Opinion
98 Civ. 6564 (RCC).
September 29, 2000.
Opinion and Order
Petitioner, Marlin Richardson, initiated this action on August 27, 1998, to vacate his sentence under 28 U.S.C. § 2255 ("Section 2255"). Petitioner contends that he was provided ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. For the reasons set forth below, Petitioner's motion is denied.
I. BACKGROUND
Petitioner was indicted on seventy counts of violating various federal laws relating to the importation and sale of wiretapping devices through his employment as general manager of Spy Factory, Inc. ("Spy Factory"). Specifically, he was charged with: (1) conspiracy to violate federal laws; (2) sale of devices primarily useful for surreptitious interception of wire, oral and electronic communications (3) sending through the mail and in interstate and foreign commerce the same devices; (4) unlawfully importing the same devices; (5) conspiracy to launder money; and (6) money laundering. The government sought criminal forfeiture of his property.
On March 3, 1997, Petitioner proceeded to trial in the United States District Court for the Southern District of New York, before the Honorable Sonia Sotomayor. Five days into the trial, Petitioner entered into a Plea Agreement (the "Agreement") with the government on three of the seventy counts. Petitioner pled guilty to conspiracy to: (1) violate federal law, (2) sell devices primary useful for surreptitious interception of wire, oral and electronic communications, and (3) unlawfully import the same devices. In return, the government agreed not to prosecute Petitioner for the remaining counts of the indictment.
Judge Sotomayor has since been elevated to the United States Court of Appeals for the Second Circuit and the case was reassigned to this Court.
Petitioner's co-defendants Ronald Kimball, Tracy Edward Ford and corporate defendant Spy Factory also pled guilty to various charges during this proceeding.
Under the Agreement, the parties stipulated that the three counts were to be grouped together pursuant to U.S.S.G. § 3D1.2, and that the applicable guideline would be U.S.S.G. § 2T3.1 ("section 2T3.1"), relating to smuggling and trafficking in smuggled property under U.S.S.G. § 3D1.3(b). The parties further agreed that an upward departure was warranted under section 2T3.1 Application Note 2 ("Note 2") because the importation of wiretapping devices is prohibited, and the duties evaded on the smuggled items did not adequately reflect the harm to society resulting from their importation. Additionally, the parties expressly agreed that the sentence should be based upon an alternative measure of the duty evaded, specifically, the increase in market value due to importation which amounted to approximately $1.7 million during the course of the conspiracy. The parties stipulated to a base offense level of 20, pursuant to the tax chart found in U.S.S.G. § 2T4.1(O); a three level increase for Petitioner's managerial role, pursuant to U.S.S.G. § 3B1.1(b); a two level increase pursuant to U.S.S.G. § 2T3.1(b)(1) because sophisticated means were used to impede discovery of the nature and existence of the offense; and a two point reduction pursuant to U.S.S.G. § 3E1.1(a) for Petitioner's acceptance of personal responsibility for his criminal conduct. Petitioner had no history of past criminal conduct, therefore the Agreement reflected a Criminal History Category of I. The parties agreed that the foregoing calculations resulted in a Guidelines level of 23 and a corresponding sentencing range of 46 to 57 months. The Agreement also contained a waiver of Petitioner's right to appeal, or "otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated guidelines range." Agreement at 4. In exchange for Petitioner's waiver, the government agreed not to "appeal any sentence within or above the stipulated Guidelines range." Id.
The parties agreed that the 1995 Sentencing Guidelines are applicable to Petitioner's Sentence. See Agreement at 2 n. 1.
Following Petitioner's guilty plea, a Presentence Report ("PSR") was prepared, which calculated the guideline offense level in the same manner contemplated by the Plea Agreement. At the sentencing hearing held on August 28, 1997, defense counsel stated that he had received the PSR and had no factual objections. Petitioner also indicated that he had read the report and had no objections. After allowing the parties to address the Court, Judge Sotomayor sentenced Petitioner to 46 months incarceration and two years supervised release, and then dismissed the open counts.
