UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civi l Action No. 13
- 0 982 (CKK) Criminal No. 08
- 126
- 01 (CKK)

MEMORANDUM OPINION ( January 2 8 , 201 4 ) Defendant Lucson Renardo Destine pled guilty to one count of Hostage Taking and Aiding and Abetting , in violation of 18 U.S.C. §§ 1203(a) and 2, pursuant to Federal Rule of Criminal Procedure 11(c)(1)( C ) . Pr esently before the Court is Defendant’s pro se [49] M otion to Vacate, Set Aside, or Correct Sentence P ursuant to 28 U.S.C. § 2255 , as well as the Government’s [52] Motion to Dismiss Defendant’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255

. Defendant claims ineffective assistance of counsel in violation of his Sixth Amendment Rights, as he alleges various errors by his counsel of record including the failure to file a requested notice of appeal. The Court, however, does not address the merits of Defendant’s claim because, u pon con sideration of the pleadings 1 , the relevant legal

aut horities, and the reco rd as a whole, the Court finds Defendant’s motion is time

- barred. Accordingly, Defendant’s [49 ] Motion to Vacate, Set Aside, o r Correct a Sentence is DENIED, and the Government’s [5 2] Motion to Dismiss Defendant’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is GRANTED.

1 Defendant’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, ECF No. [49] (“Def.’s Mot.”); United States’ Motion to Dismiss Defendant’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, ECF No. [52] (“Gov’t’s MTD”); Defendant’s Objection to Government’s Response, ECF No. [54] (“Def.’s Obj.”).

UNITED STATES OF AMERICA ,

v. LUCSON RENARDO DESTINE , Defendant

.2 On April 29, 2008, Defendant , along with his co

- defendants, was charged by indictment with one count of Conspiracy to Commit Hostage Taking, in violation of 18 U.S.C. § 1203(a), and one count of Hostage Taking and Aiding and Abetting, in violation of 18 U.S.C. § 1203(a) and 2. See Indictment, ECF No. [1]. On February 26, 2009, pursuant to Federal Rule of Crim inal Procedure 11(c)(1)( C ), Defendant entered a written guilty plea to one count of Hostage Taking and Aiding and Abetting, in violation of 18 U.S.C. § 1203(a) and 2. See Plea Agreement, ECF No. [15]. Under the plea agreement, the parties agreed that the appropriate sentence should be 168 months, and on May 15, 2009, the Court sentenced Defendant to 168 months incarceration, with credit for time served, followed by three (3) years of supervised release, and a Special Assessment of $100. See Judgment, ECF No. [36]. D efendant did not appeal from his conviction and sentence. Over four years later, on June 1 6, 2013, Defendant filed the present pro

se [49] Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Defendant argues that he received in effective assistance of counsel in violation of his Sixth Amendment rights , as his counsel of record “[1] failed to file[] any timely objections to the Pre[s]entence Report, (2) [f]ailed to argue to the Court the application of USSG § 5K2.11 [l]esser harms downward departure, where the record will demonstrate that defendant[‘s] life was in danger by his co

- conspirators, (3) [f]ailed to argue to the Court that defendant’s life is in danger upon return to his country, (4) [f]ailed to file a requested Notice o f Appeal to have the Sentence review [ed] for an unreasonable sentence, (5) [f]ailed to preserve or perfect the record for [a]ppell ent [sic] [r]eview.” 2 Def.’s Mot. at 4. Upon receiving Defendant’s motion, the Court ordered the Government to submit a resp onse. Order (July 2, 2013), ECF No. [50 ]. In response,

2 Defendant lists these objections as the first ground for his motion. He then reiterates the second and fourth obj ections as additional grounds for his motion. Def.’s Mot. at 5, 7.3 the Government filed its [52] Motion to Dismiss Defendant’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Defendant subsequently filed his [54] Objections to the Gov ernment’s motion. Under Title 28 , Section 2255 of the United States Code : 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 C onstitution 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 impose d the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a). “A 1

– year period of limitation shall apply to a motion under this section.” Id . § 2255(f). This one

- year limitation period runs from the latest of: (1) the date on which the j udgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such gov ernmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. Id. Accordingly, motions pursuant to § 2255 must be filed within one year of the date on which the judgment of conviction becomes final, or the movant must show that some other date of accrual is proper under § 2255(f)(2)

- (4). Here, Defendant’s conviction and sentence became final on May 31, 2009 when he did not appeal from the May 15, 2009 sentencing hearing and May 21, 2 009 entry of the judgment order. Pursuant to the version of Fed. R. App. Proc. 4(b) in effect in May 2009, Defendant was4 required to file his notice of appeal within 10 days after the entry of the judgment against him.
See Fed. R. App. Proc. 4(b) (2005 ed.). Although he contends that the failure to file a notice of appeal was due to the ineffective assistance of counsel, the fact remains that Defendant did not file a notice of appeal, and his conviction became final on May 31, 2009. Furthermore, Defend ant does not allege that some other date of accrual pursuant to §2255(f)(2)

