The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Criminal No. 15-0228
Plaintiff, ELECTRONICALLY FILED
v.
DANTE IVAN LOZANO,
Petitioner.
MEMORANDUM OPINION
In this criminal action, Petitioner, Dante Lozano (“Lozano”), who pled guilty (without a
plea agreement) to two counts of a two-count indictment and was sentenced on June 22, 2017 to
a term of 210 months (a below guideline range sentence), filed a pro se Motion to Vacate, Set
Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255. Lozano set forth seven bases to
support his Section 2255 Petition arguing as follows:
(1) Lozano was essentially “lured” into not taking his case to trial, accepting a plea offer,
and on the day the sentencing hearing “the offer was changed” resulting in a higher guideline
range.
(2) The Court miscalculated the guideline range when it included a four-level
enhancement for a leadership role, when co conspirators’ interviews and court proceedings
demonstrate that Lozano was not the organizer/leader.
(3) The United States probation officer erroneously included a four-level enhancement to
Lozano’s sentencing guideline offense level based solely upon his “belief” and not “facts” that
Lozano was an organizer/leader.
(4) The District Court erred in imposing the four-level enhancement during sentencing,
creating a sentence disparity among Lozano and his seven other co-defendants.
(5) Undue bias, prejudice, and influence, as well as “not being within the Probation
Officer’s jurisdiction,” influenced the District Court to implement the enhancement and increase
Lozano’s imprisonment guideline range with no evidence to support this enhancement.
(6) Lozano’s sentence was unreasonable “per the Sixth Amendment based on the
preponderance of evidence.”
(7) Lozano also claims ineffective assistance of counsel.
I. Factual and Procedural Background
A. Summary
On October 27, 2015, Lozano and his co-defendants were indicted by a federal grand jury
sitting in the Western District of Pennsylvania. ECF 3. The Indictment charged him with two
offenses: Count one charged Lozano with conspiracy to distribute and possession with intent to
distribute five kilograms or more of a mixture and substance containing a detectable amount of
cocaine; and Count two charged him with conspiracy to launder monetary instruments. Id. In
addition to Lozano, seven other individuals were charged with one or both of the crimes set forth
in the indictment. Id.
Lozano, who was imprisoned in Texas, made his initial appearance in the Western
District of Pennsylvania at his arraignment hearing held on July 6, 2016.1 On July 8, 2016, this
1 Before Lozano made his initial appearance in Western District of Pennsylvania, all seven of his
co-defendants entered into formal plea agreements with the United States Attorney for the
Western District of Pennsylvania. In addition, each of the seven co-defendants’ plea agreements
contained a provision whereby the United States Attorney offered to recommend/move this
Court for a total of a three-level downward adjustment for acceptance of responsibility which
Court ordered Lozano and his counsel to attend a status conference scheduled for August 10,
2016.2
At the status conference on August 15, 2016, Lozano’s counsel indicated that it was
possible that Lozano would plead guilty. ECF 219, ECF 395. During this status conference, the
Court issued an Order reserving time on October 7, 2016 for either a change of plea hearing or a
preliminary pretrial conference, depending entirely upon whether Lozano chose to plead guilty to
one or both of the charges or go to trial. The Court also set the case for trial on October 24,
2016. Id. and ECF 220.
The Court continued the October 7, 2016 hearing/conference at the request of Defendant.
ECF 268, ECF 269. The Court also continued the trial at the request of both Parties until
January 17, 2017.
On November 12, 2016, the Court held a status conference with counsel notifying them
that the trial date of January 17, 2017 was no longer feasible for the Court and, with counsel’s
approval, reset the trial for February 21, 2017. During this conference, the Court discussed some
evidentiary issues. ECF 396.
A jury was selected on February 14, 2017, one week before the trial was scheduled to
begin. On the morning that trial was to begin, February 21, 2017, Lozano and his counsel
notified the Court that Lozano wanted to plead guilty. ECF 400. Lozano pled guilty, without a
plea agreement; instead, he took an open plea and admitted his guilt to both of the charges. Id.
lessened each of the co-defendants’ offense levels and thus, reduced their respective guideline
ranges. Additionally, before Lozano made his initial appearance in the Western District of
Pennsylvania, each of the seven co-defendants had appeared before this Court and had formally
pled guilty to their respective charges as per their individual plea agreements.
2 Defendant’s counsel was not present at the August 10, 2016 conference, so this Court
rescheduled it for August 15, 2016.
Following his plea, on June 22, 2017, this Court sentenced Lozano to 210 months at
Count one and 210 months at Count two, to be served concurrently, and followed by a term of
supervised release of 5 years at Count one and 3 years at Count two, also to run concurrently.
ECF 387, ECF 388 and ECF 401. The Court also imposed the mandatory special assessment in
the amount of $200.00, but waived a fine given Lozano’s inability to pay a fine.
Lozano appealed his sentence on June 29, 2017. ECF 390. On December 20, 2018, the
United States Court of Appeals for the Third Circuit upheld the Judgment of this Court, and on
January 11, 2019, issued its Mandate. ECF 403 and ECF 404.
On December 10, 2019, Lozano filed his Motion to Vacate Sentence under 28 U.S.C.
2255. The Miller Notice was issued by this Court on December 19, 2019. ECF 415. Lozano
filed his Notice of Intent on January 17, 2020 (ECF 416), and shortly thereafter, the Government
filed its Response to Lozano’s Section 2255 Motion. ECF 420. This matter is now ripe for
disposition.
B. Details of the Status / Pretrial Conferences
The first status conference was held on August 15, 2016. ECF 395. By August 15, 2016,
every one of Lozano’s co-defendants in this case had entered into plea agreements with the
Government and had pled guilty to their various charges. During this first conference with
Lozano, the Court inquired whether Lozano would also be entering into a plea deal, or if the case
should be listed for trial. Id. Lozano’s counsel stated:
After discussing the case with Mr. Nescott at length and discussing it with
the defendant and studying the discovery in the case that has been
disclosed so far, the defense thinks it's unlikely there is going to be a trial
in question. As a matter of fact, I would say it's a very remote possibility.
In the meantime, the government and defense continues to discuss plea
options in the case and I would recommend at least a 90-day continuance
of proceedings to continue those discussions and reach a completion to
them.
Id.3 Lozano’s attorney told the Court at this first conference that he was in need of discovery
materials from the Government. In response, Government suggested as follows:
MR. NESCOTT . . . Your Honor, I have gone as far as I could at this point
telling defense counsel that A, B, and C, these witnesses are available and
they would testify to this extent. However, I would be willing to sit down
with Mr. Cox and let him review the statements that have been made to
this point. Certainly, that should help spur along a resolution of this
matter.
THE COURT: Is that helpful?
MR. COX: That would be very helpful, Your Honor.
THE COURT: That’s a counsel-to-counsel meeting together and sharing
the information so it’s clear what we’re talking about.
Id. Shortly thereafter the Court and Lozano entered into the following exchange:
THE COURT: Are you having sufficient communication with your
counsel?
THE DEFENDANT: Yes, Your Honor.
THE COURT: If you want to talk to him more today because it’s only
9:45, so you can be down with the marshals -- do you want to talk to him
more today? Do you want to talk to the defendant more today?
THE DEFENDANT: We made an arrangement already, Your Honor.
Thank you. He is going to come see me.
THE COURT: At the prison?
MR. COX: Yes, Your Honor, I am.
THE COURT: I just wanted to make sure enough communication was
occurring. I appreciate it’s not only whether someone is going to plead or
not, it's what the terms of the plea agreement is at the end of the day. I
appreciate it isn’t just a yes or no, there are details you need to work out
but reviewing those statements would be helpful. When would you be
able to do that?
MR. NESCOTT: In a matter of days depending on Mr. Cox’s schedule.
THE COURT: Before you leave, will the two of you make a date -- not to
me but between yourselves so you don't have to email back and forth all
week.
MR. COX: Yes, Your Honor.
THE COURT: Wonderful. Anything else you want us to deal with today?
MR. COX: No.
THE COURT: Sir, do you understand the path we are on?
3 The Court declined to give the parties a 90-day continuance at this juncture; however, given
that the trial was, over time, continued twice, with a start date of February 21, 2017, the parties
did obtain a greater extension than the 90-day extension they requested.
THE DEFENDANT: Yes.
Id.
The second status conference was held on November 21, 2016. ECF 396. During this
conference, the following exchange took place between defense counsel and this Court:
MR. COX: So far, Your Honor. I would prefer not to try it, and we have
been unable to come up with a plea that defendant will accept. And, you
know, we’re talking about fifteen years. So, it’s a, a major decision for
him.
THE COURT: Certainly. I appreciate that.
MR. COX: And, you know, the defense still has difficulties with what I
consider inadequate discovery. I learned some new material the first time,
new facts, today just talking to Mr. Nescott, who I have the greatest
respect for. But, you know, I don't have any hard evidence at this point to
present to the client to say if you go to trial this is going to happen, you're
going to get convicted.
THE COURT: So, what can we do to help in that regard, on behalf the
government?
MR. NESCOTT: Your Honor, if --
THE COURT: Be comfortable. Be seated, please. Sorry.
MR. NESCOTT: I have shared, I mean, the hard evidence, basically,
comes from, apart from evidence of money orders, that’s been turned over
to the defendant. Hard evidence comes from the testimony of witnesses.
I’ve provided those reports to Mr. Cox, but I reclaimed them at that point.
But I did share them. But I told him, if it would move it along any, I
would get him all the reports, he can sit down with his client, and share
them. But there’s apparently some different view from the prosecution
and the defendant as far as what happened here. So, I will get all those to
Mr. Cox and he can do with them what he will.
THE COURT: Okay. Because most of these folks have already pled
guilty; correct?
MR. NESCOTT: They’ve all pled guilty; yes. Five or six of them will be
witnesses for the government.
THE COURT: Right. They’ve agreed to testify, at least, under oath, from
their perspective, anyway, to the factual statements that are the predicate
of their guilty pleas; correct?
MR. NESCOTT: That’s correct, Your Honor.
THE COURT: Does that help?
MR. COX: Well, yes, Your Honor. Here is what the defense has actually
been presented with thus far. We have a, you know, like a three- or four-
page list of money order numbers, but no copies of actual money orders
showing the endorsement, who made payable to.