Petitioner did not file a direct appeal. Trial counsel's former partner was permitted to remain on Petitioner's case for purposes of assisting with the Bureau of Prison's placement of Petitioner and the filing of a section 2255 motion. In a letter dated June 14, 1998, however, the partner indicated his belief that a section 2255 motion may be appropriate, but that it would be improper for him to file it in light of his prior association with trial counsel. Thereafter, the Court appointed counsel to represent Petitioner. Counsel concluded that Petitioner had no basis for a section 2255 motion.
On August 27, 1998, Petitioner moved to vacate his sentence on the grounds that he was denied effective assistance of counsel based on trial counsel's stipulation to an incorrect sentencing range and failure to challenge the application of section 2T3.1 Note 2 to the facts of his case.
Following the filing of a pro se motion to vacate, the Court granted Petitioner's newly retained counsel permission to represent Petitioner on a pro hac vice basis. Counsel filed an amended motion to vacate on behalf of Petitioner.
II. DISCUSSION
The government contends that Petitioner explicitly waived his right to contest the sentence, and thus the Court need not reach the merits of Petitioner's claims. In the Plea Agreement, Petitioner stipulated to a sentencing range of 46-57 months and expressly waived his right to appeal or collaterally challenge a sentence within that range. Although the 46-month sentence clearly falls within the agreed upon range (and is the most lenient within that range), Petitioner argues that the waiver should not be enforced.Even if Petitioner's waiver is excused, Petitioner still must demonstrate that he received ineffective assistance of counsel in order to prevail on the merits. Petitioner must prove first that counsel's performance fell below an objective standard of reasonableness, and second that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052 (1984). Petitioner does not satisfy either prong of that standard.
A. WAIVER OF 28 U.S.C. § 2255 MOTION
Generally, a defendant's knowing and voluntary waiver of his right to challenge a sentence within the agreed-upon sentencing range is enforceable. See United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997); Valente v. United States, 111 F.3d 290, 292-93 (2d Cir. 1997); United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). To be valid, "`[w]aivers of constitutional rights [in plea agreements] not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.'" United States v. Ready, 82 F.3d 551, 556 (2d Cir. 1996) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463 (1970)). Petitioner argues that his waiver was not voluntary and knowing. Petitioner asserts that he was never informed by counsel that his base offense level would have been lower if predicated upon the duties evaded rather than the increase in market value, and if informed, Petitioner would not have waived his right to challenge the sentence.
Courts generally are reluctant to permit a defendant who has secured the benefits of a plea agreement to appeal the merits of a sentence conforming to that agreement. See Salcido-Contreras, 990 F.2d at 53 ("Such a remedy would render the plea bargaining process and the resulting agreement meaningless."). The Second Circuit has rejected ineffective assistance of counsel claims when defendant "in reality is challenging the correctness of his sentence under the Sentencing Guidelines, and is therefore barred by the plain language of the waiver contained in his plea agreement with the government." United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) (per curiam).
Here, the Petitioner stated at his plea proceeding that he had read the Agreement, that he was satisfied with counsel's representation, that he had discussed the consequences of his plea with counsel, and that nothing had been left out of the Agreement. See Plea Transcript at 10, 28. Petitioner's responses to the Court's detailed questioning suggest that he voluntarily and knowingly secured the benefits of his plea bargain.
Nonetheless, any waiver of the right to appeal in a plea agreement "must be closely scrutinized and applied narrowly."United States v. Rosa, 123 F.3d 94, 98 (2d Cir. 1997). Under the Agreement, Petitioner retained a limited right to appeal his sentence. Specifically, the Agreement states that, "any appeal as to the defendant's sentence that is not foreclosed by this provision will be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) the . . . stipulation." Plea Agreement at 4-5. However, even if the Court were to disregard Petitioner's waiver, Petitioner's section 2255 motion fails on the merits. B. INEFFECTIVE ASSISTANCE OF COUNSEL
In general, a party who fails to raise an issue on direct appeal cannot subsequently raise that issue in a section 2255 motion unless he can "show that there was cause for failing to raise the issue, and prejudice resulting therefrom." United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995) (citations omitted). A defendant may, as Petitioner does here, assert claims in a section 2255 motion that were not litigated through direct appeal due to ineffective assistance of counsel. See e.g., United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997).