- (4) is appropriate here. No illegal governmental action has prevented Defendant from filing his motion, nor does his motion rely on a newly recognized retroactively applicable rig ht. Further, Defendant does not allege that the facts underlying his motion could not have been discovered through the exercise of due diligence prior to May 31, 2009. Indeed the record reveals that the operative facts for Defendant’s claim

– his counse l of record’s failure to raise certain challenges and appeal his sentence

– were available and in fact disclosed to him in the presence of an interpreter at the time his conviction became final

. See Transcript of Sentencing,
5/ 1 5/09 at 2:11

- 1 3 (noting swe aring of interpreter for Sentencing); Transcript of Plea Hearing, 2/26/09 at 2:11

- 12 (noting swearing of interpreter for Plea Hearing). First, although Defendant claims that his attorney “failed to file[] any timely objections to the Pre[s]entence Report”, the record shows that Defendant’s attorney did in fact consult with
him before filing a set of objections to the Presentence Report

. See Receipt and Acknowledgement of Presentence Investigation Report, ECF No. [35] at 2 (“Mr. Destine and I have reviewed the Presentence Report (PSR) in relation to his case, and we have found that the following factual/material inaccuracies exist in the PSR.”). Accordingly, Defendant was on notice of which objections his attorney was (and was not making). Further

– after providing Defendant with an interpreter

– the Court stated in open c ourt at the time of sentencing that al l objections had been resolved, a statement that Defendant had an opportunity to respond to and5 rebut. See Transcript of Sentencing, at 2:23

- 3 :2 (“W hat I have is a presentence report . . . There are no objections that have not been resolved.”)

. Next, regarding Defendant’s contention that his attorney “[ f]ailed to argue to the Court the application of USSG § 5K2.11 [l]esser harms downward departure ” , at the plea colloquy, Defendant was informed by the Court, again in open court with the benefit of an interpreter, that pursuant to Defendant’s Rule 11(c)(1)(C) plea, he and the Government had reached an agreement for a fixed sentence of 168 months, making a downward departure from the Sentencing Guidelines by the Court irrelevant. See Transcript of Plea Hearing at 3 7:11

- 1 6 (“Now , as I’ve indicated , the agreement that you and the Government have reached is that the sentence would be 168 months , that’ s roug hly 14 years . . . If I do approve it then that would the sentence that you would get.”); id. at 3 9 :1

- 4 (Defendant answering “Yes” to the Court’s question , “Or you could decide not to withdraw the plea and go forward and be sentenced the way a normal defen dant would be sente nced . Do you understan d that? ”). Indeed, Defendant’s Plea Agreement, which was interpreted to him , states that by agreeing to a specific sentence, he would not be seeking a downward departure. See Plea Agreement, ECF No. [15] at 4 (“T he parties agree that under the Sentencing Guidelines neither a downward nor an upward departure from the applicable Guidelines range is warranted. Accordingly, neither party will seek such a departure.”) ; Transcript of Plea Hearing at 3 5 :2 4

- 3 6 : 1 (Defenda nt replyin g “Yes” to the Court’s question , “Okay . S o then the full ple a letter was interpreted to him? ”). T he Court explained in detail and on the record to Defendant how the Sentencing Guidelines would be applicable only if the plea agreement were rejec ted or withdrawn . The Guideline range for Defendant was 210 to 262 months, and his sentence of 168 months was below this guideline range. Id. at 3 9 :14

- 22 (“Let me discuss the sentencing guidelines or

-- this would only come up if I don’t accept the6 168 months. So , if I don’t accept the 168 months , this is the way the Court would go about deciding on a n appropriate sentence. . . .Y ou calculate the offense level , and there ’s somewhat of a calculation in h ere and I’ll get to it, i t’s characteristics that r elate to the offense.”). Transcript of Sentencing at 3:20

- 24 (“So, the difference between the advisory sentencing guidelines, which would be 210 months to 262, which is 17.5 years to 21.8 years. The plea has 168 months, which is 14 years, which is less t han the advisory sentencing guidelines.”). If Defendant were to be sentenced pursuant to the advisory Sentencing Guidelines range, he would need to argue for a variance from the Sentencing Guidelines. Transcript of Plea Hearing at 41:9

- 12 (“The Court the n could either sentence you within that. The Court could do what we call a variance , which could

– the statute sets out certain things that I need to consider.”). His Rule 11(c)(1)(C) plea, the Court explained, was an agreed

- upon variance of the advisory Sentencing Guidelines. Transcript of Sentencing at 3: 25

- 4:2 (“The Government has justified the Rule 11(c)(1)(C)

sentence , that is below the advisory sentencing guidelines, I guess by 3 years and 5 months on the following grounds . . . . ”). The Court fur ther explained to Defendant that it did not see any potential downward departures as applying here, except for a possible departure based on Defendant’s deportable status, placing Defendant on notice that his attorney was not arguing for a downward departure pu rsuant to USSG § 5K2.11

. Transcript of Plea Hearing at 41:4

- 7 (“I don’t think that , as far as we know , that there’s any departures that actually would apply other than maybe the fact that he’s getting

-- you’re getting deported . B ut there’s not h ing obvio us at this point.