THE COURT: Well, let’s stop there.
Does the government have those exhibits and, if so, are they willing to
produce them?
MR. NESCOTT: Whatever we have. Of course, we’ve indicated in
discovery early on that defense could inspect anything and we would copy
them for them. But well do that, if that’s being requested. All the money
orders, if we have the back sides, I will get those to Mr. Cox.
THE COURT: Is that what you would like?
MR. COX: That would be good, Your Honor.
THE COURT: Next, please?
MR. COX: The other item that was disclosed was a short interview of the
client, in which he says nothing inculpatory. And the government’s theory
appears to be that Mr. Lozano was the leader in a conspiracy which mailed
cocaine from Texas to Pittsburgh, involved a crooked postmaster, who
would, you know, divert these packages knowing they were coming to his
post office, and would supply them to a man and woman who were the
local ringleaders of the scheme.
And the problems we’re having are that, you know, I did briefly and fairly
cursorily review the Jencks material. Mr. Nescott was very kind to show it
to me. Of course, I didn't have any kind of time to think about it or
anything like that. But I did note that Mr. Lozano’s name is never
mentioned in any of these statements. He’s referred to, according to the
government, as D. Well, I think referring to somebody as D is just too
incoherent to supply evidence beyond a reasonable doubt. D? What does
that mean? Then, the government claims that Mr. Lozano visited
Pittsburgh at least twice. Mr. Lozano insists that he’s never been in
Pittsburgh. And as far as his visits, I would like to know when,
approximately, they were, and how did he get here,
was it a bus or a plane, did he drive, where did he stay? I mean, you
know, some corroborating evidence that he actually came here.
THE COURT: Is there anything like that that you’re willing to produce at
this time?
MR. NESCOTT: Your Honor, the government has no evidence as far as
how Dante Lozano got here. We have eyewitnesses, two or three, who
will place him here, living here for actually two or three months at one
point. So, again, there’s no travel records that we can construct because
we don’t know how he got here. As far as Mr. Lozano, and this is a core
issue. Mr. Lozano’s just indicating, saying I’ve never been to Pittsburgh
and I never came here to do this, where the witnesses will say he
distributed to a guy named Biscey, who is now in prison. And when
Biscey went to prison, the two new co-defendants here took over, and they
both identify him as coming up here all the time, and that’s how it all
started going.
Id. (Emphasis added). The Court then set jury selection for February 14, 2017 and the trial for
February 21, 2017. Before adjourning the November 21, 2016 conference the Court stated:
THE COURT: Well, I just encourage you to swap enough information.
But if it’s a jury trial, that’s fine. We should certainly be able to try it in,
you know, two or three days. It doesn’t seem that complicated. And since
I’ve heard most of the pleas, I’ve at least heard some of the alleged
evidence. Anything else you would like to talk about today?
MR. NESCOTT: So I understand exactly what Mr. Cox is requesting.
We will provide copies of everything, money orders, we have about how
they were deposited, whatever we have. I will provide witness statements
voluntarily early, as soon as I can get them together now. And any other
hard evidence I have, if there's things that I don't know if it should be
copied, or there's a need, or it's voluminous, I’ll invite Mr. Cox back to
take a look at and tell me what he wants. If it’s what he wants, we’ll copy
it.
THE COURT: That work for you?
MR. COX: That's fine, Your Honor.
THE COURT: Great.
Id.
The next conference was held on January 4, 2017. ECF 397. During this conference,
counsel for Defendant had to be joined by telephone, but Lozano and the assistant United States
Attorney were present in the courtroom when the following exchange occurred:
THE COURT: Mr. Lozano, welcome. Your counsel isn’t here. I have
received a letter from you, dated December 19, 2016. Do you want me to
treat this as a motion for new counsel; is that what you are asking for?
THE DEFENDANT: I have received nothing, Your Honor, on my case.
THE COURT: You have to speak into the microphone, sir, so we can hear
you. You may be seated and be comfortable, please. So, you sent me a
letter; correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: That letter’s dated December 19, 2016. My question to
you is, are you asking for a new lawyer? If you want a new lawyer I'll get
you a new lawyer.
THE DEFENDANT: Not at this moment, Your Honor. I, just because I
haven't received none of my discovery or nothing like that.
THE COURT: Okay. So, you wanted your discovery, and Jencks, and
other material; correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: What’s the plan of the government in that regard?
* * *
MR. NESCOTT: Thank you, Your Honor. I advised Mr. Cox that I
would deliver to him at least a month before trial or as soon as possible,
they’re actually sitting here, all but the, all the debriefings of all the
witnesses. So, those are ready to be turned over. If he doesn’t appear
today, I’ll put them in the mail today to him.
THE COURT: Why don’t you send him two copies of everything so that
he can then send along to the defendant?
MS. TUMOLO [COURT STAFF]: He’s in Harrisburg. He’s on hold on
the phone. Mr. Cox is now on the phone.
THE COURT: We’re going to try to get him on the line.
MR. NESCOTT: I will do that, Your Honor.
MS. TUMOLO: Mr. Cox, can you hear me?
MR. COX: Yes.
MS. TUMOLO: This is Lisa Tumolo. You are live in Court. Your client,
Mr. Dante Lozano, is present, counsel for the government is present, and
the Judge is on the bench.
MR. COX: Yes.
* * *
THE COURT: Okay. We've also received a letter from, from the
defendant, dated December 19, 2016, raising concerns that you've not
given him the material he needs in order to evaluate the case, that he’s not
received the probable cause affidavit, and other materials. So, I think he’s,
I think the defendant needs some communication with you, which means
physically going, you physically going, over there and meeting with him
at the, at the prison in Ohio. So, are you willing to do that?
MR. COX: Yes, sir. I certainly will.
THE COURT: Would that be helpful to you, sir?
THE DEFENDANT: Yes, Your Honor.
THE COURT: So, what’s going to happen is that the government is going
to mail to you, Mr. Cox, the discovery and Jencks material. He’s actually
going to send you two copies. As soon as you receive that, which should
occur sometime this week, then mail those over or take them over to Mr.
Lozano and meet with him, because he has some important decisions to
make and he needs information in order to make an intelligent decision
about whether to go to trial or whether to plead.
MR. COX: I understand.
* * *
THE COURT: All right. So, have you seen this letter, Mr. Cox? Have
you seen this letter from the defendant?
MR. COX: Your Honor, I have not.
THE COURT: Okay. We will fax it to you and then we want to hear
from you what we need to do with this letter, because I need to get it on
the record. So, I either need to file it like as a motion for discovery, but I
need, I need to know how it should be docketed. He wants you to stay as
his counsel. So, he’s not asking for new counsel. But I need to know
exactly what this document needs to be [titled]. So, I’m going to send it to
you immediately and then I would like you to get back to my staff today
telling me how it should be docketed, because I don’t like letters from
defendants not being on the docket, because that's the only way anyone,
including the appellate court, can review the case, is to have the matter
put onto the docket. Understand?
MR. COX: Your Honor, my fax machine is not working at the moment.
THE COURT: You got an e-mail?
MR. COX: That would be great.
THE COURT: Okay. We'll e-mail it to you.
MR. COX: Okay. That would be great, Your Honor. And I will go see
the defendant tomorrow or Thursday.
THE COURT: Well, you may want to wait until you get the discovery
material that's going to be mailed out to you today.
MR. COX: Very good.
* * *
THE COURT: Are you satisfied with what we’ve done today for you?
THE DEFENDANT: Yes, sir. Yes, Your Honor. Thank you.
THE COURT: All right. I’ll send out a new pretrial order with some new
dates, and because we have a final pretrial coming up. The final pretrial is
on February 14. But if we need to get together for a status conference,
either because there's going to be a plea or there’s some other issues that
have been raised by the defendant, then you need to tell me. You need to
file a motion for a status conference, and I'll get that promptly scheduled,
because we’re choosing the jury the same day as the final pretrial
conference.
MR. COX: Yes, sir. I understand.
THE COURT: We’re selecting the jury on February 14 and then the trial
will start the twenty-first. But the final pretrial is the same day as the jury
selection. All right?
MR. COX: Yes, sir Your Honor.
THE COURT: Thank you, all. The marshals may remove the defendant,
and I’ll see you either at an upcoming status conference or at the final
pretrial.
MR. COX: Yes, Your Honor. Thank you.
Id.
The next conference was a preliminary pretrial conference which was held on February 7,
2017. ECF 398. After going through all of the procedural matters with counsel, the Court and
Lozano had the following discussion:
THE COURT: Sir, have you had adequate time to talk to your attorney
throughout this process, now?
THE DEFENDANT: Yes, Your Honor. Little bit. I just like to have a
little bit more time to talk to my lawyer, if it’s possible.
THE COURT: Then I'll ask, do you have some time, it’s now eleven
o'clock, on behalf of defense counsel, do you have time now to meet with
the defendant?
MR. COX: It would be better if I went over to see him at NEOCC.
Again, I saw him on Thursday and I'll see him again on Monday. We’ve
already discussed this.
THE COURT: Okay. Is that satisfactory?
THE DEFENDANT: Yes, Your Honor.
* * *
THE COURT: We'll have this podium turned around so that you can make
your openings and closings facing the jury. The only thing I would ask is
that you should always stand near a microphone so we can hear you. If
you’re not personally speaking into a microphone, it’s difficult for
everyone to hear. Sir, anything you want to talk to your lawyer about
before you leave?
THE DEFENDANT: Yes, sir.
THE COURT: Take a moment and chat about it with him. Move the
microphone away, so we don't hear.
(Whereupon, an off-the-record discussion was had.)
THE COURT: You've had adequate time now to chat?
MR. COX: Yes, Your Honor.
THE DEFENDANT: Yes.
MR. COX: We’re just clarifying our visit for next week.
THE COURT: Wonderful.
Id.
The following week, on February 14, 2017, the morning of jury selection, Lozano
reported to the Court that he and his attorney were not getting along, and he wanted to have a
new attorney appointed to defend him. The following is the discussion between the Court and
Lozano:
THE COURT: Okay. Good morning. This is the time and place for jury
selection, pursuant to my previous order of Court.
