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Orsini v. United States

United States District Court, D. Maine

August 7, 2019

ANIBAL ORSINI, Petitioner,


          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Anibal Orsini moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 174.) Following a guilty plea, Petitioner was convicted of conspiracy to distribute more than 100 grams of heroin and a quantity of cocaine hydrochloride and fentanyl; the Court sentenced Petitioner to 188 months in prison. (Judgment, ECF No. 145.) The First Circuit affirmed the sentence. United States v. Orsini, 907 F.3d 115 (1st Cir. 2018). In response to the section 2255 motion, the Government moved for dismissal. (Response, ECF No. 178.)

         Following a review of the record, and after consideration of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request to dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         On March 28, 2017, Petitioner plead guilty to knowingly and intentionally conspiring to distribute 100 grams or more of heroin and a quantity of cocaine hydrochloride and fentanyl, pursuant to 18 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B). (Change of Plea Hearing, ECF No. 98; Judgment at 1).

         In May and July 2017, the Revised Presentence Investigation Report (hereinafter PSR) revealed that federal agents had, in 2014 and 2015, identified Petitioner, who was located in Lawrence, Massachusetts, as a supplier of heroin to dealers in Maine. (PSR ¶ 6.) After a series of controlled drug purchases, agents executed arrest and search warrants at Petitioner's residences and a stash house, as well as the residence of Petitioner's co-defendant, seizing fentanyl, cocaine, firearms, and cash. (Id. ¶ 10.) The probation officer concluded that Petitioner was accountable for 39.99 kilograms of heroin, 116 kilograms of cocaine, and 1.06 kilograms of fentanyl, yielding a guideline base offense level of 36. (Id. ¶¶ 13, 18.) Probation recommended a 2-level increase to the offense level for the involvement of a firearm, a 3-level increase for a managing or supervising role in criminal activity involving five or more participants, and a 3-level reduction for acceptance of responsibility, resulting in a total offense level of 38. (Id. ¶¶ 19, 23, 27 - 29.)

         According to the PSR, Petitioner's criminal history category was V, which increased to VI because Petitioner qualified as a career offender as a result of three prior controlled substance offenses. (Id. ¶¶ 48 - 49.) The resulting guideline sentencing range was 360 to 480 months of imprisonment. (Id. ¶ 89.) Petitioner filed a number of objections to the PSR, and argued that his base offense level should be 30 and his criminal history category should be V, but he did not specifically dispute the career offender status. (Id. at 27 - 31.) The probation officer wrote that “[a]fter consulting with defense counsel, the Probation Office asserts that the parties agree that this defendant is a career offender.” (Id. at 27.)

         At the October 16, 2017, sentencing hearing, the parties agreed that the Court did not need to resolve disputed factual issues regarding Petitioner's offense level because even without the disputed facts, Petitioner's career offender status established a minimum offense level that produced a guideline range of 188 to 235 months. (Min. Entry for Sentencing Hearing, ECF No. 143; Sentencing Transcript at 4, 9 - 10, 13, ECF No. 162.) The Court sentenced Petitioner to a prison term of 188 months imprisonment, followed by a term of five years of supervised release. (Judgment at 2-3.)

         On October 18, 2017, Petitioner appealed from the sentence. (Notice of Appeal, ECF No. 149.) On appeal, Petitioner challenged whether his prior convictions qualified as controlled substance offenses. Orsini, 907 F.3d at 119. The First Circuit noted the claim was “dubious” on the merits, but determined that Petitioner had waived his right to challenge the career offender determination by intentionally relinquishing or abandoning the issue. Id. at 119 - 121 (concluding that at sentencing “appellant's counsel repeatedly and unequivocally affirmed that the appellant should be sentenced as a career offender, and the appellant himself reprised this affirmation, ” which amounted to “a deliberate stratagem designed to give the appellant a distinct tactical advantage”).

         II. Discussion

         A. Legal Standards

         A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         “[P]ro se habeas petitions normally should be construed liberally in petitioner's favor.” United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the burden is on the section 2255 petitioner to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When “a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing.” United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

         A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “Accordingly, a defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence.” Berthoff, 308 F.3d at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010). The First Circuit has recognized that “federal courts have the authority to consider procedural default sua sponte.” Rosenthal v. O'Brien,713 F.3d 676, 683 (1st Cir. 2013) (citing Brewer v. Marshall,119 F.3d 993, 999 (1st Cir. 1997)); see ...

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