. . . ”). Defendant indicated that he unde rstood the procedure under which he was being sentenced pursuant to his plea agreement. Id. at 41:19

- 42:2 (Defendant answerin g “Yes” to the Court’s question, “So , I can either sentence you under the advisory sentencing guidelines

. I can sentence you as a variance. Or I can do what has been proposed here , which is to agree to7 the sentence that you and your lawyer and the Government have agreed to, and if I accept that sentence, that will be the sentence that you get. . . . Is this something you’ve talked about with your lawyer?”). Accordingly, Defendant’s argument that his attorney failed to argue to the Court the application of USSG § 5K2.11 [l]esser harms downwa rd departure is out of place here, given the existence of his Rule 11(c)(1)(C) plea agreement. Furthermore, even if this argument were appropriate, the Court advised Defendant that it did not view any downward departures as appropriate (beyond perhaps the fact that Defendant was a deportable alien) , signaling to Defendant at the time of the plea colloquy that his attorney had failed to argue for the application of the lesser harms downward departure. Consequently, no later accrual date is appropriate.
Nex t , regarding Defendant’s contention that his attorney failed to raise his fear of deportation, Defendant was apprised during his plea colloquy, again in open court with the benefit of an interpreter, of the fact that his conviction could result in his depo rtation or exclusion from the United States

. Transcript of Plea Hearing at 11:1

- 7 (Defendant answering “Yes” to the Court’s question , “D o you understand that the conviction for this offense , your being found guilty , , could result in your being deported fr om the United States back to Haiti , or denial of citizenship if you wanted to become a citizen of the United States under the United States immigration law . . . .”). Moreover, as noted, the Court stated that Defendant could potentially be eligible for a downward departure in his sentencing because of his status as a deportable alien

. Transcript of Sentencing at 4:5

- 6 (“He would be eligible for a Smith departure of six months because he is a deportable alien.”). In addition, Defendant’s Plea Agreement,

w hich again he stated was interpreted to him, makes clear that he would be subject “to detention, deportation and other sanctions at the direction of the U.S. Immigration and Customs Enforcement.” Plea Agreement, ECF No. [15] at 3. Further, at his sentenc ing, the Court8 explicitly addressed in open Court with the benefit of an interpreter the fact that Defendant was deportable. Transcript of Sentencing at 4:6 (noting that Defendant is a “deportable alien”); id. at 13:23

- 14:3 (raising the possibility of dep ortation). Thus, it was clear to Defendant at the time his conviction became final that he was not being provided asylum due to any alleged danger in returning to his country. Finally, as part of both his plea colloquy and sentencing , Defendant was explicitly informed of his right to appeal and the applicable ten

- day deadline for filing such an appeal. 3
See Tr anscript of Plea Hearing at 15:3

- 8 (“You can appeal your conviction if you believe your guilty plea was unlawful or involuntary, o r there was some fundamental defect in the proceeding. . . . And you have a statutory right to appeal your sentence under certain circumstances.

. . . ”); Transcript of Sentencing at 14:9

- 11 (“You have a right to appeal the sentence imp osed by the
Court. Y ou must file an appeal within 10 days after the court enters judgment.”)

. Indeed, the Court explicitly informed Defendant that he could appeal without any cost to him, and that counsel would be appointed to represent him. Id. at 14:11

- 13 (“If you’re unable to afford the costs of an appeal , you can ask the Court to appoint counsel to represent you at no cost to you.” ); Transcript of Plea Hearing at 15:11

- 14 (Defendant answering “Yes” to the Court’s question , “And if you are unable to pay the costs of an appeal you can ask to pay without any costs to you. Do you understand that? ”).

3 Defendant’s remaining contention that his attorney “failed to preserve or perfect the record for [a]ppellent [r]eview” is somewhat puzzling. Def.’s Mot. at 4. The Court understands Def endant to mean “the record for ‘ appellate review ’ ” but this does not render this unexplained claim any more comprehensible. For present purposes, Defendant fails to explain what inaccuracies in the record for appellate review exist, and how these inaccura cies could not have been discovered through the reasonable exercise of due diligence prior to May 31, 2009. In add ition, the Court notes that records of Defendant’s plea and the Court’s proceedings are available.9 Thus, the facts underlying Defendant’s claim were not only discoverable by Defendant

– they appear to have been known by Defendant at the time his conviction became final. Again, as noted, in all of these proceedings, Defendant was provided an interpreter. Now, more than four years later, Defendant argues that did not realize the legal significance of these decisions at the time