* * *
THE COURT: Okay. Pursuant to my order of Court, is the government
ready to proceed with the selection of the jury today?
MR. NESCOTT: The government is, Your Honor.
THE COURT: On behalf the defendant?
MR. COX: Yes, Your Honor.
THE COURT: Are you ready to proceed, sir, for the selection of the jury?
DEFENDANT: I would like to, to address the Court, please.
THE COURT: Pull the microphone closer to you. You may proceed.
THE DEFENDANT: Your Honor, with all due respect, Your Honor, I
would like to, I would like to point some issues to the Court here so they
can be of record.
THE COURT: Continue, please.
MR. COX: Sir, I would like to get a new counsel, sir, please, because the
one that I have now is inadequate.
THE COURT: Explain, please.
THE DEFENDANT: Well, our differences are too great, sir. Everything
has all been a detrimental breakdown in our communication that is beyond
repair. And I would like to exercise my Sixth Amendment right to
adequate and effective counsel, Your Honor.
THE COURT: You raised that issue, previously; correct, sir? In a
letter dated December 19, 2016; correct?
THE DEFENDANT: Yes, Your Honor, but I just got, I received
everything that I, just like about three weeks ago, Your Honor. I'm not,
I'm in this case and I need more time. But I need adequate and effective
counsel, too, Your Honor.
THE COURT: I will direct that your letter of December 19, 2016 be filed
of record. I previously asked you, I believe, whether you wanted that filed
during our January 4, 2017 conference. You said you didn’t want it to be
filed. But I think we now need to file it. Sir, on January 4, 2017, you
were before this Court and your attorney was present by telephone. At
that time, the Court informed your counsel that you had mailed a letter to
the Court asking for new counsel. That’s the letter I just mentioned of
December 19, 2016. I told you, if you wanted a new attorney, that you
could have a new attorney, but we wouldn’t continue the trial date. We
discussed at length what your options were. After much discussion, you
informed the Court that you wished to proceed with Mr. Cox as your
counsel. Since January 4, 2017, the attorneys for the government and Mr.
Cox, your attorney, have been working hard in preparing for this trial.
The Court, also, with the staff, has been preparing diligently for trial. We
currently have, approximately, fifty jurors that have been sitting for over
an hour to be part of the jury selection process. They’re down in the jury
assembly room. They have been waiting for us. When we met last week,
you were present on February 7, 2017, at the final pretrial conference and
we discussed all final matters prior to jury selection, which is going to
occur today. At no time last week while you were present at that pretrial
conference did you raise the issue with this Court that you wanted new
counsel. Based on your representations, quite frankly, sir, the Court has
doubts that you're dissatisfied with your attorney, but rather you believe
you may be upset with the frank discussions he has had with you about the
risk that you face in going to this trial. I presume that you, counsel, you
have discussed with the defendant the evidence that will be presented,
possible potential outcomes in your case, and your expansive experience
with the nature of jury selection in the Western District of Pennsylvania;
correct?
MR. COX: Yes, Your Honor. Your Honor, we have gone over the
evidence in this case since it became available, in person, many times in
detail. Yesterday, in the most detail, because the government had supplied
us with some additional evidence. I had to give Mr. Lozano my frank
analysis of this evidence and how it was going to affect him if we were to
go to trial.
THE COURT: Understand.
MR. COX: He did not like that. He would like magic and I'm not a
magician. I have to deal with the evidence as it is. I'll do a good job for
him, as well as I can, but the evidence is harsh and the outcome is pretty
foreclosed at this point. There is nothing we can do except go to trial or
plead guilty. If he elects to go to trial, we'll try the case.
THE COURT: Fine. And we will do that today. I've had Mr. Cox in my
Courtroom many times on several trials and he's an experienced and
accomplished criminal defense attorney. I've no doubt, sir, that he will
defend you to the best of his ability, given the evidence the government
plans to present to the jury during this trial. And if he's told you things
that you didn’t want to hear, he did that because he’s bound by his ethical
obligation to be candid with you about your case. But as he's just said, he
stands willing to defend to you the best of his ability, but he can't change
whatever the evidence is that's going to be presented. So, we're going to
go pick a jury this morning.
THE DEFENDANT: Your Honor, can I speak, please? Can I address the
Court, Your Honor?
THE COURT: I'm not done speaking, but when I am done you may.
THE DEFENDANT: I'm sorry.
THE COURT: This trial has been continued on numerous occasions at the
request of defendant and/or defense counsel. I think this is the third trial
date that's been set. We had a jury selection set for October 24, 2016, and
again on January 17, 2017, and then today, which is February 14, 2017.
So, this is the third jury selection date that we have set. And we will
proceed with the selection of the jury momentarily. You may say whatever
you would like to say, sir.
THE DEFENDANT: Sir, Your Honor, with all due respect, Your Honor,
he said many times. I have, just up to yesterday, he told me because the
government has not, has not offered me anything. I know the outcome of
my, of the charges that I am facing. And it is not because of that, Your
Honor. I have proof here where I sent to him a, a discovery that I filed, a
motion for a pretrial discovery, since the twelfth day of September, Your
Honor. If you want to see it, here it is. And I've got my discovery up to
like three weeks ago, Your Honor. I don't have enough time to prepare for
trial, Your Honor. And, like I said, our differences are too great. There
has been a detrimental breakdown in our communication that is beyond
repair, Your Honor. I would like to exercise my Sixth Amendment right
to adequate and effective representation, Your Honor.
THE COURT: Okay. Your motion for a new counsel was denied as
being untimely and as being filed solely for the purpose of delaying this
trial. So, this is the third time we changed the trial date based on motions.
THE DEFENDANT: Your Honor, but I was not aware of any of the
motions that have been filed, Your Honor.
THE COURT: Sir, you said that to me the last time and I gave you a
whole stack of papers at one of the earlier conferences. So, we're ready to
proceed. So, we need to get this gentleman some clothes. I've got a jury
that's been waiting down there, now, for over an hour.
THE DEFENDANT: I don't want this man to represent me, Your Honor.
THE COURT: You want to represent -- you've got two choices. You
want to represent yourself today?
THE DEFENDANT: No, sir. I would like to exercise my Sixth
Amendment right to adequate and effective counsel, Your Honor.
THE COURT: Motion's denied, sir.
THE DEFENDANT: With all due respect, Your Honor, I have not had an
enough time. I'm ignorant to this case, Your Honor. I'm in the dark.
THE COURT: Sir, I don't believe you, to be quite frank.
THE DEFENDANT: I have no reason to lie. I know the outcome of the
charges I am facing, Your Honor. I'm being truthful with you, Your
Honor, with all due respect.
THE COURT: What are we going to do about getting some this
gentleman some clothes to wear. He is in prison garb.
THE DEFENDANT: If this man is going to represent me, I don't want to
be here, Your Honor. I can't be here, Your Honor. I don't need this man.
I told you, we don't have any communication, Your Honor.
THE COURT: I appreciate knowing --
THE DEFENDANT: I'm being truthful to you, Your Honor. I don't feel, I
mean, --
THE COURT: Sir, would you kindly sit down?
THE DEFENDANT: Yes, Your Honor.
THE COURT: I've ruled on your motion. I'm trying to get you some
clothes so you're not here in orange. I have a tie for the gentleman, if he
needs it. What other clothes do we have coming?
MS. KRINGS [COURT STAFF]: We haven't heard back from Probation,
yet.
THE COURT: Well, somebody needs to go down to Probation,
physically, to see where the clothes are. Did you bring any clothes for the
gentleman?
MR. COX: No, Your Honor. I must confess. I had focused on that for
trial, but it escaped me for today. And I apologize to the Court.
THE COURT: That's fine. We've got ties. We've got a jacket.
THE DEFENDANT: Your Honor, I was not even made aware, Your
Honor, of asking any of my family for clothes. He haven't even told me
none of this, Your Honor.
MR. COX: Your Honor, he seems to have an unending supply of
complaints, but we never discussed clothes. He knew we were coming
here to be, to face the potential jurors.
THE COURT: That's fine. We're not debating. We're going to do our
best to try to find this gentleman some clothes today. So, if everyone sort
of sits down, we'll see what we can do to help work out this matter.
THE DEFENDANT: Your Honor, can you please see this paper, Your
Honor? That I have claimed to bring here, Your Honor?
THE COURT: Sure. Hand it up.
THE DEFENDANT: (Indicating.)
THE COURT: Okay. The defendant has handed me a document that
consists of four pages, dated September 12, 2016. Raises many of the
issues that he's raised before about so-called lack of information. Has the
government produced everything required to be produced, sir?
MR. NESCOTT: Everything, Your Honor.
THE COURT: You may remain seated, please.
MR. NESCOTT: Everything, Your Honor, including there was a
correction in an earlier report that I gave to defense counsel today. It was
a minor, minor correction.
THE COURT: All right. We'll direct that this document that the
defendant just handed to me to be also filed on ECF.
THE DEFENDANT: Your Honor, can I address the Court, please, Your
Honor?
MR. COX: No. Just a minute, sir. Your Honor, for the record, as the
defense counsel here, I have filed every single piece of paper that I've
gotten from the government I've sent a copy to the defendant. Where's you
copy of that?
THE DEFENDANT: Just discovery. I got it like three weeks ago, Your
Honor.
MR. COX: He got it, as I received it from the government, Your Honor.
THE COURT: Fine. Okay.
THE DEFENDANT: Your Honor, I need time to prepare for this, this
trial, Your Honor. I just got everything that I needed, Your Honor, three
weeks ago, as you see in that paper. I sent that motion to him on the
twelfth day of September, Your Honor.
THE COURT: Sir, you're just seeking to delay the trial. If this issue was
going on since September, then you should have raised it earlier. You
didn't --
THE DEFENDANT: I did not know, Your Honor.
THE COURT: Sir, you're talking over me and that it hard on the court
reporter.
THE DEFENDANT: I'm sorry, Your Honor.
THE COURT: You were here last week, you knew we were going to pick
a jury, and you never raised an issue. So, I'll ask the marshals to take you
back down till we get his clothing. Thank you, sir.
