Acevedo-Hernandez v. USA, No. 3:2012cv01763 - Document 16 (D.P.R. 2015)
Court Description: OPINION AND ORDER adopting Report and Recommendation 13 denying Motion to Vacate, Set Aside, or Correct Sentence 1 . For the reasons elucidated in the instant Opinion and Order, the Court hereby ADOPTS the Magistrate Judge's Report and Recommendation Docket No. 13 IN TOTO and INCORPORATES IT HEREIN BY REFERENCE. Accordingly, Petitioner's Motion to Vacate Docket No. 1 is hereby DENIED. Signed by Judge Daniel R. Dominguez on 2/27/2015. (MM)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MELVIN ACEVEDO-HERNANDEZ, Petitioner, v. Civil No. 12-1763(DRD) UNITED STATES OF AMERICA, Respondent. OPINION AND ORDER Pending before the Court are: Petitioner Melvin AcevedoHernandez’s (“Petitioner” or “Acevedo”) Motion to Vacate, Set Aside, or Correct Sentence (Docket No. 1) pursuant to 28 U.S.C. § 2255; Vacate (Docket United His States’ Conviction No. 10); Opposition and and Sentence to Petitioner’s under Magistrate 28 Judge’s Motion U.S.C. to § 2255 Report and Recommendation (Docket No. 13). For the reasons elucidated below, the Court hereby ADOPTS IN TOTO the Magistrate Judge’s Report and Recommendation (Docket No. 13) and DENIES Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Docket No. 1). I. REFERRAL TO THE MAGISTRATE JUDGE The Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). See FED. R. CIV. P. 72(b); see also Local 1 Rule 72(a); (1976). Matthews An v. Weber, adversely 423 U.S. party affected 261, 96 may S.Ct. contest 549 the Magistrate’s Report and Recommendation by filing its objections. FED. R. CIV. P. 72(b). Moreover, 28 U.S.C. §636(b)(1), in pertinent part, provides that any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. “Absent objection, . . . [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate’s recommendation.” 247 (1st Cir. Templeman v. Chris Craft Corp., 770 F.2d 245, 1985), cert denied, 474 U.S. 1021 (1985). Additionally, “failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objections are precluded upon appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992); see Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 required when (1st Cir. 1994) challenging (holding findings that actually objections set out are in a magistrate’s recommendation, as well as the magistrate’s failure to make additional findings); see 2 also Lewry v. Town of Standish, 984 “[o]bjection F.2d to a 25, 27 (1st magistrate’s Cir. report 1993)(stating preserves only that those objections that are specified”); Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir. 1987)(holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). The Court, in order to accept unopposed portions of the Magistrate Judge’s Report and Recommendation, need only satisfy itself that there is no “plain error” on the face of the record. See Douglass v. United Servs. Auto, Ass’n, 79 F.3d 1415, 1419 (5th Cir. 1996)(en banc)(extending the deferential “plain error” standard of review to the un-objected to legal conclusions of a magistrate judge); see also Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. acceptance reviewed 1982)(en of un-objected for “plain banc)(appeal to error”); from findings see also of district court’s magistrate judge Nogueras-Cartagena v. United States, 172 F.Supp. 2d 296, 305 (D.P.R. 2001)(finding that the “Court reviews Recommendation to recommendation was [unopposed] ascertain clearly whether Magistrate’s or not the erroneous”)(adopting Report and Magistrate’s the Advisory Committee note regarding FED.R.CIV.P. 72(b)); see also Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa. 1990)(finding that “when no objections are filed, the district court need only review the record for plain error”). 3 In the instant case, Petitioner has not filed objections to the Magistrate Judge’s Report and Recommendation. Thus, the Court will review the Magistrate’s Report and Recommendation for plain error. After a careful analysis, the Court finds no “plain error” in the unobjected-to Factual and Procedural Background section of the rather Magistrate than Judge’s repeating and set the Report facts of Recommendation. that pertain Thus, to the instant case in their entirety, the Court hereby ACCEPTS, ADOPTS AND INCORPORATES by reference the Magistrate Judge’s findings of fact in toto, noting particularly that they remain unchallenged. II. ANALYSIS Petitioner’s argument in support of a reduction of sentence is two-fold. First, Petitioner avers that he only conspired with a government agent, and no one else, to distribute cocaine, thereby making it legally impossible for him to have partaken in a conspiracy, as government members of a conspiracy. informants cannot be considered Second, Petitioner contends that the United States engaged in sentence factor manipulation when the government informant allegedly urged the Petitioner to bring a firearm to the site of the drug deal. At the Magistrate outset, Judge the Court Arenas’ stresses determination that it that agrees with Petitioner’s arguments are deemed procedurally defaulted, as Petitioner did 4 not raise the claims discussed herein at trial nor on direct review. See Oakes v. United States, 400 F.3d 92, 95 (1st Cir. 2005)(“If a federal habeas petitioner challenges his conviction or sentence on a ground that he did not advance on appeal, his claim is deemed procedurally defected.”). direct