. Def.’s Obj. at 1. But the D.C. Circuit has rejected this unde rstanding of § 2254(f)(4), as it “would in effect write the statute of limitatio n s out of AEDPA, rendering it a nullity.” United States v. Pollard , 416 F.3d 48 , 55 (D.C. Cir. 2005)

. Rather, “for the purposes of § 2255(4), ‘[t]ime begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recogni zes their legal significance.’” Id. (quoting Owens v. Boyd , 235 F.3d 356, 359 (7th Cir. 2000 ) ). Accordingly, the Court concludes that May 31, 2009

– the date Defendant’s conviction became final

– i s the start date for the one

- year statute of limitations applicable to motions under § 2255. See also Dodd v. United States , 545 U.S. 353, 357 (2005) (“In most cases, the operative date from w hich the limitations period will be measured will be the one identified in [(f)(1)]: ‘the date on which the judgment of conviction becomes final.’”). Given this accrual date, the Government argues that the statute of limitations for Defendant’s motion expi red exactly one year later , on May 31, 2010. Gov’t’s MTD at 5. Thus, because Defendant’s motion w as not filed until June 16, 2013 , pursuant to the one

- year statute of limitations , his motion is untimely. The Court agrees . T he statute of limitations for this motion expired on May 31, 2010 and Defendant’s motion is untimely . To be sure, the Supreme Court has held that the statute of limitations applicable to § 2255 motions is subject to equitable tolling. See Holland v. Florida , 130 S.Ct. 2549 , 2560 (20 10). However, this equitable tolling is available only where a movant shows “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at 256210 (quoting Pace v. D iGuglielmo , 544 U.S. 408, 418 (2005)). Here, Defendant has not established that extraordinary circumstances prevented him from filing his motion within the limitations period or that he has been pursuing his rights diligently in the time since his convict ion became final . Indeed, the only explanation Defendant offers for his delay is that he “was in the special housing unit, with no access to a law library to file a timely § 2255.” Def.’s Obj. at 2. Defendant never explains why confinement in the specia l housing unit prevented his timely filing , nor does he s et out the actual dates in which he was confined in the special housing unit

. In fact, he does not even state w hether this confinement even overlapped with the limitations period at issue

. Furthermore, although Defendant points to his counsel’s alleged disregard of his instructions to file an appeal, Def.’s Mot. at 12, he does not allege that his counsel’s misbehavior or inaction prevented him from filing a motion pursuant to § 2255, the sor t of attorney irresponsibility that could constitute “extraordinar y circumstances ” and result in equitable tolling. See Holland, 130 S.Ct at 2564

- 65

. In addition , Defendant never explains how he was diligently pursuing his rights during this period of co nfinement in the special housing unit. Without much more information as to the circumstances and timing of Defendant’s confinement, further explanation of the circumstances preventing him from filing his motion, and additional evidence that he was diligen tly pursuing his rights, the Court concludes that this is not a case where equitable tolling is applicable. And in the absence of equitable tolling of the applicable statute of limitations, Defendant’s motion is plainly untimely. For the foregoing reasons , the Court finds Defendant is not entitled to the requested relief. Defendant was required to file a motion to vacate pursuant to 28 U.S.C. § 2255 within one year of the date on which his conviction became final, but clearly failed to do so. Defendant

a ttempts to invoke equitable tolling of t he statute of limitations, but cannot establish the11 extraordinary circumstances and diligent pursuit of his rights needed for such tolling. Furthermore, t he Court concludes that a hearing in this matter is unnecessar y because the record conclusively shows that Defendant’s motion is time

- barred. See 28 U.S.C. § 2255(b) (no hearing required where “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief”). According ly, Defendant’s [ 49 ] Motion to Vacate, Set Aside, or Correct a Sentence is DENIED and the Government’s [52] Motion to Dismiss Defendant’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is GRANTED

. An appropriate Order accomp anies a Memorandum Opinion. As an additional note, in this Opinion, the Court has r elied on finalized portions of th e unofficial transcript s of Defendant’s Plea Hearing and Sentencing which have been prepared by the Court Reporter. For the parties’ reference, the Court attaches the pages containing th ese finalized portions as an App endix to this Opinion.
/s/ COLLEEN KOLLAR
- KOTELLY UNITED STATES DISTRICT JUDGEUNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 13
- 0982 (CKK) Criminal No. 08
- 126
- 01 (CKK)

APPENDIX TO THE COURT’S JANUARY 28, 2014 MEMORANDUM OPINION UNITED STATES OF AMERICA,

v. LUCSON RENARDO DESTINE, Defendant.

