("[A] conviction under § 841(b)(1)(C) cannot be used to enhance a defendant as a career offender because in order for a conviction to trigger a § 4B1.1(a) enhancement the minimum sentence that can be imposed must be 1 year 1 day").
9. The Court rejects Petitioner's argument for several reasons. First, a conviction under § 841(a)(1) carries with it the possibility of a 20-year maximum term of imprisonment, which qualifies the offense as a felony under 18 U.S.C. § 3559(a). Section § 3559(a) states that "[a]n offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is -... (2) twenty-five yaers or more, as a Class B felony; (3) less than twenty-five years but ten or more years, as a Class C felony;...." 18 U.S.C. § 3559(a). Because § 841(b)(1)(C) specifically ...