THE DEFENDANT: Your Honor, I just like to ask again, sir. Today I
want to exercise my Sixth Amendment right to effective and adequate
counsel, Your Honor. I need help, Your Honor. Can you please help me,
sir, as a United States citizen?
THE COURT: Sir, I've denied your motion. You've had extensive
continuances, including this being the third trial date. To me, it's obvious
to me you don't want to try this case, and we're going to go ahead and try
this.
THE DEFENDANT: I cannot have a lawyer that does not believe me,
Your Honor. That is ineffective counsel, Your Honor, with all due
respect.
THE COURT: Then the United States Court of Appeals for the Third
Circuit, I'm sure, will give your argument serious consideration, should a
jury find against you. Thank you, sir.
THE DEFENDANT: What does the government have to offer before we
go on to trial, Your Honor?
THE COURT: Sir, I'm not here to engage in plea bargaining back and
forth. If you don't like the government's offer, then you go to trial.
THE DEFENDANT: I don't even know what the government offer is,
Your Honor.
(Whereupon, Defendant was removed from the courtroom, and the
following was had in open Court.)
* * *
THE COURT: Defendant's back this the courtroom. He is now in civilian
clothing. Thank you, sir. Good to have you back.
THE DEFENDANT: Welcome.
THE COURT: So, I'm going to put on the record first about, at least in
general terms, the plea negotiations on behalf of the government. So, if
you can just give me a summary of the plea negotiations that have
occurred to date?
MR. NESCOTT: Your Honor, there have been no formal written offers.
There has been discussion about the parameters of the potential penalties
counsel has discussed with me many times.
THE COURT: Defense counsel?
MR. NESCOTT: Defense counsel. The mandatory minimum involved of
ten years and the fact that with a conviction on both counts, and depending
on any prior record, how it could range upward from there, I believe, to a
high of fifteen years may have been discussed. But the main point of the
discussions was that Mr. Cox informed me that the defendant wanted to
get a sentence that would be below what the conspirators, some of the
conspirators have received. In other words, they pled to a five-to-fifteen-
year Guidelines range for the cocaine. I told him, clearly, the government
could not offer this defendant, as the alleged supplier, less than that five-
to-fifteen kilogram range. That's, basically, where we were consistently.
As recently as a few days ago, Mr. Cox again asked whether anything else
could be done. And it's been the same response, that we can't [,] we
couldn't permit [this] defendant to plead to a quantity less than that of
those he was allegedly supplying.
THE COURT: Did you, as counsel for the defendant, pass this various
information and relating to the terms of any plea agreement to the
defendant?
MR. COX: I relayed them immediately, as soon as I received them from
the government, to the defendant.
THE COURT: On more than one occasion?
MR. COX: More than one occasion. Many occasions, including
yesterday.
THE COURT: All right.
THE DEFENDANT: Can I address the Court, Your Honor?
THE COURT: Sir. Yes.
THE DEFENDANT: Your Honor, with all due respect, up until right
now, did U.S.D.A. Nescott has spoken that I am aware of now of the plea.
I mean, I'm willing, I told my attorney to plead guilty, but I need plead
guilty to something reasonable, Your Honor.
And those are the issues, those are the issues that I want to bring up and
my waiting for the, to have rights to bring up these issues and motions that
have to be filed before, because I believe, Your Honor, I don't know if it's
found correct, trial would be the last option after exhausting all the options
I do have. I have not been given those options, Your Honor, before going
to trial.
THE COURT: Well, we're going to pick a jury this morning and then you
will have until, you'll have, today is Tuesday. So, you'll have Wednesday,
Thursday, and Friday to work something out with the government. And if
not, then we'll start the trial on Monday. So, you have three days to work
on this matter. But, obviously, the government believes that the prior
guilty pleas with other co-defendants somewhat limits the ability of the
government to negotiate something other than what they've done, what the
government's done with other defendants. I do, sir, want to warn you that
we're going to pick a jury. And if you're disruptive in this process, then
I'll have to order you removed from the courtroom. So, I encourage you to
work with your attorney. I encourage you to stay seated. But if you
become disruptive, then I will be forced to, unfortunately, to have you
removed. Do you understand, sir?
THE DEFENDANT: Yes, Your Honor. I'm sorry. I apologize for the
way I acted right now, Your Honor. I just wanted to, you know, for it to
be known the way that I feel, Your Honor.
THE COURT: Okay. Fine. I understand, but I also want to make sure
that you can lose your right to be present at trial if, after being warned,
that he will be removed if he continues the disruptive behavior. If he,
nevertheless, continues conducting his disorderly and disrespectful
behavior to the court, that the trial cannot be carried on with him in the
courtroom. If you lose that right and you are removed, you can reclaim
that right at any time as long as you are willing to conduct yourself with
the decorum and respect inherent in the concepts of the Courts and judicial
proceedings. Understand, sir?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. I would ask that the jury pool be brought up.
MR. NESCOTT: For the record Your Honor. The Court just stated the
trial would start next Monday. That, of course, is Washington's birthday.
We're scheduled to start next Tuesday.
THE COURT: Thank you for that correction. Thanks. We are starting
with Tuesday, which is one of the reasons why we're picking the jury a
week ahead of time, so the jurors will already be selected and we can start
promptly on next Tuesday with the trial. Thank you for that correction.
Okay? Deputy Clerk will go down get the jury.
* * *
(Whereupon, the jury was retired to the jury room,
and the following was had in open Court .)
THE COURT: Anything else, on behalf the government?
MR. NESCOTT: Nothing else, Your Honor.
THE COURT: Defendant?
MR. COX: No. Thank you, Your Honor.
THE COURT: Okay. Do you want him to stay down there for a little bit,
so you can go down, chat with him? Or have you had enough time to chat
with him.
MR. COX: No, Your Honor. I have the flu so bad, I want to get home
and see you in a couple days.
THE COURT: Again, you have Wednesday, Thursday, Friday, or you all
will chat to the extent that you wish to; all right? Take care. Everyone
should remain seated. The marshals may remove the defendant.
Id.
Following the lengthy jury selection day discussion among the Court, counsel for the
both parties and Lozano, the Court next convened on Tuesday, February 21, 2017, to begin the
trial in this matter. However, before the jury was seated, Lozano indicated that he wanted to
plead guilty. ECF 400. As a result, the first day of what would had been a trial, became a
change of plea hearing. The following transcript segments highlight the pertinent parts of the
change of plea hearing:
THE COURT: The Court is informed that you wish to change the plea
you previously entered to a plea of guilty to one count of conspiracy to
distribute and possession with intent to distribute five kilograms or more
of a mixture and substance containing a detectable amount of cocaine, a
Schedule II controlled substance, in violation of Title 21, United States
Code Section 846, and to plead guilty to one count of conspiracy to
launder monetary instruments, in violation of Title 18, United States Code,
Section 1946(h). Is that correct, sir?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you have had more than adequate time to discuss this
matter over a lengthy period of time, including today with your counsel;
correct?
THE DEFENDANT: Well, we just discussed about this agreement right
now, Your Honor. Yes.
THE COURT: But he has been discussing with you the pros and cons our
defense counsel has been discussing with you throughout this case, the
advantages and disadvantages of the benefits and risks of whether to plead
guilty or not; correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Including up until today?
THE DEFENDANT: Yes, Your Honor.
* * *
THE COURT: On behalf the government, would you please place on the
record the evidence that would be offered by the government as to these
two charges? If you need a few moments to gather your papers, that's
fine.
MR. NESCOTT: Yes, Your Honor. I'll just ask for a couple moments.
The government is ready to proceed, Your Honor.
THE COURT: You may.
MR. NESCOTT: Your Honor, the government is prepared to prove
through calling of a series of witnesses that before 2011, a man by the
name of George Biscey, B-I-S-C-E-Y, was a cocaine distributor here in
the Western District of Pennsylvania. He supplied Jeffrey Turner and
other people with quantities of cocaine for use and resale.
In 2011, Mr. Biscey was arrested and convicted of distribution of
cocaine. He was sentenced to a term of prison. At that time, he contacted
Mr. Turner and told Mr. Turner that he wanted Turner that he wanted
Turner to take over for him and he supplied the contact number for this 24
defendant, Dante Lozano, although, Lozano was only known by the initial
D to Turner at this time.
Mr. Turner, and also Mr. Biscey, provided Turner with the contact
number of a postmaster up here in Western Pennsylvania at the West
Newton Office, Joseph Borelli. Mr. Turner, ultimately, got in contact with
D, this defendant, and Mr. Borelli.
At one point, Mr. Lozano agreed to start supplying cocaine to
Turner. At first, Turner had to send four thousand dollars down for the
first four ounces or so that were supposed to come up here.
That deal went through and at sometime thereafter the dealing
began on a regular basis with packages of cocaine arriving here, two to
four times a month or more from Mr. Lozano, weighing four and a half up
to nine or ten ounces each time, and payments in thousands of dollars were
sent back to Texas.
For a period of six months, those dollars, those drug proceeds,
were sent back to Lozano through money orders purchased up here by
Jeffrey Kettering and by his uncle, William Colson, at the direction of Mr.
Turner. They would purchase the money orders at eleven different Post
Offices in the Mon Valley area of Western Pennsylvania, buying only
nineteen hundred dollars or so at a time, in two postal money orders each
time, sending them down to Texas with blank names of seller of a
purchaser and receiver. And those names would be filled in in Texas,
commonly with the name Hugo Balboa, a co-conspirator in this case, and
another several other Balboa names and some other names.
The directions to send the money orders back were all given by
Mr. Lozano by text. He texted where he wanted them sent to a Jeffrey
Turner and April Racan and then they would fill out the envelopes and
send them down to Texas.
The period of this cocaine dealing went on from 2011 until
December 23 of 2014. Again, the number of packages was estimated to
be as many as a hundred or a hundred and fifty during that period of time.
And this conspiracy almost came to a halt by December 23 when a
package was intercepted coming from Texas to an address on Dalewood
Drive in McKeesport, the home of April Racan's parents.
It was intercepted by Postal Inspector Stephen Celletti. He got a
federal search warrant. It was opened and found to contain about a quarter
kilo of cocaine. The package was controlled delivered. April Racan was
arrested [] she admitted her knowledge of what was going on, her and her
role in having these packages of cash sent down to Texas to Lozano.