### 1

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 3 UNITED STATES OF AMERICA, 4 Government, CR No. 5 Washington, DC vs. Date 6 Time XXX, 7 Defendant. 8 ___________________________________ 9 10 TRANSCRIPT OF STATUS HEARING

BEFORE THE HONORABLE COLLEEN KOLLAR-KOTELLY 11 UNITED STATES DISTRICT JUDGE 12 13 APPEARANCES: 14 For the Government: ESQUIRE 15 16 Washington, DC 20530 17 (202) 18 For the Defendant: , ESQUIRE 19 20 21 Court Reporter: Lisa M. Foradori, RPR , FCRR Official Court Report er 22 U.S. Courthouse, Room 6706 333 Constitution Avenue, NW 23 Washington, DC 20001 (202) 354-3269 24 Proceedings recorded by mechanical stenography; t ranscript produced by computer-aided transcription 25

### 2

1 P R O C E E D I N G S 2 THE COURT: So, do we have the waiver. Let's cal l 3 the case. 4 COURTROOM DEPUTY: Criminal case 08. 126.-one. 5 The United States of America versus Luke Destine, Ms. Schmidt 6 for the Government Mr. Miles for the TKPWEFT, the defendant is 7 present in the courtroom. 8 THE COURT: Is is Mr. Destine is that how you 9 pronounce your name or something else. 10 THE DEFENDANT: Destine. 11 THE COURT: Okay. All right. We've already swor n 12 in the interpreter. Let's have counsel and Mr. D estine come 13 up and let's proceed. If you have -- you should have copies 14 with you. If we can swear him in. 15 (Defendant sworn by clerk). 16 THE COURT: Mr. Destine, we're here to take a ple a 17 I'm going to be asking you some questions as part of the plea 18 to make sure that you understand what you're doin g and that 19 you're entering this plea agreement voluntarily. If you don't 20 understand what I'm asking you or if it doesn't s ound like 21 what has been explained to you by your lawyer, pl ease stop me 22 and ask. You can also talk to your lawyer at any time and 23 seek his advice. 24 I'll TKPOE through this showily and carefully to 25 make SHAUR that is exactly what you want to do -F PT you can't

### 11

1 U.S. citizen. Do you understand that the convict ion for this 2 offense, your being found guilty, could result in your being 3 deported from the United States back to Haiti, or denial of 4 citizenship if you wanted to become a citizen of the United 5 States under the United States immigration law; d o you 6 understand that? 7 THE DEFENDANT: Yes. 8 THE COURT: Have you taken any medication in the 9 last 48 hours? 10 THE DEFENDANT: Yes. 11 THE COURT: What was the medication for? 12 THE DEFENDANT: They run some test on me and they 13 say that I have high PWHRAOUD pressure so I need to take 14 medicine. 15 THE COURT: Okay. And Mr. Miles have you had any 16 indication that he that that's any issue of the c onfidency in 17 terms of what he's understanding what he's doing. 18 MR. MILES: No, Your Honor. 19 THE COURT: I take it that is since you have not 20 gone to school that you don't read or write in yo ur own 21 language is that right. 22 THE DEFENDANT: No. 23 THE COURT: It is neat correct or you can or can 24 you can't read or write. 25 THE DEFENDANT: I don't know how to read and I

### 15

1 THE DEFENDANT: Yes. 2 THE COURT: You can appeal -- let me tell you wha t 3 you're not giving up. You can appeal your convic tion if you 4 believe your guilty plea was unlawful or involunt ary, or there 5 was some fundamental defect in the proceeding. T he Court is 6 required to ask certain questions and make certai n findings. 7 And you have a statutory right to appeal your sen tence under 8 certain circumstances, if it's contrary to the la w or illegal. 9 Do you understand that? 10 THE DEFENDANT: Yes. 11 THE COURT: And if you are unable to pay the cost s 12 of an appeal, you can ask to pay without any cost s to you. 13 Do you understand that? 14 THE DEFENDANT: Yes. 15 THE COURT: Do you understand if you plead guilty 16 in this case and I accept your guilty plea you'll give up the 17 rights I've just gone over with you explained and there 18 wouldn't be any trial or any appeal except on the issues that 19 I said you could appeal. Do you understand that. 20 THE DEFENDANT: Yes. 21 THE COURT: Do you want to plead guilty H this ca se 22 give up your rights to atrial and your right to a n appeal and 23 all of the rights I've just discussed. 24 THE DEFENDANT: I'm guilty. 25 THE COURT: Now what I'm what is going to happen

### 35

1 MR. MILES: Very well. 2 THE COURT: There is a written letter in my 3 understanding Mr. Destine is that you don't read so how can 4 you explain to me how you wind over the letter th e plea letter 5 that you've agreed to. Did somebody read it to y ou, did they 6 interpreter read it to you how did this happen? 7 THE DEFENDANT: Yes. 8 THE COURT: Well did you tell me be more 9 descriptive, I mean, did the lawyer read it and t he 10 interpreter then interpret it did the interpreter have the 11 letter in front of you for him and interpret the letter for 12 you. I mean how did you find out what is in the letter? 13 THE DEFENDANT: My lawyer and my interpreter. 14 THE COURT: Okay maybe Mr. Miles to move this alo ng 15 you can tell me how you did this. 16 MR. MILES: I had a copy of the plea agreement in 17 front of me and the interpreter had a copy of the plea 18 agreement and actually at first I summarized the critical 19 component of the plea agreement and the interpret er with me 20 present read the entire plea agreement and interp reted it to 21 him and after each paragraph I further explained the paragraph 22 through the interpreter and I was there to answer any 23 questions. 24 THE COURT: Okay. So then the full plea letter w as 25 interpreted to him?

