Arboleda v. USA CV-96-199-SD 09/01/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Carlos Arboleda

v. Civil No. 96-199-SD

United States of America

O R D E R

Carlos Arboleda has moved for relief pursuant to

The government objects.

provides in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence. Background

The facts of the underlying criminal case are thoroughly set

out by the First Circuit in United States v. Arboleda,

(1st Cir. 1991), and will not be repeated here.

Discussion

Petitioner Arboleda argues that he was deprived of his right

to a grand jury indictment because the government proved a

conspiracy significantly different from the general conspiracy

charged in the indictment.

Citizens have a Fifth Amendment right to be tried only on a

grand jury indictment. This right is violated when a criminal

defendant is convicted on trial proof that varies from the

allegations in the indictment. United States v. Miller,

(1984). Petitioner argues that the indictment alleged a

broad cocaine conspiracy between Arboleda, Jean Lemieux, and

others. The government's trial proof, argues petitioner,

established two distinct conspiracies, one organized by Arboleda

and the other by Lemieux. Thus the trial proof of two distinct

conspiracies varied from the allegations of one expansive

conspiracy.

Here, even assuming a variance, Arboleda suffered no

prejudice. Berger v. United States,

(1935)

(variance between charge and proof is harmless error unless it

2 affects defendant's substantive rights). In United States v.

Glenn,

(1st Cir. 1987), the First Circuit addressed

a fatal variance argument in a conspiracy trial. There, the

indictment charged a broad conspiracy to import both marijuana

from Thailand and hashish from Pakistan. At trial, the

government only proved defendant Glenn's participation in a

simpler conspiracy to import Pakistani hashish. The court found

that the resulting variance prejudiced defendant Glenn because

"[t]he judge instructed the jury that even though there was no

evidence that Glenn himself imported or physically possessed any

marijuana, the jury could convict him on the substantive charges

if they found him guilty of the charged conspiracy."

at 859-

60. This instruction would not have been given had Glenn been

indicted properly. The jury convicted Glenn of importing and

possessing marijuana, and he received a longer sentence than he

would have for just the hashish conspiracy.

Unlike Glenn, Arboleda was not convicted of the substantive

crimes committed by alleged co-conspirator Lemieux, nor was

Arboleda sentenced on the basis of Lemieux's drug activities.

The law would have permitted the sentence he received for either

the conspiracy charged or the smaller conspiracy allegedly

proved. Thus Arboleda suffered no prejudice from the variance

between the allegations and trial proof. See United States v.

3 Doherty,

(1st Cir. 1989) (finding no prejudice

where sentence could have been imposed for the conspiracy proved

at trial) .

Petitioner next argues that the sentencing court erred in

applying the United States Sentencing Guidelines (USSG) to his

conspiracy conviction because his conspiracy ended before the

effective date of the Guidelines. Courts have held that it does

not run afoul of the Ex Post Facto Clause to apply the Sentencing

Guidelines to conspiracies that begin before the effective date

of November 1987 and continue after that date. See United States

v. Dale,

(D.C. Cir. 1993). Arboleda argues

that the only trial evidence of post-November 1987 cocaine

activity was Lemieux's testimony about a single cocaine

transaction with Arboleda in 1988. Arboleda complains that such

testimony did not carry sufficient indicia of reliability to

justify reliance by the sentencing court. "In sentencing

proceedings, . . . credibility determinations lie primarily

within the realm of the [sentencing] court." United States v.

Brewster,

(1st Cir. 1993). Lemieux's testimony

regarding when he last purchased drugs from Arboleda was not so

suspect that no rational fact finder would credit it. Thus the

sentencing court was justified in relying on Lemieux's testimony

in fixing the dates of Arboleda's conspiracy.

4 Arboleda next challenges the court's findings with regard

to the quantity of cocaine attributable to him for sentencing

purposes. In determining the amount of drugs to be attributed to

a defendant, the court may consider, among other things, trial

testimony and the presentence report. United States v. Morris,

(5th Cir.), cert, denied,

(1995).

"So long as the information concerning the quantity of drugs

involved has 'sufficient indicia of reliability to support its

probable accuracy,' the sentencing judge may consider it."

United States v. Mocciola,

(1st Cir. 1989)

(quoting United States v. Roberts,

(4th Cir.

1989)).

At the outset, the court notes that at the sentencing

hearing it found Arboleda responsible for 100 kilograms of

cocaine, which indicated a base offense level of 36, covering at

least 50 but less than 150 kilograms of cocaine. Thus Arboleda

can only qualify for a lower base offense level if the court

overestimated the quantity of cocaine by more than 50 kilograms.

