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U.S. v. CRUZ-ALVARADO

June 7, 2005.

UNITED STATES OF AMERICA, Petitioner,
v.
HUMBERTO CRUZ-ALVARADO, Respondent.



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

On February 8, 2001, a federal grand jury returned an indictment charging Petitioner Humberto Cruz-Alvarado with possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Petitioner pleaded guilty to the indictment on May 29, 2001. This court held a sentencing hearing over several days between January 10 and April 4, 2002, ultimately sentencing Petitioner to 60 months in prison, to be followed by five years of supervised release. Petitioner claims that he should have received only between 37 and 46 months in prison pursuant to the "safety valve" exception to the five-year mandatory minimum sentence for his offense. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The Seventh Circuit rejected this argument on appeal and Petitioner now seeks a writ of habeas corpus under 28 U.S.C. § 2255. For the reasons set forth here, Petitioner's motion to vacate, set aside, or correct his sentence is denied.

BACKGROUND

  Neither Petitioner nor the government disputes the facts surrounding the offense committed in this case. In October 2000, Petitioner's sister Griselda called him in Chicago from her home in Guadalajara, Jalisco, Mexico, and asked him to accept a shipment for her and to provide temporary storage. United States v. Alvarado, 326 F.3d 857, 858 (7th Cir. 2003). Though Petitioner suspected that Griselda's husband was a drug trafficker, he agreed to accept the shipment. Petitioner's wife did not want the goods stored at their apartment, however, so Petitioner arranged instead for his brother-in-law, Juan De La Torre, to keep them at his house on Sawyer Avenue in Chicago. Id.

  On November 2, 2000, customs officials at Chicago's O'Hare airport inspected the shipment in question, which consisted of some 30 wooden crates weighing approximately 75 pounds each, and discovered that the crates contained hollowed-out, imitation marble disks filled with marijuana. Id. The next day, Customs agents posing as employees of the shipping company delivered the crates to De La Torre's house. A young man who answered the door told the undercover agents to place the crates behind the garage. Id. Soon thereafter, Petitioner and De La Torre arrived separately at the home and moved the crates into De La Torre's garage. The Customs agents then executed a search warrant for the premises and arrested Petitioner and De La Torre. The agents seized the marijuana, which totaled 272.15 kilograms, as well as a bill of lading for the shipment. Id.

  On February 8, 2001, Petitioner was indicted and charged with one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1).*fn1 On May 1, 2001, Petitioner and his attorney met with government representatives to offer information concerning his drug-trafficking activities in the hopes of qualifying for a reduced sentence under 18 U.S.C. § 3553(f) and Section 5C1.2 of the United States Sentencing Guidelines. Petitioner's counsel, John DeLeon, attended the proffer hearing, as did Assistant United States Attorney Barry Miller, Special Agent Glen Ryan Comesanas of the Customs Service, and a Spanish interpreter. On May 29, 2001, Petitioner pleaded guilty to the single charge of the indictment.

  A. The Sentencing Hearing

  The sentencing hearing began on January 10, 2002. There was no dispute that Petitioner satisfied the first four requirements for the safety valve: (1) he did not have more than one criminal history point, as determined under the sentencing guidelines; (2) he did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; and (4) he was not an organizer, leader, manager, or supervisor of others in the offense . . . and was not engaged in a continuing criminal enterprise. 18 U.S.C. § 3553(f). The parties disagreed, however, as to whether Petitioner had "not later than the time of the sentencing hearing . . . truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan. . . ." Id.

  The government opposed a safety-valve reduction, believing that Petitioner had refused to admit that he had knowledge of the contents of the shipments in advance of their arrival and that he was able but unwilling to disclose contact information for Griselda and her husband. Alvarado, 326 F.3d at 858. Petitioner's counsel, Joseph Lopez, told the court that Petitioner did not provide the government with his sister's address and telephone number because he did not have that information. Id. at 859. Petitioner's co-counsel DeLeon added that Petitioner's sister did not give Petitioner a telephone or pager number. The court continued the hearing to allow Petitioner an opportunity to provide additional evidence demonstrating his full cooperation. Id.

  When the hearing continued on January 29, 2002, defense counsel requested a copy of the bill of lading that the Customs agents had seized, explaining that Petitioner recalled telling the agents that his sister's telephone number was on that document. The court continued the hearing on February 11, 2002, by which time AUSA Miller had produced the bill of lading to Petitioner. The document contained three handwritten numbers and several letters ("Gris") scrawled nearby. "The numbers were not [otherwise] identified by function (telephone numbers? garage codes? something else?)" Id. at 858, 859. AUSA Miller told the court hat he had spoken with the two customs agents who were present for the arrest, and that both had insisted that Petitioner had not told them anything about the numbers on the bill of lading. The court again agreed to continue the hearing, this time to allow Petitioner and his attorneys an opportunity to investigate the cryptic numbers on the bill of lading. Id. at 859.

  At the next hearing on February 22, 2002, the government submitted affidavits from the two arresting agents stating that Petitioner did not refer them to the bill of lading when they asked him how to contact his sister. Petitioner's counsel argued that the agents' statements that they did not ask about the numbers on the bill of lading were not credible, and that Petitioner did not discuss his sister's telephone number at the proffer hearing because he no longer had the document containing those numbers. Id. The court continued the matter yet again, this time to hear evidence on these issues.

  B. The Evidentiary Hearing

  At the April 4, 2002 evidentiary hearing, Petitioner testified that he had told both the prosecutor and the agents about the numbers on the bill of lading at the proffer hearing. He explained that the numbers represented the telephone numbers for Griselda and her husband and that he wrote the letters "Gris" for Griselda. Special Agent Comesanas and AUSA Miller testified that they had asked Petitioner for information about his sister, but that he never provided a telephone number or referred them to the bill of lading. Id. at 860. The court resolved this credibility dispute against Petitioner, reasoning, in part, that the agents certainly have utilized that information had they known about it. The court noted, further, that the numbers on the bill of lading did not resemble telephone numbers so the government agents would not have had any reason to suspect their significance. The court declined to grant Petitioner the benefit of the safety valve, finding that his disclosures over the course of the sentencing hearing came too late. Id.; (Government's Response to Defendant's Motion, at 11.) The court sentenced ...


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