### 36

1 THE DEFENDANT: Yes. 2 THE COURT: Okay. So, let me go over the letter. 3 If I don't explain it the way you understand it j ust let me 4 know I'm going to summarize it and if you have a different 5 understanding or you discussed it differently wit h your lawyer 6 just let me know because I want to make sure that I'm 7 explaining it and that we're both agreeing as too what is in 8 the letter okay. So if I ask go through it in a different way 9 let me know. Because I'm going to be asking you whether this 10 is your understanding as I've ex-PHAEUPBD it and when you're 11 agreeing to this. Okay. 12 THE DEFENDANT: Yes. 13 THE COURT: So let me start with you've indicated 14 as I told you you would be entering the plea to C ount 2. And 15 it sets out in the plea letter what the statutory maximum is 16 and the statutory maximum is life sentence of fin e of the 17 $50,000 or both. A maximum of five years supervi sed release. 18 A special assessment of a hundred dollars which I cannot 19 decide that you don't have to pay you can pay it over time. 20 Restitution if it's appropriate to the victim, in other words, 21 if there are some K*US costs that would be viewed as 22 restitution then the Court is required to it's TP HAPBD tore I 23 is required to order it. Is that your understand ing of what 24 the statutory penalties are. 25 THE DEFENDANT: Yes.

### 37

1 THE COURT: And in terms of supervised release wh at 2 supervised release means is that if you're given the jail time 3 say for instance the 168 months, the Court can se t a period of 4 supervised release in the community, things like you have to 5 work you have to report things like that. And if its revoked 6 based on new criminal conduct or based on you're not following 7 the conditions, then the Court imposes a new sent ence and you 8 wouldn't get credit for the time that you've alre ady been in 9 jail do you understand that. 10 THE DEFENDANT: Yes. 11 THE COURT: Now, as I've indicated, the agreement 12 that you and the Government have reached is that the sentence 13 would be 168 months, that's roughly 14 years. An d you also 14 would not be required to pay any kind of fine, an d the Court 15 would have to approve it. If I do approve it, th en that would 16 be the sentence that would you get. If -- what's not covered 17 in this agreement is whether or not there's any r estitution 18 and what it might be and any kind of specific ter ms of 19 supervised release. Is that your understanding? 20 THE DEFENDANT: Yes. 21 THE COURT: Now, you will get credit from 22 September 17. Zero eight when you came into the custody of 23 the Americans towards your sentence so in other w ords, the 24 period you have been looked up since September 17 to the date 25 of sentencing will be counted towards your senten ce so if it's

### 39

1 Or you could decide not to withdraw the plea and go 2 forward and be sentenced the way a normal defenda nt would be 3 sentenced. Do you understand that? 4 THE DEFENDANT: Yes. 5 THE COURT: Now let me one aspect of this case al so 6 is that as I told you it's wired which means that I've already 7 accepted conditionally Mr. Theard's plea, if I ac cept yours 8 then I have to also except and have it go through with Mr. 9 Succes because all three of you actually have to plead in and 10 the Court has to accept it for all three do you u nderstand 11 that. 12 THE DEFENDANT: Yes. 13 THE COURT: Okay. Some of this I've already 14 discussed. Let me discuss the sentencing guideli nes or -- 15 this would only come up if I don't accept the 168 months. 16 So, if I don't accept the 168 months, this is the way the 17 Court would go about deciding on an appropriate s entence. 18 I could consider the sentencing guidelines, they' re 19 advisory, not mandatory. So, I wouldn't have to follow them, 20 but I do need to calculate them. You calculate t he offense 21 level, and there's somewhat of a calculation in h ere and I'll 22 get to it, it's characteristics that relate to th e offense. 23 It involves the kinds of -- like a gun was involv ed, so it's 24 extra points. It's all points. 25 If you accept responsibility for your actions, it 's

### 41

1 together may not have considered and so I could g ive you a 2 higher sentence under this scheme, or I could do a lesser 3 sentence. 4 I don't think that, as far as we know, that there 's 5 any departures that actually would apply other th an maybe the 6 fact that he's getting -- you're getting deported . But 7 there's nothing obvious at this point -- and it w ould be at 8 the sentencing. 9 The Court then could either sentence you within 10 that. The Court could do what we call a variance , which 11 could -- the statute sets out certain things that I need to 12 consider. I need to consider the offense, who yo u are, your 13 background, things that relate to, you know, how much of a 14 danger you are to the community, how much rehabil itation you 15 may need, whether other people need to be deterre d from 16 committing these kinds of crimes, whether you nee d to be 17 deterred. Those kinds of things in coming up wit h a fair and 18 just sentence. 19 So, I can either sentence you under the advisory 20 sentencing guidelines. I can sentence you as a v ariance. Or 21 I can do what has been proposed here, which is to agree to the 22 sentence that you and your lawyer and the Goverme nt have 23 agreed to, and if I accept that sentence, that wi ll be the 24 sentence that you get. 25 Does this make sense up to this point? Is this