Petitioner contends that trial counsel provided ineffective assistance by:
a. In stipulating, and recommending that [Petitioner] stipulate, to a base offense level of Level 20 — eight levels above [Petitioner's] "actual" guideline range;
b. In failing to object to the Probation Officer's determination that [Petitioner's] base offense level was Level 20;
c. In failing to point out — either in objections to the PSR or at the sentencing hearing — that a base offense level of 20 constituted an upward departure;
d. In failing to inform the Court of Petitioner's "actual" guideline range;
e. In failing to respond to the Court's question at sentencing, as to whether the seriousness of the offense had been overstated, with specific information regarding Petitioner's "actual" guideline range;
f. In failing to request that the Court make a specific finding on the record that it was upwardly departing; and
g. In failing to request that the Court state on the record its reasons for upwardly departing, and its reasons for the extent of the departure.
Memorandum in Support of Petitioner's Amended Motion to Vacate and Set Aside Sentence ("Pet. Amend. Mem.") at 16-17.
In calculating Petitioner's sentence, the Agreement, the PSR and ultimately the sentencing court referred to section 2T3.1 Note 2, which reads:
Particular attention should be given to those items for which entry is prohibited, limited, or restricted. Especially when such items are harmful or protective quotas are in effect, the duties evaded on such items may not adequately reflect the harm to society or protected industries resulting from their importation. In such instances, an upward departure may be warranted. A sentence based upon an alternative measure of the "duty" evaded, such as the increase in market value due to importation, or 25 percent of the items' fair market value in the United States if the increase in market value due to importation is not readily ascertainable, might be considered.
U.S.S.G. § 2T3.1 Note 2. Because section 2T3.1 "is designed to address violations involving revenue collection or trade regulation," a defendant's base offense level is based upon the "tax loss" to the government. U.S.S.G. § 2T3.1 Introductory Commentary (1995). "For purposes of this guideline, the `tax loss' is the amount of the duty [evaded}." U.S.S.G. § 2T3.1(a).
Under section 2T3.1 Note 2, an alternate measure of the duty evaded — i.e., the $1.7 million increase in the value of the wiretapping devices due to importation — was used to determine Petitioner's base offense level of 20. Although this figure was expressly agreed to by the parties, Petitioner argues that his sentence was based upon an improper construction of the guideline. Pet. Amend. Mem. at 9. Petitioner argues that the construction of § 2T3.1 Note 2, as applied by the Agreement, the PSR and the sentencing court, resulted in an "implicit upward departure." Id. Petitioner therefore asserts that the Court was never informed of his actual guideline range. Id. at 9-10.
Petitioner offers three alternative calculations of his base offense level. The first calculation is based upon the $500,000 that Spy Factory paid for the imported wiretapping devices over the course of the conspiracy. Indictment at ¶ 21(c). According to a licensed customs broker, the duty payable on these devices during 1992, 1993 and 1994 was ¶ percent of the transaction value. Applying this rate, the government's tax loss amounts to $30,000. Therefore, according to the corresponding tax chart in § 2T4.1, Petitioner's base offense level would have been 12. After the applicable five-level increase and two-level reduction, Petitioner's total offense level would have been 15, resulting in a sentencing range of 18 to 24 months.
On September 30, 1998, Petitioner's counsel interviewed a licensed customs broker to determine the duty owing on the devices.
Petitioner's second calculation is based on the premise that a total offense level of 15 overstates the government's loss because Spy Factory did pay a duty on the imported devices. Applying this second calculation, Petitioner contends that he should be credited for the amount of duty that Spy Factory paid. The Court notes, however, that although Spy Factory paid a duty of approximately $24,500, it fraudulently listed the wiretapping devices as microphones for customs purposes, thereby allowing Spy Factory to pay a lower rate of 4.9 percent.
This amount is based on the statements of the customs broker interviewed by Petitioner's counsel. A 4.9 percent duty on $500,000 equals $24,500.
In United States v. Dall, although the defendant paid duties on imported drugs, "they were adulterated under the FFDCA [Federal Food, Drug, and Cosmetics Act], and therefore were imported contrary to law." United States v. Dall, 918 F.2d 52, 53 (8th Cir. 1990). The district court applied section 2T3.1 Note 2, and "credited [defendant] for the duties he paid on the drugs imported into the United States under false pretenses." Id. at 54. In Dall, only the illegality of the imported drugs was at issue. In contrast, Spy Factory reported importing an entirely different item, enabling it to pay a lower rate.
