United States v. Calderon, Lizette

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 2, 1998 Decided January 12, 1999

No. 98-3014

United States of America,

Appellee

v.

Lizette Calderon,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 90cr00270-02)

Thomas Lumbard, appointed by the court, argued the
cause and filed the briefs for appellant.

Rachel Adelman-Pierson, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Elizabeth Trosman,
and Richard L. Edwards, Assistant U.S. Attorneys.

Before: Randolph, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: Having pled guilty to possession of almost 10
kilograms of cocaine with intent to sell, appellant Lizette
Calderon now appeals her sentence of 97 months incarcera-
tion followed by 5 years of supervised release. We affirm the
district court's sentence in all respects save for the term of
supervised release.

While traveling by train from Miami to New York City in
June of 1990, Calderon and her cousin were arrested in Union
Station in Washington, D.C., after Amtrak police searched
their bags and found 9,871 grams of 100% pure cocaine.
They were charged with one count of unlawful possession
with intent to distribute 5 kilograms or more of cocaine. 21
U.S.C. ss 841(a) & (b)(1)(A)(ii) (1994). Calderon absconded
before her scheduled trial date and was rearrested seven
years later in Puerto Rico.

As part of a written agreement, in which Calderon agreed
to plead guilty to one count of possession with intent to
distribute 5 kilograms or more of cocaine, the parties agreed
(1) that the safety valve provision of the guidelines should
apply so as to make the mandatory minimum sentence for the
charge inapplicable; (2) that Calderon should receive a two
level reduction for acceptance of responsibility and that she
would not seek other adjustments to her offense level; (3)
that Calderon could seek a downward departure at sentencing
and that the government could oppose such a departure; (4)
that the government could advocate a sentencing enhance-
ment for obstruction of justice, but would not advocate other
enhancements or an upward departure; and (5) that the
government would not oppose sentencing at the bottom of the
guideline range. While not specified in the written plea
agreement, the failure to appear charge was dropped prior to
the court's consideration of Calderon's plea.

At her sentencing hearing, Calderon made four arguments
to the district court: (1) Her decision to accept $25,000 for
transporting the cocaine arose out of economic duress be-

cause she desperately needed the money to make a down
payment on a house so as to free herself from her abusive
boyfriend; (2) she had shown extraordinary rehabilitation
because she had not committed any crimes since she jumped
bail; (3) her extreme depression constituted diminished ca-
pacity; (4) this crime was a single act of aberrant behavior
despite the fact that she admitted to using drugs previously.
Carefully considering the record, the district court appropri-
ately found each of these arguments wholly without merit,
sentencing her to 97 months in prison (the bottom of the
recommended range according to the sentencing guidelines)
and 5 years of supervised release. Calderon argues that the
district court erred by failing to consider her claims in
combination, or in the alternative, that her trial counsel was
ineffective for failing to ask the court to consider the claims in
combination.

We need not consider whether the trial court should have
considered her claims in combination for it is clear from the
record that Calderon would have gained nothing from the
combined consideration of four completely frivolous claims.
Moreover, because considering these claims in combination
would not have affected the sentence the district court im-
posed, Calderon cannot show that her counsel's performance
was constitutionally ineffective. See Strickland v. Washing-
ton, 466 U.S. 668, 694 (1984) ("The defendant must show that
there is a reasonable probability that, but for counsel's unpro-
fessional errors, the result of the proceeding would have been
different.").

Despite the fact that she agreed as part of a valid plea
bargain not to seek any other downward adjustments to her
sentence, Calderon nevertheless maintains that the district
court erred by failing to consider her a "minor" or "minimal
participant" under Sentencing Guideline section 3B1.2(a).
She notes that the Commentary to the Sentencing Guidelines
explicitly envisions "a case where an individual was recruited
as a courier for a single smuggling transaction involving a
small amount of drugs." U.S.S.G. s 3B1.2, comment. (n.2).
While we seriously doubt whether the amount of drugs
involved in this case (10 kilograms of pure cocaine with a

street value of almost $2 million) constitutes a "small
amount," we need not reach that issue as the plea agreement
barred defendant's claim. Moreover, Calderon has failed to
support her claim that her agreement to the relevant terms of
the plea bargain was unknowing or involuntary. The plea
agreement, which she signed, stated: "I fully understand this
agreement and agree to it without reservation. I do this
voluntarily and of my own free will." The district court
repeatedly asked her whether she understood and agreed
voluntarily to the terms of the plea bargain, and she re-
peatedly answered in the affirmative. Nothing in the plea
colloquy suggests any duress or lack of understanding of the
plea bargain's terms. And Calderon received an objectively
favorable deal by the government dropping her charge for
failure to appear.

In the alternative, Calderon argues that her counsel was
ineffective for agreeing to a clause in the plea agreement
limiting the legal grounds she could assert to reduce her
sentence. In order to set aside the plea agreement for
ineffective assistance of counsel, Calderon must show that her
"attorney performed below an objective standard of reason-
ableness, causing a 'reasonable probability that, but for coun-
sel's errors, [she] would not have pleaded guilty and would
have insisted on going to trial.' " United States v. Holland,
117 F.3d 589, 594 (D.C. Cir. 1997) (quoting Hill v. Lockhart,
474 U.S. 52, 59 (1985)). Calderon has not even alleged that
she would otherwise have gone to trial. Moreover, it is well
within the realm of valid strategic decisions of competent
counsel not to seek adjustments to a client's base offense level
when the government is willing both to drop a charge for
failure to appear and to forego seeking adjustments that
would increase a sentence. See Strickland, 466 U.S. at 689
("[A] court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the pre-
sumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.' " (quoting Michel
v. Louisiana, 350 U.S. 91, 101 (1955))). We cannot agree
with Calderon that this plea bargain was a "contract of

adhesion"; indeed, its terms do not suggest even a hint of
unfairness.

Finally, Calderon challenges the district court's imposition
of 5 years of supervised release, arguing that the district
judge was unaware that under Sentencing Guideline section
5D1.2(a) he had the discretion to sentence her to as few as 3
years of supervised release. See U.S.S.G. s 5D1.2(a) ("[I]f a
term of supervised release is ordered, the length of the term
shall be: (1) at last three years but not more than five years
for a defendant convicted of a Class A or B felony...."). We
agree. The pre-sentence report, upon which the court based
its sentence, erroneously stated that the Guidelines required
"a term of 5 years." Apparently following that recommenda-
tion, the district court wrote "- to 5 years" in the row
designated the "Supervised Release Range" on the "State-
ment of Reasons" of the judgment form. Given that the
district court admitted that if the court were not "locked in by
the guidelines in this case," it "would most likely not sentence
you to what is called for under the guidelines," and given that
the court chose the lowest possible prison term from the
range specified in the guidelines, it seems quite probable that
the court would also have sentenced Calderon to a term of
supervised release lower than the maximum specified in the
Guidelines.

This case is remanded for the district court to exercise its
discretion with regard to the term of supervised release. In
all other respects, we affirm.

So ordered.