Lozano, again, would send, would text the addresses where he
wanted the cash sent [] then the labels would be filled out usually by April
Racan.
Jeffrey Turner was apprehended a few days later and he admitted
also that he had been doing this for years, with D, the man he knew in
Texas.
Both Turner and Racan would testify that they met D when he
came to Western Pennsylvania on at least one occasion. He stayed for a
month or two with George Biscey they saw him there. They partied with
him. They saw him numerous times on that visit. Also, on one occasion,
April Racan took the defendant to Blainhill Volunteer Fire Company,
which was the hangout for these people, the local hangout for these
people.
After the package was intercepted in McKeesport, postal
inspectors had April Racan contact Lozano [and] tell him that she didn’t
have all his money for that package, because they, obviously, did not tell
him it had been intercepted. She said she could send him the twenty-five
hundred dollars.
There followed a series of text messages between April Racan and
Mr. Lozano on Racan's phone on which she identified as Lozano's phone.
Those texts would have been presented here in Court. Basically, in those,
Mr. Lozano indicates his unhappiness over the amount of money she's
sending, that his people are upset with him, she had to send it as soon as
possible. He refers to his April on the call. He refers to the amount, the
twenty-five hundred dollars and he gives her the address where she should
send this package of cash. The cash is packaged up [and] sent down to
Texas to the address. But, unfortunately, surveillance could not find who
picked up that package, it was lost at that point.
Mr. Borelli, the postmaster -- bless you. Mr. Borelli would testify
that he had been recruited by George Biscey to get addresses where the
cocaine could be sent over a period of years. That is to say, empty homes,
where it could be addressed there, to A post office box that he set up. And
when the packages came into the post office, Mr. Borelli would intercept
them. When they're on the table with the mail being sorted, he usually
grabbed them at that point [and] then delivered them to, first, Mr. Biscey
[and] then to Mr. Turner 2 Ms. Racan.
At some times, they were delivered to the empty homes [and]
Turner or Racan would pick them up there. Mr. Borelli also would testify
that he advised Turner, and Racan, [and] Biscey not to send more than
twelve, thirteen thousand dollars, not to -- I'm sorry -- not to purchase
money orders in high amounts because they would be tagged [and]
watched by the Post Office.
On the other end of things, the government is prepared to call
Daniel Cosme, who is the manager of a Dairy Queen at South Padre
Island, Texas, not far from Brownsville, Texas, where most of the other
activity was taking place and where Mr. Lozano lived. Mr. Cosme would
testify that he was approached by Lozano and asked to accept packages for
Lozano at the Dairy Queen, since he was the manager. He did so. The
first few packages he found were pornographic materials, but then he
became suspicious. When he spoke with Lozano, Lozano to pay him up to
three hundred dollars per package that he accepted for Lozano. And Mr.
Cosme would then deliver the packages that came in for Lozano. He
suspected it was cash of some sort or money orders, but he didn't know.
But he delivered them to Lozano and he was paid for doing that.
Mr. Cosme would also testify that frequently the packages came in
the name from a sender Sarah Post. [And], in fact, Ms. Racan would
testify that that is a name that she commonly used to send cash down to
the Dairy Queen and she put Sarah Post on the envelopes.
Further, from the Texas end of things, Your Honor, there were four
other incidents that should be mentioned that the government would call
witnesses from Texas to testify.
First, that on the eighth of April of 2014, surveillance was set up
on Dante Lozano as he went to different locations in the town of
Brownsville. They got a surveillance photo or several of him walking
around in a white T-shirt. Agents then followed him into two Post
Offices. There were two Post Offices in Brownsville [and] the first he
went into was the Las Evanos Post Office in Brownsville. He was in there
filling out an envelope or a postal envelope and they watched him over by
a machine where you can fill out the label and pay the postage and mail
the thing without ever approaching a teller or worker in the office.
Mr. Lozano, on that date, filled out a label [and] sent a package up
here to Western Pennsylvania to one of the addresses that had been
provided to him by Postmaster Borelli. That label was copied by this
machine [and] retrieved by Postal Inspector Celletti. Also, there was a
picture of Mr. Lozano standing above that machine, blurry, but still you
could see a man in a white T-shirt and bald head, which matched the
description of a man who was standing at the machine at that time and
identified by agents in Texas as Dante Lozano.
The agents then followed Mr. Lozano to the second Post Office,
where he also walked in with an envelope [and] was doing something with
that envelope.
Secondly, in Texas, on the tenth of September of 2014, agents
were up on surveillance of Mr. Lozano. They watched him go to the
house. Actually, they were up on a house of the suspected supplier of
cocaine. They watched Lozano go in, [and] come out, get in his car. He
was driven away by his wife or girl friend. A few blocks away, the car
was stopped. Agents watched as he opened the hood, took something out
from the car, and placed it under the hood, and then closed the hood.
Shortly thereafter, there was a traffic stop on Mr. Lozano and
agents found inside the hood, under the hood, inside the air filter
compartment, about a quarter kilo of cocaine in two bags. And that
cocaine, as well as all the other drugs seized in this case, the fact that it
was cocaine the amount would be stipulated to by the defense.
The defendant, at this time, gave a signed statement to investigator
Carlos Martinez, admitting that he had picked up this cocaine and offering
to cooperate against his supplier.
Five days later, DEA called, DEA in Brownsville called, Mr.
Lozano [and] told them they were looking at an investigation, would he
mind stopping in to talk with them. He agreed to do so. He stopped by.
He waived his Miranda rights and they had a short discussion with them.
He didn't admit too much of anything, but he did say at one point that he
wanted to get out of the life of crime so he could be a good father to his
young daughter.
And the final event in Texas, about which there would be
testimony, is that on the fourth of December of 2014, a gift shop in
Brownsville received a large package in a big envelope that had bee[n]
returned for lack of postage. It had been mailed from Brownsville, sent to
an address up here in Pittsburgh, but it never made that it far.
The owner of the shop, Diana Mauso, would testify that she
opened that package [and] she didn't remember sending it, even though it
carried the return address of her gift shop. She opened it [and] found about
a quarter of kilo of cocaine inside that package. Or what she thought was
cocaine.
She called it to the attention of her husband, who was then an
assistant district attorney. He called the police. The police, DEA, came
in. They picked up the package. They sent it to the lab. And the
postmaster up there would indicate that the address where that package
was going was an address that he had supplied to Dante Lozano to send
his drugs up here.
That is a rather long summary, but that is a summary of the
evidence the government is prepared to present, Your Honor.
THE COURT: What do you understand the stipulation is as to the amount
of the drugs?
MR. NESCOTT: Well, there are six separate stipulations, Your Honor.
THE COURT: Would you kindly be able to read those on to the record,
now?
MR. NESCOTT: Yes. Yes, Your Honor. The, first, actually --
THE COURT: Mr. Lozano, pay really careful attention to what's being
read now, please.
MR. NESCOTT: Well, this, of course, is a summary here, is a small
portion because it's a conspiracy, the total amount.
THE COURT: Understand.
MR. NESCOTT: But, in any case, the first three stipulations are to sales
made by co-defendant Brian Kettering to the Attorney General's Office.
The stipulation is that from the controlled buy on November 15, 2012, the
total weight was 27.4 grams, positive for cocaine. That would be about
one ounce.
The second stipulation is that on January 14, 2013, there was a
controlled buy from Brian Kettering by the Attorney General's Office.
And that cocaine weighed 55.9 grams or about two ounces.
The third stipulation is that on April 30, 2013, there was a seizure
from Brian Kettering in Rostraver Township of one hundred and sixty-five
grams. Excuse me. Or about six ounces of cocaine, positive for cocaine.
Mr. Kettering would testify that, yes, he made all these sales of cocaine he
got from Jeffrey Turner and Turner from this defendant.
The fourth stipulation has to do with a controlled buy that Frank
Kettering made from Jeffrey Turner on April 24, 2014, once Kettering
started working with the officers in this case. [And] that controlled buy
was, weighed [and] found to be 28.2 grams or about one ounce of cocaine.
The fifth stipulation has to do with the seizure from the air filter
compartment of black Chevy Blazer in Brownsville Texas, in which
defendant was a passenger on September 10, 2014. It weighed 250.95
grams or one quarter kilogram.
The final stipulation has do with the package delivered to
Dalewood Drive, McKeesport, on December 23, 2014. That was a
package that was intended for April Racan. The contents, 246.23 grams or
nearly a quarter kilogram, positive for cocaine.
Those are the stipulations, Your Honor.
THE COURT: Sir, in a moment, I will ask you about whether you agree
with the government summary of what you did, but, first, you understand
your answers may be used against you in a prosecution for perjury or of
making a false statement if you do not answer truthfully?
THE DEFENDANT: Yes Your Honor.
THE COURT: Do you agree with the prosecution summary of what you
did?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are there any additions or corrections you wish to make?
THE DEFENDANT: Not at this moment.
THE COURT: Well, now would be the time if you want any additions or
corrections. So, you might want to take a few moments to talk to your
attorney, please.
(Whereupon, an off-the-record discussion was had.)
THE COURT: Thank you for doing that.
THE DEFENDANT: I'm prepared, Your Honor. Sorry about that.
THE COURT: No problem. Did you have have enough time to talk to
your attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are there any additions or corrections you wish to make?
THE DEFENDANT: No, Your Honor.
THE COURT: The Court finds that there's a factual basis to accept
defendant's plea of guilty to the two offenses charged in the indictment.
Sir, having been advised of all your rights, do you still intend to plead
guilty today?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Counsel, is this consistent with your advice?
MR. COX: It is, Your Honor.
THE COURT: Sir, has anyone forced you in any way to enter a plea of
guilty to these charges?
THE DEFENDANT: No, Your Honor.
THE COURT: Did you make this decision to plead guilty of your own
free will and voluntarily?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you understood everything we've discussed here
today?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you ever had any physical or mental illness that
affects your ability to understand these proceedings or my explanation of
your rights?
THE DEFENDANT: No, Your Honor.
THE COURT: Counsel, do you have any doubt about the defendant's
competency to plead guilty?
MR. COX: No, Your Honor.
THE COURT: Sir, are you completely satisfied with your attorney's
advice and representation?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is there anything you have asked him to do that he hasn't
done?
