Herrera v. United States
- Naomi Buchwald
- 1:19-cv-10637
- U.S. District Court · Southern District of New York
- 9
In Herrera v. United States, Judge Buchwald denied Herrera’s challenge to his sentence, ruling his lawyer reasonably honored the plea agreement.
Lenin Herrera, whose federal sentence and ineffective-assistance claim were affected; the United States successfully opposed the petition.
What happened
Herrera v. United States concerned Lenin Herrera’s claim that his lawyer should have challenged a two-level sentencing increase for possessing a firearm. Herrera had agreed to that increase in his plea agreement and acknowledged during his plea hearing that he could not contest it at sentencing.
Herrera pleaded guilty to distributing at least 500 grams of cocaine and received a 70-month sentence. He later asked the court to vacate his sentence, arguing that his lawyer’s failure to challenge the increase was ineffective assistance. The government’s evidence included a handgun found in the same hidden compartment where Herrera had concealed cocaine.
Judge Naomi Reice Buchwald denied the petition. She ruled that challenging the increase would have violated the plea agreement and risked prosecution on all three indictment counts, and that the challenge likely would not have succeeded. The court therefore found no unreasonable performance by counsel and did not address whether Herrera was prejudiced.
The detailed version
- Herrera v. United States · No. 1:19-cv-10637
- Naomi Buchwald
- Dec. 2, 2019
Background
Lenin Herrera petitioned under 28 U.S.C. § 2255, a federal procedure allowing a person in federal custody to seek to vacate or correct a sentence, based on ineffective assistance of counsel. He argued that his lawyer should have challenged a two-level increase under U.S.S.G. § 2D1.1(b)(1) for possessing a firearm.
Law enforcement found several kilograms of cocaine in a hidden compartment in Herrera’s car. A handgun was later found in that same compartment while the car was being prepared for auction. A grand jury indicted Herrera on drug-distribution, drug-conspiracy, and firearm charges. Herrera later pleaded guilty to the drug-distribution count under a plea agreement.
The plea agreement included the firearm-based two-level increase and established a stipulated Guidelines range of 87 to 108 months. Herrera also agreed not to seek a departure or adjustment from that range. During the plea hearing, he confirmed that he understood he was agreeing to the increase and would not be able to argue at sentencing that a firearm had not been possessed. At sentencing, his lawyer did not challenge the increase, and the court imposed a 70-month sentence.
Herrera’s arguments
Herrera did not claim that ineffective assistance caused him to enter the plea agreement, and he did not dispute possessing the handgun. The court understood him to argue that the government still had to prove the firearm enhancement and that his lawyer was ineffective for not objecting to it at sentencing. His petition also asserted that the court plainly erred by not requiring that proof.
Court’s analysis
The court applied the two-part test for ineffective assistance of counsel. Herrera had to show both that his lawyer’s performance fell below an objective standard of reasonableness and that the alleged error prejudiced his defense. The court explained that failure on either part defeats the claim.
The court held that counsel’s decision not to challenge the enhancement was reasonable. Herrera had agreed to the enhancement and to the stipulated Guidelines range, and he had confirmed during the plea hearing that he could not challenge firearm possession at sentencing. An objection would have breached the plea agreement and exposed him to prosecution on all three indictment counts.
The court also compared the stipulated range with the penalties Herrera faced if the government prosecuted the firearm count. Counts One and Three each carried a 60-month mandatory minimum, and the firearm sentence had to run consecutively to the sentence on Count One, creating at least 120 months on those two counts alone. The court further stated that a challenge to the enhancement likely would have been futile because the firearm was found in the same compartment as the cocaine Herrera had hidden, making it difficult to envision the government failing to prove the enhancement by a preponderance of the evidence.
Because Herrera failed to show unreasonable performance by counsel, the court did not address the prejudice requirement.
Disposition
The court denied Herrera’s § 2255 petition, directed the clerk to terminate the motion, and closed the case.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.