Cespedes-Pena v. United States

Background

Juan Cespedes-Pena, representing himself, moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence based on alleged ineffective assistance of counsel. He was arrested on June 4, 2014. A grand jury later charged him with conspiracy to import at least five kilograms of cocaine and conspiracy to distribute and possess with intent to distribute at least five kilograms of cocaine.

The Government did not make a plea offer. It provided defense counsel with a letter estimating a Sentencing Guidelines range of 121 to 151 months and identifying a mandatory minimum sentence of 120 months. Cespedes-Pena’s counsel confirmed on the record that he received and discussed the letter with Cespedes-Pena.

Cespedes-Pena’s first trial ended with a hung jury. At his second trial, he was convicted on both counts. At both trials, the Government introduced photographs of cocaine seized from a ship without objection.

Before sentencing, counsel requested a safety-valve proffer under 18 U.S.C. § 3553(f). During that proffer, Cespedes-Pena admitted that he had given false testimony at both trials. At sentencing, the court stated that the ten-year mandatory minimum did not apply because of the safety-valve proffer. The court nevertheless sentenced him to 120 months in prison, explaining that the sentence was largely based on his repeated false testimony.

Claims and Analysis

Cespedes-Pena asserted two ineffective-assistance claims. First, he argued that counsel told him both a guilty plea and a trial conviction would expose him to a ten-year mandatory minimum, and that he could not avoid that minimum because the Government had not offered a plea bargain. He said counsel failed to tell him that he could enter an open plea and seek a safety-valve proffer.

The court denied relief because Cespedes-Pena could not establish prejudice, meaning harm caused by counsel’s alleged error. Whatever counsel may have said before trial, Cespedes-Pena was able to make the safety-valve proffer before sentencing and did so. The court expressly recognized that the mandatory minimum did not apply.

Second, Cespedes-Pena argued that counsel failed to tell him that the Government had provided photographs of the seized narcotics during discovery. The court found that he did not allege any resulting prejudice. He did not claim that he would have avoided trial if he had known about the photographs or explain how the alleged failure affected his defense. In addition, he learned about the photographs when they were introduced at his first trial, so the alleged failure could not have prejudiced the second trial that resulted in his conviction.

Disposition

Judge Kimba M. Wood denied Cespedes-Pena’s § 2255 motion. The court stated that a certificate of appealability would not issue because he had not made a substantial showing that a constitutional right was denied. The Clerk was directed to close the case, and any pending motions were declared moot.