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1 something you've talked about with your lawyer? 2 THE DEFENDANT: Yes. 3 THE COURT: So that gets EUS through the guidelin e 4 departures. Now you and the TKPWOFR have set out what this 5 calculation that comes to 40 minute us three ther e may be 6 other considerations and the probation office wri tes the 7 presentence report and they do a calculation and they may see 8 some different things that have not been thought of as part of 9 this. So in the calculation may come back being different 10 this will only make a difference from your perspe ctive in term 11 of if I don't accept the 168 months you don't wit hdraw the 12 plea and I'm go ahead and TPHEFG you do you under stand that. 13 THE COURT: You look a little puzzled if you don' t 14 speak up. 15 THE DEFENDANT: Yes. 16 THE COURT: Are you sure. Don't be shy about 17 asking questions if you don't understand somethin g. 18 THE DEFENDANT: Yes. 19 THE COURT: So you don't have any questions up to 20 now. 21 THE DEFENDANT: The only question that I have is 22 where I am now when the officer took talking to m e I don't 23 understand what they say. And I have Rick card d ough Theard 24 who speak English and if we can get all three of us we can get 25 in the same place it will be better for.

### IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, Government, CR No. Washington, DC vs. Date Time XXX, Defendant.

___________________________________

TRANSCRIPT OF STATUS HEARING BEFORE THE HONORABLE COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

APPEARANCES: For the Government: ESQUIRE

Washington, DC 20530 (202) For the Defendant: , ESQUIRE

Court Reporter: Lisa M. Foradori, RPR, FCRR Official Court Report er U.S. Courthouse, Room 6706

333 Constitution Avenue, NW Washington, DC 20001 (202) 354-3269 Proceedings recorded by mechanical stenography; tra nscript produced by computer-aided transcription

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1 P R O C E E D I N G S 2 THE COURT: Good morning, everybody. Did everybo dy 3 get the victim impact statement. 4 MR. MILES: Yes. 5 THE COURT: Okay. 6 THE COURT: Good morning Mr. Destine. 7 COURTROOM DEPUTY: Criminal case 08-126-01 the 8 United States of America versus Lucson Destine. Ms. Schmidt 9 for the Government, Mr. Miles for the defendant, defendant is 10 present in the courtroom. 11 THE COURT: All right. If we could swear in the 12 interpreter. 13 (Interpreter sworn by clerk). 14 COURTROOM DEPUTY: State your name for the record
. 15 INTERPRETER: Evan Faustin. 16 THE COURT: We're here for the sentencing of Mr. 17 Destine. He entered a plea to Count 2, hostage t aking in an 18 aiding and abetting capacity. The statutory pena lties are 19 life imprisonment and a fine of $250,000. This w as a Rule 20 11(c)(1)(C). The agreement between the Governmen t and the 21 defense was for a sentence of 168 months or 14 ye ars. And 22 that there would be no fine. 23 What I have is a presentence report. The 24 Government's memorandum in aid of sentencing and a 25 justification for the Rule 11(c)(1)(C), and a vic tim impact

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1 statement from the victim's father. There are no objections 2 that have not been resolved. The advisory senten cing 3 guidelines, the offense level is base offense 32, because 4 there was a ransom demand there was an additional six points. 5 Because a firearm was used, a dangerous weapon, t here is an 6 additional two points. There's a reduction for a cceptance of 7 responsibility, which puts the offense level at 3 7. Criminal 8 history points zero, so he's in criminal history category one. 9 I would note that this is the calculation that wa s 10 agreed to in the plea letter itself. Fact findin g is required 11 for the offense level and criminal history scorin g and 12 advisory sentencing guidelines. Since the presen tence report 13 is undisputed, I'm accepting all portions of the this 14 undisputed presentence report as findings of fact under 15 Federal Rule of Criminal Procedure 32i3(A). 16 The advisory sentencing guideline range under tha t 17 calculation is 210 to 262 months. Probation, wou ld not be 18 eligible. Supervised release would be three to f ive years. 19 The fine would be $20,000 to $200,000. Restituti on does not 20 apply. The special assessment is $100. So, the difference 21 between the advisory sentencing guidelines, which would be 210 22 months to 262, which is 17.5 years to 21.8 years. The plea 23 has 168 months, which is 14 years, which is less than the 24 advisory sentencing guidelines. 25 The Government has justified the Rule 11(c)(1)(C)