THE DEFENDANT: No, Your Honor.
THE COURT: Has he done everything you have asked him to do?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Counsel, I'm going to review what I understand to be the
maximum sentence I'm authorized to impose under the law for these two
counts. So, would you follow along with me and make sure I get it
accurate, please?
THE DEFENDANT: Yes.
THE COURT: sir, the maximum sentence I'm authorized to impose under
the law, including any applicable mandatory minimums, for the
commission of these offenses which you intend to plead guilty is, at Count
One, a term of imprisonment of not less than ten years, to a maximum of
life imprisonment, a fine not to exceed ten thousand dollars, a term of
supervised release of at least five years.
For a second felony drug conviction that is final, whether federal,
state or foreign, a term of imprisonment of not less than twenty years to a
maximum of life, a fine of not to exceed twenty thousand dollars, and the
term of imprisonment of at least, term of supervised release of at least ten
years.
For a third or subsequent felony drug conviction that is final,
whether federal, state, or foreign, a mandatory sentence of life
imprisonment, and a fine not to exceed -- what is the dollar amount?
MR. NESCOTT: The amount is twenty million dollars.
THE COURT: Okay. As to Count One, first time, is ten million dollars?
MR. NESCOTT: The first time is ten million dollars, As to the second
and subsequent, Your Honor, the government has not filed an 851
information in this case and does not intend to. So, they would not apply.
Only the first offense would.
THE COURT: Okay. So, is the government saying that as to Count One
the term of imprisonment is not less than ten years, to a maximum of life,
a fine of not to exceed ten million dollars, and a term of supervised release
of at least five years?
MR. NESCOTT: That's correct, Your Honor.
THE COURT: And as to Count Two, a term of imprisonment of not more
than twenty years, a fine of not more than five hundred thousand dollars,
or twice the value of the property involved in the transaction, whichever is
greater, and that the sentence includes a term of imprisonment. The
Court may impose a period of supervised release of not more than three
years.
Also, there's a special mandatory special assessment of one
hundred dollars which must be imposed at each of the two counts upon
which the defendant is pleading guilty.
Sir, do you understand the potential sentence the Court is
authorized to impose?
THE DEFENDANT: Excuse me, Your Honor. I didn't hear you. I'm
sorry.
THE COURT: Do you understand, do you understand the potential
sentence that the Court is authorized to impose as to these two counts?
THE DEFENDANT: Yes, Your Honor.
* * *
THE COURT: Do you understand I’m required to consider the Guidelines
adopted by the United States Sentencing Commission before reaching an
appropriate sentence, but that those Guidelines are advisory and not
binding on this Court?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you and your attorney discussed how the Guidelines
might apply in your case?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand the Court will not be able to
determine your advisory Guideline sentence until after I review the
presentence investigation report and you and the government have had an
opportunity to challenge the reported facts and the Probation Office's
calculation, application and calculation of the Guidelines?
THE DEFENDANT: Yes, Your Honor.
THE COURT: What is the government's position as to the applicable
advisory Guideline range?
MR. NESCOTT: Your Honor, the Guidelines range for the drugs
involved here are five to fifteen kilos. The basic offense level is 30. The
money laundering conspiracy count, because it involves the additional two
levels for a conspiracy, the Guidelines range would be 32, total Guideline
range. For acceptance of responsibility, the defendant would be for two
points and not the third, because the trial was prepared for. That would
reduce it back down to a level 30. The prior criminal history appears to be
a category IV, based on two priors and the fact that he was on probation
when he committed this crime. Bottom line is that a plea would be a level
30, Roman Numeral IV, or one hundred and thirty-five or one hundred and
sixty-eight months.
THE COURT: What is the defendant's position, on behalf of counsel?
MR. COX: Your Honor, the defense, basically, accepts the government's
assessment, level 32 on the money laundering and level 30 on the drugs.
There may be some difference of opinion about the criminal history
category being IV. I haven't had an opportunity to look and, you know,
parse each prior conviction to determine whether they're eligible for
consideration for a criminal history point and would properly apply.
So, we accept the statement of the government as to its calculations, but
reserve argument on the criminal history category.
THE COURT: Once the presentence investigation report is prepared?
MR. COX: Yes.
THE COURT: Understand, sir, the discussion we've just had on the
Guideline range?
THE DEFENDANT: Yes Your Honor.
THE COURT: Do you understand that after your initial advisory
Guideline range has been determined, the Court has the authority in some
circumstances to depart upward or downward from the range and will also
examine other statutory sentencing factors under Title 18, United States
Code, Section 3553(a), that may result in the imposition of a sentence that
is greater or lesser than the advisory Guideline sentence?
THE DEFENDANT: Yes, Your Honor.
II. Standard of Review
Section 2255 of Title 28 of the United States Code provides that:
(a) A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a).
Further, Section 2255 provides that the Court shall grant a prompt hearing unless
Petitioner’s Motion to Vacate, and the files and the records in this case “conclusively show that
the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b).
When a defendant brings a motion to vacate sentence pursuant to Section 2255, the
district court is required to hold an evidentiary hearing on a motion to vacate sentence unless the
motion and files and records of the case show conclusively that the movant is not entitled to
relief. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (emphasis added), citing United
States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). In exercising that discretion, “ ‘the court must
accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis
of the existing record.’ ” Lilly, 536 F.3d at 195, quoting Gov’t of the Virgin Islands v. Forte, 865
F.2d 59, 62 (3d Cir.1989). “The court should view the factual allegations in the light most
favorable to the petitioner.” United States v. Smith, 101 F.Supp.2d 332, 341 (W.D. Pa. 2000),
citing Gov’t of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir.1994).
Finally, a pro se pleading is held to less stringent standards than pleadings drafted by
attorneys. Estelle v. Gamble, 429 U.S. 97 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
Thus, a pro se habeas petition should be construed liberally. See Royce v. Hahn, 151 F.3d 116,
118 (3d Cir. 1998).
III. Lozano’s Section 2255 Petition4
As noted above, Lozano filed a pro se motion to vacate, set aside, or correct a sentence
pursuant to 28 U.S.C. § 2255 setting forth seven grounds for vacatur or correction.
A. Lozano was essentially “lured” into not taking his case to trial, accepting a plea
offer, and on the day the sentencing hearing “the offer was changed” resulting in a
higher guideline range.
Lozano begins by claiming he was essentially “tricked” or “lured” into taking a “plea
offer,” instead of “taking his case to trial,” and at the sentencing hearing the “offer was
changed,” so that he received an enhancement which resulted in a higher guideline range.
The Court begins its analysis by noting that there were several conferences held in open
Court, with Defendant present, prior to jury section on February 14, 2017, and the start of trial on
February 21, 2017. These have been described above in Section I.B. in great detail.
4 Based on the facts of this case as discussed more thoroughly herein, this Court finds it is not
required to hold an evidentiary hearing because the motion and files and records of the case
conclusively show that Petitioner is not entitled to relief.
After four status conferences had been held (on August 15, 2016, November 21, 2016,
January 4, 2017, February 7, 2017), Lozano and his counsel were still considering taking a plea,
but they were simultaneously preparing for trial. There had been discussions among the
Government, Lozano, and Lozano’s counsel before this Court (during the various status
conferences this Court held in 2016 and 2017), all prior to jury selection in this case, as to
whether Lozano would accept the Government’s plea offer. However, during these 2016
conferences, Lozano’s counsel made it known to this Court that Lozano was not satisfied with
the Government’s plea deal offers. ECF 396.
A jury was chosen on February 14, 2017 and the trial was to begin the following week on
February 21, 2017. However, on February 21, 2017, Lozano took an open plea. There was no
plea agreement executed between Lozano and the Government. As a result, Lozano could not
have been “lured” into “a plea deal,” because his guilty plea was made without a plea agreement.
Additionally, on February 21, 2017, during his change of plea hearing, Lozano testified
under oath that he was not “forced” to plead guilty, and that he understood the maximum
potential sentence which this Court could impose.5 See ECF 400. Moreover, Lozano testified
during this hearing that he understood what he was giving up by pleading guilty and he further
claimed to have had adequate time to discuss the implications of pleading guilty with his
attorney. Id. Lozano further indicated that he understood that the guideline range which his
counsel and the Government discussed was advisory only. Id. Government and Lozano’s
counsel indicated what their belief was as to the applicable guideline range during the change of
plea hearing and placed Lozano at either an offense level of 30 or 32. Id. However, the Court
cautioned Lozano that the Court would not be able to determine his actual advisory Guideline
5 The Court specifically stated that the potential maximum to which the Court could sentence Lozano at Count one
was a minimum of 10 or 20 years to life imprisonment depending if Lozano’s Count one offense was his first or
second felony drug conviction; and, a mandatory life sentence if it was his third felony drug conviction.
sentence until after the presentence investigation report was prepared and Lozano, his attorney
and the Government had an opportunity to challenge the reported facts in the report along with
the Probation Officer’s calculation and application of the Guidelines. Id.
Because there was no plea agreement in this case, and because this Court found, during
the change of plea that Lozano was competent and knowingly understood what he was doing by
taking a guilty plea, the Court now finds that his first argument lacks merit and Lozano’s Section
2255 Petition will be denied on this ground.
B. The Court miscalculated the guideline range when it included the four-level
enhancement when co conspirators’ interviews, and court proceedings demonstrate
that Lozano was not the organizer/leader.
C. The United States probation officer erroneously included a four-level
enhancement to Lozano’s sentencing guideline offense level based solely upon his
“belief” and not “facts” that Lozano was an organizer/leader.
D. The District Court erred in imposing the four-level enhancement during
sentencing, creating a sentence disparity among Lozano and his seven other Co-
Defendants.
E. Undue bias, prejudice, and influence, and not being within the probation
officer’s jurisdiction influenced this Court to issue the higher guideline range
without evidence to support his claim.
The Court will analyze these four arguments together, as they all relate to the four-level
enhancement Lozano received due to his role as an “organizer” pursuant to United States
Sentencing Guideline, § 3B1.1.
This section of the guidelines reads as follows:
Based on the defendant’s role in the offense, increase the offense level as
follows:
(a) If the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive, increase by
4 levels.