In cases of this nature, a district court may entertain the petitioner’s request for the first time “only if the petitioner has ‘cause’ for having procedurally defaulted his claims, and if the petitioner suffered ‘actual prejudice’ from the errors of which he complains,” neither of which are present here. Owens v. United States, 483 F.3d 48, 56-57 (1st Cir. 2007)(citing United States v. Frady, 456 U.S. 152, 168 (1982) and Knight v. United States, 37 F.3d 769, 774 (1st Cir. 1994)). The Court briefly explains. Conspiracy Theory The Court concurs with the Magistrate Judge’s determination that Petitioner’s argument regarding the conspiracy charge is flawed. Although government agents are not considered to be part of a conspiracy, said rule is relevant “only in situations where the government conspiracy informer. involves In that only [one] situation defendant there can and be a no conspiracy because it takes two to conspire....” United States v. Ciresi, 697 F.3d 19, 28 n.5 (1st Cir. 2012)(citing United States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987) (alteration in 5 original) (citation omitted) (quoting United States v. Martino, 648 F.2d 367, 405 (5th Cir. 1981)) (internal quotation marks omitted). As the Magistrate Judge correctly indicated, the plurality requirement in the case at bar is satisfied by the participation of two “true” conspirators, Angel Torres Figueroa. the Petitioner and co-defendant In his Plea Agreement (Criminal No. 10- 310, Docket No. 199), the Petitioner, under penalty of perjury, admitted to knowingly conspiring with Angel Torres Figueroa to possess with the intent to distribute five (5) kilograms or more of cocaine. See Criminal No. 10-310, Docket No. 199. He and Angel Torres Figueroa were tasked with providing protection to the purported seller of approximately twelve (12) kilograms of sham cocaine at a villa in Dorado, Puerto Rico on April 8, 2009. The Petitioner admitted being armed with a firearm during the simulated drug transaction and confessed being paid $2,000.00 for his participation. Accordingly, Petitioner’s assertion that he was the sole participant in the conspiracy is unavailing, as he admitted working in conjunction with co-defendant Angel Torres Figueroa to advance a common goal, i.e., to provide protection to the seller of cocaine. That the ultimate goal of the conspiracy was unaccomplished is irrelevant. 6 Sentence Manipulation: The Reverse Sting Operation In a similar fashion, the Court finds that there was no sentence factor manipulation. As the Magistrate Judge correctly noted, sentence factor manipulation of the variety advanced by Petitioner occurs when the authorities “venture outside the scope of legitimate investigation and engage in extraordinary misconduct that improperly enlarges the scope or scale of the crime.” United States v. Sanchez-Berrios, 424 F.3d 65, 78-79 (1st Cir. 2005)(internal citations and quotations omitted). The facts in the instant case rise to “the level of manipulation inherent in virtually any sting operation-and that is not enough to warrant a downward departure.” Id. The facts simply show that the government agent asked the Petitioner to bring a weapon with him to the villa where the drug transaction would ensue, a request, complied with by the Defendant, that is inherent in almost all drug sting operations. agrees with Magistrate Judge Arenas’ Thus, the Court determination that the government informant did not engage in sentence manipulation.1 1 Lastly, the Petitioner stresses that his attorney provided ineffective assistance of counsel by failing to advance Petitioner’s two contentions before the district court. Under the Strickland test, Petitioner has the burden of showing that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688)); see Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996); Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994); López-Nieves v. United States, 917 F.2d 645, 648 (1st Cir. 1990) (citing Strickland, 466 U.S. at 687). There is no doubt that Strickland also applies to representation outside of the trial 7 III. CONCLUSION For the reasons elucidated in the instant Opinion and Order, the Court hereby ADOPTS the Magistrate Judge’s Report and Recommendation (Docket No. 13) IN TOTO and INCORPORATES IT HEREIN BY REFERENCE. Accordingly, Petitioner’s Motion to Vacate (Docket No. 1) is hereby DENIED. It is further ordered that no certificate of appealability should be issued in the event that Petitioner files a notice of appeal because there is no substantial showing of the denial of a constitutional or statutory right within the meaning of 28 U.S.C. § 2253(c)(3). IT IS SO ORDERED. In San Juan, Puerto Rico, this 27th day of February, 2015. s/ Daniel R. Dominguez DANIEL R. DOMINGUEZ U.S. DISTRICT JUDGE setting, which would include plea bargains, sentence and appeal. See Missouri v. Frye, 132 S. Ct. 1399, 1408-10, 182 L. Ed. 2d 379 (2012); Lafler v. Cooper, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012); Hill v. Lockhart, 474 U.S. 52, 57 (1985). Since the Court has already determined that both of Petitioner’s contentions are totally meritless, as the errors alleged encompass facts that the Defendant accepted and were not under the control of counsel, it cannot be said that counsel’s performance fell below an objective standard of reasonableness. 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