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1 sentence, that is below the advisory sentencing g uidelines, I 2 guess by 3 years and 5 months on the following gr ounds: 3 Mr. Destine was held in a Haitian jail for 17 mon ths related 4 to this charge under very harsh hash and deplorab le conditions 5 which are described. He would be eligible for a Smith 6 departure of six months because he is a deportabl e alien. 7 There would always be the dificulty in trying a 8 complex case involving co-defendants and their st atements that 9 all these events occurred overseas, although the victim was a 10 United States citizen. Without minimizing the se riousness of 11 the crime, the defendant is destitute -- was dest itute and 12 desperate at the time he committed the crime and grew up 13 without the necessities of life and has no educat ion. This 14 will give him sufficient time to provide him with an education 15 and/or training to be able to lead a better life in Haiti when 16 he returns there. 17 The Court accepts and adopts the Government's 18 justification for the Rule 11(c)(1)(C) sentence a nd has 19 considered in addition the advisory sentencing gu idelines, the 20 pleadings and record in this case, the following information, 21 which I'll go over, in determiniong that the 168 months is a 22 fair, appropriate and reasonable sentence in conf ormance with 23 the factors in 18 U.S.C. 3553(a). 24 I don't know whether the Government at this point 25 wishes to make any additional statements, defense counsel or

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1 you've had a very difficult life with very few ne cessities of 2 life that have been provided. And it would appea r certainly 3 that life is considered fairly cheap where you gr ew up. This 4 however is not an excuse for engaging in violent crimes. You 5 do need education and vocational training, and th is will 6 certainly give you an opportunity. Being in pris on is 7 obviously not a pleasant experience, but it will be more 8 pleasant in the Bureau of Prisons than it was in the Haitian 9 jail. 10 You needed education, vocational training, and it 's 11 my hope that you will take advantage of that. Yo u have 12 received and you'll continue to receive medical c are and other 13 rehabilitation services in the Bureau of Prisons, and you 14 should take advantage of them. It's my hope that when you 15 return to Haiti, because you will at some point, you certainly 16 will still be young man. 17 Hopefully you'll be able to live at that point a 18 productive and law abiding life, and I would hope that you 19 would give thought during this period as to what you did, how 20 you came to be there. You obviously have some de termination 21 on your own since you left an abusive home, were able to find 22 a place to live, made some efforts to support you rself, you 23 were not successful, but you obviously have some determination 24 there and I would hope that you would turn that t o something 25 more productive because I think that you can do t hat. Also I

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1 D.C within 30 days of any change of address, you' ll notify the 2 clerk of the court of the change until such time as the 3 financial obligation is paid in full. The Court waives any 4 interest or penalties that may accrue on unpaid b alances. 5 You'll make payments on the special assessment th rough 6 participation of the Bureau of Prisons inmate fin ancial 7 responsibility program, if they will allow you to get involved 8 with it. It's a work program and you earn money. 9 Within 72 hours of release from custody you'll 10 record in person to the probation office in the d istrict to 11 which you're released. While on supervision you shall not 12 possess a firearm or other dangerous weapon, shal l not use or 13 possess an illegal controlled substance, shall no t commit 14 another federal, state or local crime. Also abid e by the 15 general conditions of supervision adopted by the U.S. 16 probation office as well as the following special conditions. 17 There is a DNA requirement by statute for all 18 felonies offenses, so you'll submit to the collec tion and use 19 of DNA identification information while incarcera ted in the 20 Bureau of Prisons or at the direction of the U.S. Probation 21 Office. Deportation compliance. You'll comply w ith the 22 Bureau of Immigration and Customs Enforcement imm igration 23 process. If deported, you shall not re-enter the United 24 States without legal authorization during the per iod of 25 supervision. Should you receive permission to re turn to the

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1 United States, you shall report to the U.S. Proba tion Office 2 in the area where you intend to reside within 72 hours of your 3 return. 4 The probation office shall release the presentenc e 5 report investigation report to all appropriate to execute the 6 sentence of the court. Treatment agencies shall return the 7 presentence report to the probation office on the defendant's 8 completion or termination from treatment. 9 You have a right to appeal the sentence imposed b y 10 the Court. You must file an appeal within 10 day s after the 11 court enters judgment. If you're unable to affor d the costs 12 of an appeal, you can ask the Court to appoint co unsel to 13 represent you at no cost to you. 14 And, again, I'm recommending placement in the 15 Bureau of Prisons where Haitian/Creole is spoken, as 16 Mr. Destine doesn't speak English and cannot read or write in 17 English or Haitian/Creole. Now we are done. 18 Parties are excused. 19 MS. SCHMIDT: We move to dismiss Count 1. 20 THE COURT: Count 1 is dismissed because he enter ed 21 the plea to Count 2. 22 END OF PROCEEDINGS AT 10:33 A.M. 23 24 25

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