government's case. Paredes, however, fails to state how the government's case would have been damaged. Thus, he failed to establish prejudice.
Furthermore, prior to trial, Paredes signed a proffer admitting that he supplied five kilograms of cocaine to the informant -- not the incarcerated informant. The proffer, however, by its plain-language, was admissible at trial to impeach Paredes' if he testified. Thus, if Paredes would have testified at trial, the jury would have heard that he previously admitted to supplying the informant with the cocaine.
Regardless of when the government learned that Paredes was contemplating testifying at trial, the proffer would have come in against him. If Paredes believes that the government would have overlooked the proffer because they were caught off guard by Paredes' decision to testify, he is engaged in playful speculation. Indeed, in all likelihood, the government was hoping he would testify so that the proffer would be admitted into evidence.
Moreover, a prosecutor must always anticipate that a criminal defendant -- especially one facing a long term of imprisonment -- will decide (probably near the end of the trial) to take the stand guided by a "what have I got to lose" rationale. Accordingly, Paredes would not have caught anyone off guard if he would have testified in his defense. Assuming the allegations as true, there is no prejudice here.
E. Tainted Trial Record
Paredes rehashes his "telephone records" argument (see B(1)) and claims that the missing dialogues produces an incomplete record. He claims that the missing dialogue bolsters his case, but, he never says what was discussed in those missing minutes. The court finds, once again, that Paredes failed to establish prejudice.
F. Multiple Assessments
Regarding the instant case, Paredes was sentenced to 360 months in prison and assessed $ 50.00 pursuant to 18 U.S.C. § 3013. In an unrelated case before another federal court, Paredes was sentenced to 48 months in prison and assessed $ 50.00 for soliciting a murder. The sentences run concurrently.
For some indecipherable reason, Paredes believes that somehow the court violated his constitutional rights regarding the imposition of two § 3013 assessments and to correct this injustice the court must vacate -- since he already completed his 48 month sentence -- the remaining term of the 360 month sentence.
The court fails to comprehend his reasoning. However, the court can confidently state that Paredes' position is ludicrous and warrants no further discussion.
G. Sentencing Issues
Paredes claims that sentencing counsel was ineffective for failing to raise a couple of issues at sentencing. The court disagrees.
1. The applicability of U.S.S.G. § 2X1.1
First, Paredes argues that U.S.S.G. § 2X1.1 -- which covers attempt, solicitation, or conspiracy (not covered by a specific offense guideline) -- was applicable; thus, his total offense level should have been reduced accordingly.
Assuming Paredes gets past the procedural default for not raising the issue on appeal; assuming this issue is cognizable by way of a § 2255 motion;
and assuming Paredes is correct that § 2X1 1 was applicable, he could not have been prejudiced by the failure to apply the section. Indeed, Paredes was sentenced as a Career Offender under § 4B1.1. Under the Career Offender provision, Paredes' offense level was increased to 37. The Career Offender provision trumps the application of other provisions. Thus, even if Paredes' offense total would have been reduced under § 2X1.1, it nevertheless would have been increased to 37 under the Career Offender provision.
2. The Career Offender provision8
In determining the offense level applicable to a Career Offender, § 4B1.1 directs the court to first determine the offense statutory maximum. The higher the statutory maximum, the higher the offense level, generally speaking. Here, Paredes' statutory maximum under 21 U.S.C. § 841(b)(1)(B) was determined to be life, producing an offense level of 37. Paredes argues -- citing United States v. Lambros, 65 F.3d 698 (8th Cir. 1995) -- that the statutory maximum at the time of the commission of his crime was not life, but 25 years; accordingly, his offense level should not be 37 but 34.
The Lambros case concerns the application of 21 U.S.C. § 841(b)(1)(A)(ii). Paredes, however, was sentenced pursuant to § 841(b)(1)(B). That section, at the time of the offense, provided for a statutory maximum of life.
3. Prior state conviction
To be sentenced as a Career Offender, one must, among other things, have been convicted of at least two prior felony convictions of either a crime of violence or a controlled substance offense. See U.S.S.G. § 4B1.1. Paredes argues that one of the two prior felony convictions utilized to support the application of the Career Offender provision was unconstitutional, thus, it should not have been used for Career Offender purposes.
Paredes fails to support his position. He states the Illinois state court conviction for possession with intent to deliver a controlled substance had "obvious constitutional flaws." Yet, he fails to state what those "flaws" were. His argument is conclusory. Accordingly, he has not established that his prior state court conviction was unconstitutional.
Paredes' § 2255 motion is denied. The court is convinced that there was no denial or infringement of a constitutional right. His trial counsel did an exceptional job. Indeed, the court remembers this trial well. Paredes was a ticket scalper and a common drug dealer who disguised his drug transactions by utilizing coded language -- language associated with scalping tickets. The jury was not fooled for an instant, however.
Date: DEC 03 1997
James H. Alesia
United States District Judge