(b) If the defendant was a manager or supervisor (but not an organizer or
leader) and the criminal activity involved five or more participants or was
otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in
any criminal activity other than described in (a) or (b), increase by 2
levels.
U.S.S.G. § 3B1.1. The commentary to this section specifically states:
In distinguishing a leadership and organizational role from one of mere
management or supervision, titles such as “kingpin” or “boss” are not
controlling. Factors the court should consider include the exercise of
decision making authority, the nature of participation in the commission of
the offense, the recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal activity, and the
degree of control and authority exercised over others. There can, of
course, be more than one person who qualifies as a leader or organizer of a
criminal association or conspiracy. This adjustment does not apply to a
defendant who merely suggests committing the offense.
Commentary (4) to U.S.S.G. § 3B1.1.
Following Lozano’s guilty plea on February 21, 2017, the Court ordered that a
presentence investigation report be conducted. ECF 373. After the report was finalized, Lozano,
through his attorney objected to paragraph 15 of that report. ECF 376. Paragraph 15 reads as
follows:
15. The governing guideline for Count 1 is USSG § 2D1.1. Under this
guideline, the base offense level is 30 based on the drug amount
of 8 kilograms of cocaine. USSG§2D1.1(c)(5). The base offense
level is increased by 2 levels, because he made a credible threat to use
violence, pursuant to §2D1.1(b)(2). The offense level is also
increased 4 levels for his role in the offense as an organizer/leader,
pursuant to §3B1.1(a). The adjusted offense level for this count is 36.
Id.
The Court reviewed Lozano’s objection as well as the addendum to the presentence
investigation report prepared by the probation officer which stated as follows:
Based on the facts of the case, it appears that the defendant was an integral
leader in the conspiracy and is deserving of the organizer/leadership role
enhancement. He was responsible for establishing a drug distribution and
money laundering network in order to carry out the criminal activity. In
order to operate the conspiracy over an extended period of time, he
used/recruited seven co-conspirators (i.e. April Racan, paragraph 7); he
had to control his buyers to ensure they paid him; he used threats of
violence to make sure they did not talk to law enforcement; and he
directed multiple co-conspirators to use various bank accounts to
launder the money. In addition, the structuring of the money laundering
activities lends credibility to the fact that he was receiving the larger share
of the fruits of the crime. For these reasons, the probation officer believes
the sentencing guidelines, including the aggravating role enhancement,
were appropriately calculated.
ECF 382.
Given the admissions made by Lozano during his change of plea hearing and the
statements set forth by his probation officer in the presentence report addendum, this Court
issued tentative findings of fact one week before Lozano was sentenced. The Court’s tentative
findings read, in relevant part, as follows:
Turning now to the instant matter, the Court begins its analysis by noting,
importantly, Defendant’s Objection does not object to the facts set forth in
paragraphs 4 through 9 of the Presentence Investigation Report. Doc. no.
373. Because Defendant raised no objections to these paragraphs, the
Court finds the following as undisputed facts:
1. Defendant met Racan in 2006/2007 through George Biscey, a known
drug distributor and friend of Turner. Doc. no. 373, ¶ 7.
2. After 2006/2007, Defendant made periodic visits to Elizabeth,
Pennsylvania, and would stay “months at a time” with Bicsey. Id.
3. Defendant was a source of supply for Bicsey. Id.
4. After Biscey was arrested and incarcerated in 2011/2012, Defendant
called Racan and asked her if she was “interested in making some
money[.]” Id.
5. Racan and Turner agreed to purchase cocaine from Defendant.
6. Turner and Racan paid $1,000.00 per ounce of cocaine and received
anywhere from one to seven ounce packages of cocaine through the mail.
Id.
7. On December 23, 2014, a package of cocaine was being shipped to
Racan’s parent’s house but was intercepted by U.S. Postal Inspectors, who
proceeded to confront Racan about the package. Id.
8. In order to pay for the cocaine, Racan and Turner initially used postal
money orders, between March 2012 and August 2012. Doc. no. 373, ¶ 6.
9. Postal receipts recovered showed Racan and Turner sent $116,700
worth of money orders. Id.
10. Defendant instructed Racan and Turner to send the money orders to a
Dairy Queen (“DQ”) address in Brownsville, Texas, where a DQ manager,
Daniel Cosme, would receive them. Id.
11. Cosme, who was paid to receive the money orders, would turn them
over to Defendant. Id.
12. Defendant then paid Hugo Balboa to put the money into various
accounts controlled by Defendant. Id.
13. In August of 2012, Racan and Turner began using cash for the
transactions, and it was estimated that as much as twenty-thousand dollars
at a time was being sent back to Defendant. Id.
14. In 2014, after being confronted by DEA agents in Texas about his
involvement in cocaine distribution, Defendant called Racan and
threatened her and her family if she was “cooperating with the cops.”
Doc. no. 373, ¶ 8.
These undisputed facts highlight that Defendant recruited Racan and/or
Turner to assume Biscey’s role (after Biscey was incarcerated) as a
dealer/distributor of cocaine within the Commonwealth of Pennsylvania.
Defendant also instructed Racan and Turner where to send the money
orders which Racan and Turner initially used to purchase the cocaine.
Furthermore, Defendant hired Cosme to receive the money orders and
cash mailed by Racan and Turner. Defendant also hired Balboa to take the
money orders and cash and deposit them into various bank accounts over
which Defendant had control.
II. TENTATIVE FINDINGS OF FACT
Based upon theses undisputed facts, the Court now tentatively finds as fact
the following relevant to Defendant’s Objection:
15. The Court finds as fact that Defendant held the primary decision-
making authority in this conspiracy.
a. First, Defendant actively sought to replace Biscey after Biscey was
incarcerated. To this end, he actively sought out and then recruited Racan
(and/or Turner through Racan) as conspirators who would purchase and
possess and/or distribute cocaine in the Western District of Pennsylvania.
b. Second, Defendant recruited Cosme and Balboa to launder the money
orders and cash he received from Racan and Turner as payment for the
shipments of cocaine.
16. The Court finds as fact that Defendant had the highest degree of
participation in planning and organizing the conspiracy because he “hired”
all of the “key” players – Racan/Turner in Pennsylvania, and Cosme and
Balboa in Texas.
17. The Court finds as fact that the nature and scope of these activities was
broad and far- reaching in that Defendant caused the cocaine to be shipped
in interstate commerce through the United States Postal Office. Defendant
also required that the funds/proceeds from the illegal purchase of the
cocaine be shipped in interstate commerce through the United States
Postal Office to a person/business he designated so as to avoid detection.
Defendant, therefore, caused the cocaine to travel an extensive distance
(from Texas to Western Pennsylvania) and further caused money orders to
be sent an extensive distance (from Western Pennsylvania to Texas) as
payment for the cocaine.
18. The Court further finds as fact that Defendant had control and
authority over Racan, Turner, Cosme, and Balboa. In addition, when
pecuniary gain for the co-conspirators (specifically, Racan and Turner)
was waning in light of the DEA investigation, Defendant resorted to
threats of violence against Racan and her family in an attempt to ensure
obedience to his orders.
19. Finally, as noted by the Probation Office in its Addendum to the
Presentence Investigation Report (see doc. no. 382), prepared in response
to Defendant’s Objection, the Court finds as fact, that Defendant’s control
and structuring over the money laundering activities is evidence that he
was receiving the larger share of the fruits of the drug crime.
III. RULINGS
Based on the above undisputed findings of fact and the tentative findings
of fact, the Court tentatively rules that Defendant was an organizer/leader
of the two offenses to which hehas pled guilty. Because of Defendant’s
organizer/leadership role, the 4-point enhancement to the offense level as
assessed by the Probation Office was both warranted and appropriate.
The Court’s tentative ruling necessarily finds that Defendant was an
organizer/leader of a cocaine distribution chain which emanated with
Defendant in Texas, extended across state lines all the way to the Western
District of Pennsylvania, and was a chain that he sought to continue after
his Pennsylvania purchaser (Biscey) was incarcerated, which caused
Defendant to actively recruit Racan (and/or Turner) to fill Biscey’s
vacancy. The Court’s ruling is also predicated upon the fact that
Defendant directed Racan and Turner to pay for the cocaine by using
money orders (and later cash), and by requiring Racan and Turner to ship
the monies to a Dairy Queen address in Texas which was managed by
another one of Defendant’s recruits – Cosme. The Court’s ruling is also
supported by the fact that Defendant had another person in Texas whom
he controlled, Balboa, deposit the funds Cosme received into various bank
accounts controlled by Defendant to escape personal detection.
All of these facts illustrate that it was Defendant who orchestrated this
extensive and intricate plan to move cocaine from Texas to Pennsylvania
and receive funds for that cocaine in such a way so as to avoid detection
from law enforcement authorities.
Accordingly, the Court will tentatively overrule Defendant’s Objection to
paragraph 15 of the Presentence Investigation Report and apply the four-
point enhancement to Defendant’s
offense level.
ECF 386.
During Lozano’s sentencing hearing these tentative findings were adopted as final, and
thus, this Court overruled Lozano’s objection to the four-level enhancement. Simply stated, the
evidence was both clear and abundant to this Court that Lozano was a leader, organizer, and
manager of the drug distribution as well as the money laundering schemes.
Following the sentencing hearing and the entry of Judgment, Lozano appealed this
Court’s decision to apply the four-level enhancement to the United States Court of Appeals for
the Third Circuit. See United States v. Lozano, 745 Fed. Appx. 466 (2018). The Court of
Appeals affirmed this Court’s decision to apply the enhancement noting:
Although the court must base any Chapter Three enhancement on the
money laundering offense, neither the unambiguous text of the relevant
Application Note, nor common sense, requires a sentencing court to turn a
blind eye to the underlying conduct in fashioning an appropriate sentence.
Here the court concluded that the record established that Lozano was an
organizer or leader of both the drug conspiracy and the money laundering
conspiracy, and nothing in the applicable Guidelines or the relevant
Application Notes prevents the court from reaching that conclusion on this
record.
Moreover, the court correctly concluded that the facts underlying
Lozano’s plea to the money laundering conspiracy alone established that
he had “hired all of the key players,” that the “nature and scope of the
activities was broad and far-reaching,” and that Lozano had “control and
authority” over members of both the drug conspiracy and the money
laundering conspiracy.