Third, Petitioner argues that, even if the entire $1.7 million increase in market value is taken into account, the sentence should reflect only the duties evaded on that amount. Under this "duties evaded" theory, Petitioner's base offense level would have been 14, his total offense level would have been 17, and his resulting sentence would have been 24 to 30 months. 1. Objective Standard of Reasonableness Under Strickland
This base offense level corresponds to $102,000 the 6 percent duty evaded on the total $1.7 million figure.
Under Strickland, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Defense counsel does not have a constitutional duty to "press nonflivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308 (1983). Therefore, Petitioner must show that trial counsel's failure to object to the sentence was "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.
Although Petitioner's suggested calculations are compelling, they do not undermine the validity of the calculation applied in the Agreement, the PSR and at the sentencing hearing. As Petitioner himself concedes, no particular method of calculating the government's loss was mandated expressly in the guidelines. Section 2T3.1 Note 2 expressly permits utilization of an alternative measure of the duty evaded. This valuation was laid out in both the Plea Agreement, which Petitioner stated that he read and understood, and the PSR, which was adopted by the sentencing court. Thus, the issue of the applicable offense level was thoroughly discussed. Further, Judge Sotomayor addressed the issue of whether any additional downward departures were warranted, and ultimately decided that none were appropriate. As a result, Petitioner's trial counsel's failure to object to the calculation both at sentencing and on appeal was objectively reasonable and certainly not commensurate with having no counsel at all. 2. Showing of Prejudice Under Strickland
Petitioner erroneously relies upon United States v. Ford, 918 F.2d 1343 (8th Cir. 1990), for the proposition that an attorney's failure to object to a base offense level may be the "equivalent to . . . having no trial counsel at all." Ford, 918 F.2d at 1350. One month prior to defendant Ford's sentencing, Congress had amended the sentencing guidelines to permit a two level reduction in a career offender's sentence if the offender accepts responsibility for his conduct. Ford's defense counsel failed to argue for the reduction. Here, however, no specific reduction was clearly warranted.
Even if trial counsel's failure to object or alert the Court to Petitioner's "actual sentence" was unreasonable, the analysis under Strickland requires Petitioner to prove "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. Establishing prejudice necessitates "an affirmative showing of `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000) (citations omitted). In order to show the requisite prejudice, the Second Circuit has held that Petitioner must demonstrate "but for" counsel's errors he would have pled not guilty and proceeded to trial. United States v. Coffin, 76 F.3d 494, 498 (2d Cir.), cert.denied, 517 U.S. 1147 (1996).
Petitioner cannot satisfy this requirement. Petitioner does not claim that, if aware of counsel's alleged errors, he would have pled not guilty and proceeded to trial, where he faced a possible conviction on seventy counts. Petitioner expressly was advised that he would be bound by his plea even if the Court were to impose a stricter sentence than called for in the Agreement. Plea Transcript at 24-25. Petitioner made no objection.
Moreover, regardless of how Petitioner's sentence was calculated, Judge Sotomayor determined it to be appropriate. Expressing concern that a 46 to 57 month range overestimated both Petitioner's role in the conspiracy and the government's tax loss, Judge Sotomayor considered a reduction of Petitioner's 46 month sentence but ultimately rejected that possibility. Petitioner received a substantial benefit under the terms of the Agreement. In exchange for his guilty plea, the government dismissed the sixty-seven remaining counts of the indictment. Had these counts not been dismissed, Petitioner may have been subject to a sentencing range of 70 to 87 months on the money laundering counts alone.
Petitioner argues that Judge Sotomayor did not adequately address the Court's ability to depart from the sentencing range. At sentencing, Judge Sotomayor requested further briefing on the issues of departure and the appropriateness of the sentence. Although Petitioner was sentenced prior to such briefing, subsequent correspondence between Judge Sotomayor and Petitioner's attorney obviated the need for such briefing.
III. CONCLUSION
For the foregoing reasons, Petitioner's motion to vacate his sentence is denied.