1:23-cv-04591
S.D.N.Y.Oct 18, 2023Background
- Andres Bello was charged in an S2 Superseding Indictment with (1) a narcotics conspiracy involving 5+ kg of cocaine and (2) aiding and abetting a murder with a firearm during and in relation to that narcotics conspiracy; factual summary: an April 18, 2020 sham-drug transaction led to gunfire that ultimately caused Jorge Miguel Cabrera’s death; Bello later was found with ~2.5 kg of cocaine in a May 2, 2020 stop and was arrested.
- Bello pleaded guilty to Count Two (aiding and abetting the firearm murder during the narcotics conspiracy) at a February 10, 2022 change-of-plea hearing and made admissions at allocution describing participation in the attempted cocaine purchase and awareness that a gun could be used.
- At sentencing (Nov. 16, 2022) the parties’ Guidelines positions produced an agreed stipulated range subject to career‑offender dispute; the Court adopted a Guidelines range of 235–293 months and imposed a below-Guidelines sentence of 212 months.
- Bello proceeded pro se and filed a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel on multiple grounds (constructive amendment/uncharged plea, erroneous advice about mandatory consecutive sentence, inadequate mitigation at sentencing, and failure to file an appeal). He also filed and later withdrew a § 3582(c)(1)(A)(i) reduction motion.
- Bello executed an attorney-client privilege waiver; former counsel submitted sworn declarations denying key factual assertions (including any instruction to file an appeal). The Court considered the record, counsels’ declarations, and governed precedent and denied the § 2255 motion; the § 3582 motion was voluntarily dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive amendment / plea to uncharged crime | Bello says he pled guilty to a crime not charged (attempted possession/use of firearm in relation to attempt to possess cocaine) | Govt/Court: plea allocution shows Bello admitted joining a narcotics conspiracy; Count Two charged murder in relation to that conspiracy | Denied — no constructive amendment; allocution aligned with the conspiracy charged and plea was knowing and voluntary |
| Advice re consecutive mandatory sentence (pre‑Lora) | Bello says counsel misadvised that § 924(j) required a consecutive mandatory minimum, and he would have gone to trial if he’d known concurrent sentences were possible | Govt/Court: counsel and court correctly stated controlling law at plea/sentencing (prior circuit precedent required consecutive sentences); Lora post‑dates sentencing | Denied — counsel’s advice matched then‑controlling law; no Strickland error |
| Sentencing mitigation and strategy (conditions of confinement; victim’s conduct) | Bello faults counsel for not pressing mitigation based on pretrial COVID conditions and for not emphasizing that victim provoked the killing | Govt/Court: counsel raised confinement conditions and credited mitigating conduct; counsel reasonably declined to portray the victim as to blame — strategic choice to avoid backfire | Denied — advocacy was within professional judgment; no deficient performance or prejudice |
| Failure to file notice of appeal | Bello contends he immediately asked counsel to appeal after sentence; counsel failed to file | Counsel (sworn declarations): Bello never instructed them to file an appeal; court offered to file if requested at sentencing and Bello made no request | Denied — court credits counsel’s sworn declarations over Bello’s broad, self‑serving assertions; no Strickland violation |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective assistance standard)
- Lora v. United States, 599 U.S. 453 (2023) (§ 924(j) sentence may be concurrent or consecutive)
- Garza v. Idaho, 139 S. Ct. 738 (failure to file a requested appeal is per se ineffective assistance)
- United States v. Bastian, 770 F.3d 212 (2d Cir.) (constructive amendment doctrine)
- United States v. Richards, 302 F.3d 58 (2d Cir.) (elements of § 846 conspiracy)
- United States v. Juncal, 245 F.3d 166 (2d Cir.) (allocution carries strong presumption of veracity)
- Chang v. United States, 250 F.3d 79 (2d Cir.) (use of sworn declarations in lieu of evidentiary hearing)
- Henry v. Poole, 409 F.3d 48 (2d Cir.) (applying Strickland; deference to counsel’s decisions)