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Barcelo v. United States

United States District Court, N.D. Illinois, Eastern Division

January 30, 2014

ANTHONY BARCELO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Case No. 09 CR 0627-1

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, District Judge.

Petitioner Anthony Barcelo moves the court to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. He raises three grounds for relief. He first argues that his defense counsel was ineffective, in violation of the Sixth Amendment, for failing to properly counsel him on his guilty plea. Second, he argues that his guilty plea was uncounseled and involuntary. Third, he argues that his plea was coerced and entered under duress. The court concludes that Barcelo's claims lack merit and denies the motion.

I. BACKGROUND

On August 4, 2009, a grand jury charged Barcelo and a co-defendant with two counts of conspiring to possess and distribute and possessing with the intent to distribute 500 or more grams of substances containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Barcelo submitted to an interview by the government on December 16, 2009. His first attorney, Steven Hunter, withdrew on January 13, 2010, and Charles Aron was appointed as new counsel. Aron represented Barcelo during a second interview with the government on February 22, 2010. During the interviews, Barcelo admitted distributing more than forty kilograms of cocaine over five years. The meetings with the government did not result in a plea agreement.

Barcelo retained a new attorney, Beau Brindley, who substituted as counsel on April 28, 2010. Barcelo entered a blind plea of guilty on September 15, 2010, to both counts of the indictment. His plea declaration stated that in July 2009, he met with an individual who was a cooperating source for the government. He met the source at a motel, where a co-conspirator gave him a package containing 2014 grams of cocaine. Barcelo was taking the bag to the room where the source was waiting when he heard the police arrive and threw the bag out a motel window.

Barcelo's plea declaration stated that the charges against him were fully explained by his attorney. It further stated that he was not liable for relevant conduct "amounting to approximately 40 KG of cocaine, which would establish a base offense level of 34, " when the only evidence of that conduct was based on statements he made during his interviews with the government. (Plea Decl. 4, ECF No. 61.) He further argued that the court should "consider the substantial evidence he... provided to the government" during the interview. ( Id. at 6.)

Although the government first argued that Barcelo should be held accountable for distributing more than forty kilograms of cocaine, the parties ultimately agreed that Barcelo would be held accountable for only four kilograms of cocaine, resulting in a base offense level of 30 and, after a three-level reduction for acceptance of responsibility, an adjusted offense level of 27. At sentencing, the court further reduced the adjusted offense level to 26, yielding a guideline range of 70 to 97 months, and sentenced Barcelo to 70 months' imprisonment, followed by four years of supervised release.

Barcelo appealed. On appeal, he argued that the court failed to consider, at sentencing, his efforts to cooperate with the government. The Seventh Circuit concluded that "the court implicitly considered Barcelo's efforts to cooperate" and affirmed the judgment. United States v. Barcelo, 457 F.Appx. 582, 583 (7th Cir. 2012). As the Seventh Circuit noted, "[t]he court repeatedly referred to Barcelo's acceptance of responsibility." Id. at 585.

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 2255, a person convicted of a federal crime may move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). If the petition is successful, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. at § 2255(b). Post-conviction relief is "an extraordinary remedy" because a petitioner has already "had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Relief "is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). In deciding a § 2255 motion, the court views the evidence "in a light most favorable to the government." United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000).

III. ANALYSIS

A. Ineffective Assistance of Counsel (Ground I)

Barcelo argues that his first appointed attorney, Mr. Hunter, failed to investigate his case or any mitigating factors and instead attempted to persuade him to cooperate with the government. Mr. Hunter promised him, falsely, that he would receive a safety valve reduction for his cooperation pursuant to U.S.S.G. §5C1.2 (although Barcelo's criminal history made him ineligible for such a reduction), and that any conduct he admitted during the interviews could not be used against him at sentencing (although the government made no such promise). Mr. Hunter also told Barcelo that the government would use its "unlimited resources" to assist him and protect him. According to Barcelo, he later discovered that the interviews with the government were not proffer-protected, and the information he provided destroyed his ability to offer a defense to the charges against him.

To establish ineffective assistance of counsel, Barcelo must show that his counsel was deficient and that this deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A failure to establish either element dooms his claim. Gant v. United States, 627 F.3d 677, 682 (7th Cir. 2010) (citing Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996)). "Prejudice in the context of a guilty plea requires a showing that but for counsel's deficient ...


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