In attributing 100 kilograms to Arboleda, the court relied

upon the presentence report,

("The

district court may rely on the information in the presentence

report if the information has some minimum indicium of

reliability."), and trial testimony, which together support the

5 conclusion that Arboleda dealt with at least 100 kilograms of

cocaine. See Presentence Report (part of Exhibit B to

petitioner's memorandum) at 9, 5 16 ("the probation officer

submits that between 100 and 150 kilograms of cocaine can be

attributable to the defendant"); Trial Transcript volume 4 (Tr.

IV) 171-191 (Lemieux testimony); Tr. Ill 217, 230 (Mical

testimony); Tr. II 164-65 (Riberdy testimony). Petitioner

complains that such information does not carry the necessary

indicia of reliability because he did not have a meaningful

opportunity to develop trial evidence on the issue of drug

quantities. At trial, Arboleda maintained his innocence of drug

trafficking. He could not have been expected to deny

participation in the drug trafficking conspiracy while

simultaneously offering evidence on the quantity of drugs.

Arboleda cites then-Chief Judge Stephen Breyer's article. Federal

Sentencing Guidelines and the Key Compromises upon which They

Rest,

(1988), which states, "A drug crime

defendant . . . cannot be expected to argue at trial to the jury

that, even though he never possessed any drugs, if he did so, he

possessed only one hundred grams and not five hundred, as the

government claimed."

; see also United States v.

Zuleta-Alvarez,

(1st Cir. 1990), cert, denied,

(1991). Arboleda complains that the trial evidence

6 on the issue of quantities was comprised solely of the government

witnesses' unchallenged testimony and was one-sided and

unreliable.

However, the court gave Arboleda an opportunity to produce

quantity evidence at the sentencing hearing. Arboleda declined

that opportunity, and his attorney said, " [W]e will essentially

rest on the Court's memory of the evidence that occurred at

trial." Tr. of March 13, 1990, sentencing hearing at 3.

Petitioner cannot now complain that he had no meaningful

opportunity to develop evidence on the issue of quantity.

Arboleda goes to great lengths to explicate the points of

impeachment against the witnesses who testified on the issue of

drug quantities, such as their cooperation with the government

and lack of corroboration. However, Arboleda had full

opportunity to develop impeachment at trial, and simply because

there are points to impeach the witnesses does not mean that

their testimony carries no indicia of reliability.

Arboleda next challenges the court's denial of an acceptance

of responsibility (AOR) reduction. A sentencing court's

evaluation of a defendant's acceptance of responsibility "is

entitled to great deference on review." USSG § 3E1.1, comment 5;

United States v. Marrocruin,

(1st Cir. 1998).

"This adjustment is not intended to apply to a defendant who puts

7 the government to its burden of proof at trial by denying the

essential factual elements of guilt, is convicted, and only then

admits guilt and expresses remorse." USSG § 3E1.1, comment 2.

The court denied the AOR reduction because, while Arboleda pled

guilty to the original indictment, he withdrew that plea and put

the government to its burden of proof at trial on the superseding

indictment. Tr. of March 13, 1990, sentencing hearing at 14.

Arboleda contends that the court's error was in assuming that,

simply because Arboleda put the government to its proof, he was

disqualified from the AOR reduction. As support, he cites

comment 2, USSG § 3E1.1, which provides, "Conviction by trial,

however, does not automatically preclude a defendant from

consideration for such a reduction." However, the comment goes

on to say that only in "rare situations" will conviction by trial

not preclude an AOR reduction. Arboleda has not demonstrated why

this is such a "rare situation." Thus the court will not disturb

its previous finding that Arboleda is not entitled to an AOR

reduction.

Petitioner next makes an ineffective assistance of counsel

claim under Strickland v. Washington,

(1984). The

standard for such claim is that, first, counsel's performance

must have fallen below an objective standard of reasonableness,

and, second, there is a reasonable probability that, but for

8 counsel's errors, the result of the proceedings would have been

different.

.

Arboleda argues that his trial counsel made several

unreasonable mistakes. However, he admits he is guilty of a

cocaine conspiracy that fully supports his sentence. Thus

Arboleda cannot meet the second prong of Strickland that, but for

his counsel's mistakes, he would have been acquitted by the jury.

Arboleda also argues that his counsel's performance on appeal

fell below an objective standard of reasonableness because his

counsel did not raise the constitutional arguments that Arboleda

raises in this habeas petition. However, as this court has

rejected Arboleda's constitutional claims as meritless, it was

not unreasonable for Arboleda's counsel to fail to raise those

claims.

Conclusion

For the foregoing reasons, petitioner's motion to vacate and

set aside his sentence is denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

September 1, 1998

cc: Carlos Arboleda, pro se Paul M. Gagnon, Esq. 9