Id. and ECF 404-1.
Based on the foregoing, the first of the three specific arguments raised by Lozano is
without merit. Both this Court and the Court of Appeals have determined that the 4-level
enhancement was appropriately applied pursuant to USSG 3B1.1. Lozano’s second argument
concerns the probation officer’s calculation of Lozano’s offense level which included the four-
point enhancement. This argument is moot as this Court and the Court of Appeals have both
determined that the application of the four-level enhancement was appropriate.
Simply put, the evidence which the Government explained included copies of money
orders and live witness testimony from at least five of Lozano’s co-conspirators (and it is
noteworthy that Lozano’s counsel was shown copies of the witnesses’ reports), provided the
requisite proof that Lozano was the leader or organizer of this drug distribution operation.
F. Lozano’s sentence was unreasonable “per the Sixth Amendment based on the
preponderance of evidence.”
Lozano’s presentence investigation report indicates that Lozano, due to his criminal
convictions had a subtotal criminal history score of five. However, because Lozano committed
the instant offense while on probation in Cameron County, Texas, for unlawful possession of a
firearm (at Docket No.: 11-CR-1231-A), two points were added in accordance with USSG
§ 4A1.1(d). This brought Lozano’s total criminal history score to a seven, which translates into a
criminal history category of IV. See USSG Chapter 5, Part A.
Lozano’s offense level was calculated with the four-point enhancement. Lozano’s base
offense level was 32, but two points were added because he was charged and pled guilty to
18 U.S.C. § 1956. As noted above, four points were added to his offense level in accordance
with USSG §3B1.1(a), because Lozano was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive. Two points were deducted from
his offense level due to his acceptance of responsibility through his guilty plea. This left Lozano
with a total offense level of 36.
The Sentencing Guideline range for Lozano who had a criminal history of IV and an
offense level of 36 was 262-327 months imprisonment. This Court sentenced Lozano to an
imprisonment term of 210 months (17.5 years), which is a sentence that was well below the low-
end of his guideline range.6 A below-guideline range sentence cannot be considered
unreasonable as to Lozano.
G. Lozano also claims ineffective assistance of counsel.
Lozano makes five separate arguments in pursuit of his ineffective assistance of counsel
claim. To demonstrate that his counsel was ineffective and thereby render Lozano’s guilty plea
involuntary, he must show that: (i) his counsel’s representation fell below an objective standard
of reasonableness demanded of attorneys in criminal cases; and (ii) there is a reasonable
probability that, but for counsel’s errors, he would have proceeded to trial instead of pleading
guilty. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). In any case presenting an
6 Notably, even if the four-point enhancement had not been applied to Lozano’s offense thereby
rendering his offense level a 32, Lozano’s criminal history score of IV and his offense level of 32
would have given him a guideline range of 168-210 months. Thus, his sentence of 210 months
would have been within this alternative guideline range.
ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was
reasonable considering all the circumstances. Strickland v. Washington, 466 U.S. 668, 688
(1984).
Based on the transcript excerpts from the many conferences held before February 21,
2017, Lozano avoided pleading guilty. Based on the discussions at those same conferences the
only reason given for Lozano’s reluctance to change his plea was because he was not satisfied
with what the Government was offering him in exchange for his guilty plea. Therefore, this
Court and counsel for Lozano and the Government prepared for a jury trial.
A jury was empaneled one week prior to Lozano’s guilty plea and his counsel, along with
the Government, were ready to begin with opening statements to the jury on the day Lozano pled
guilty. Thus, Lozano, perhaps more than many other defendants, had a jury waiting to hear his
case on the very day he pled guilty, and could have just as easily proceeded with his jury trial.
With this standard in mind and given the specific posture of the case on the day
Defendant pled guilty, the Court will address each of Lozano’s ineffective assistance of counsel
claims, seriatim.
First, Lozano argues that his counsel “failed to consult or explain to [Lozano] how the
U.S.S.G. commentary note would affect his sentence.” However, as the excerpts from the
conference transcripts show, the Government’s viewpoint of Lozano’s role as a leader (i.e., the
basis for the potential 4-point enhancement under the Sentencing Guidelines) was referenced in
open Court during the November 21, 2016 conference. ECF 396. Therefore, even if his attorney
had failed to privately tell Lozano that he was being considered a leader, Lozano’s attorney made
it known to Lozano in open court on November 21, 2016 that the Government considered him to
be the leader. Thus, this Court finds that Lozano had very early notice that he was being
considered by the Government as a leader. In addition, as the Government explained in open
court, Lozano could not receive less time than his co-conspirators to whom he supplied cocaine.
Finally, Lozano’s counsel represented in open court that he had provided Lozano with all of the
information as it was given to him by the Government; thus, this Court finds that Lozano’s
representation fell well within an objective standard of reasonableness demanded of attorneys in
criminal cases.
Second, Lozano argues his counsel was ineffective “for not raising the unwarranted
disparity under 18 U.S.C. 3553(a)(6) where [Lozano’s] codefendant received under 48 months as
compared to [Lozano] receiving 210 months imprisonment.” Although it is true that co-
defendant, Joe Borelli, received a term of imprisonment of 48 months, the following highlights
the differences between Borelli and Lozano:
• Borelli was only charged with, and pled guilty to, Count one (the drug conspiracy count)
and not Count two (the money laundering count) – Lozano was charged with, and pled
guilty to both counts;
• Borelli’s total offense level was 29 – Lozano’s total offense level was 36;
• Borelli’s total criminal history score was 3, and pursuant to the sentencing table in USSG
Chapter 5, Part A, a criminal history score of 3 establishes a criminal history category of
II – Lozano was a IV;
• Borelli’s guideline range was 97-121 months imprisonment – Lozano’s was 262-327
month imprisonment;
• Borelli received nearly a 50% reduction from the low end of his guideline range sentence;
Lozano received 20%;
• Borelli was not the organizer of the conspiracy refenced in Count one, but Lozano was, in
fact, the leader and organizer of the conspiracy; and
• Borelli (and other co-defendants) were willing to serve as witnesses against Lozano
during Lozano’s trial, which the Government stated in open Court during a conference.
Given these significant disparities and the Court’s own familiarity with the roles of each of the
co-defendants and their respective sentences, Lozano’s counsel’s representation did not fall
below an objective standard of reasonableness demanded of him in this criminal case.
Third, Lozano argues that his attorney was ineffective for not investigating “all possible
consequences, file any pre-trial motions, and read the commentary [to] note 2(c.) and advise
[Lozano], and not to make any uninformed promises about [Lozano’s] sentence.” As this Court
noted above, Lozano’s counsel was on the verge of providing his opening statement to an
empaneled jury when Lozano decided to take an open guilty plea, without a plea agreement.
Additionally, as the transcript excerpts above illustrate, Lozano’s counsel questioned evidence
when the government first shared it with him. For example, Lozano’s attorney stated that when
Lozano was interviewed, he made no inculpatory remarks and the other evidence only referred to
a person by the name of “D,” which, Lozano’s attorney argued could be anyone, not just Dante
Lozano. Lozano’s counsel also contended that there was no evidence as to how or exactly when
Lozano came to Pennsylvania from Texas. Thus, this Court finds that counsel conducted a
thorough investigation and his actions did not fall below the standard of objective reasonableness
in this regard. More importantly, Lozano affirmed for this Court while he was under oath during
his change of plea hearing on February 21, 2017, that he was satisfied with the advice and
representation his attorney had given him, and that no one had made any promises as to what his
actual sentence would be. Therefore, this Court finds this claim for ineffective assistance of
counsel to be meritless.
Fourth, Lozano claims that he was not advised by his attorney that he would be unable to
challenge the “unreasonableness” of his sentence under 3553 (a)(6) by changing his plea. By
referencing 18 U.S.C. § 3553(a)(6), Lozano appears to be suggesting that this Court failed to
avoid unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct. To the contrary, Defendant received a below the guidelines
sentence for the crimes to which he pled guilty and thus, like others who fall into the criminal
history level of IV, and possess an offense conduct score of 36, Defendant was treated more
favorably than others with his criminal history and offense level scores. Furthermore, the Court
explained during the change of plea colloquy that Lozano had the right to appeal any sentence
the Court imposed, unless he were to voluntarily give up that right. Following his open guilty
plea, the Court took a recess to allow Lozano and the Government one final attempt to reach a
plea agreement. An agreement did not come to fruition, and thus, Lozano never gave up any of
his rights to appeal. Thus, the Court finds this argument moot.
Fifth, Lozano claims that his attorney “was ineffective in providing assistance by not
filing pre-trial motions or any of the motions [Lozano asked] to be done. In addition, the
Counsel provided an address that was not in use and this obstructed [Lozano’s] access to the
counsel.” As the excerpted transcripts illustrate, there was a period of time where
communication difficulties existed between Lozano and his attorney. However, those same
transcripts also illustrate the number of times this Court asked Lozano if he was satisfied with the
communication between him and his attorney. He repeatedly affirmed that all was well.
Moreover, during his change of plea hearing there was an specific exchange wherein this Court
asked Lozano, while he was under oath, if he had adequate time to talk over the change of plea
with his attorney, to which Lozano responded “yes.” The Court also asked Lozano at the
sentencing hearing, while Lozano was under oath, if he was completely satisfied with the advice
and representation his attorney had given him, and again, he responded, “yes.” Although it
appears that Lozano wanted his attorney to file certain pre-trial motions at Lozano’s direction
and directive, his attorney was under no obligation to do so. This Court finds that throughout the
many conferences held in open court and the many written submissions to this Court, Lozano’s
attorney’s counsel and representation in this case never fell below the standard of objective
reasonableness. Accordingly, Lozano’s ineffective assistance of counsel argument shall be
denied.
IV. Conclusion
Based on all the foregoing reason, each of Lozano’s arguments fail to support his Section
2255 Petition, and thus his Petition will be denied by way of a separate Order filed
contemporaneously with this Opinion.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc: All counsel of record
and
Dante Lozano - 37915-068
FCI Bastrop
Federal Correction Institution
PO Box 1010
Bastrop, TX 78602