Opinion
Nos. 04 Civ. 10172 (DC), 03 Cr. 362 (DC).
June 14, 2005
NEIL FORMISANO, Petitioner Pro Se FCI Schuykill, Minersville, PA.
DAVID N. KELLEY, ESQ., United States Attorney for the Southern District of New York, New York, NY, Attorney for Respondent, Katherine Polk Failla, Esq., Assistant United States Attorney.
MEMORANDUM DECISION
Pro se petitioner Neil Formisano moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the ground that he was denied effective assistance of counsel in violation of the Sixth Amendment of the U.S. Constitution. For the reasons set forth below, the motion is denied.
Because I find that "[i]t plainly appears from the face of the [section 2255] motion and . . . the prior proceedings in the case that [Formisano] is not entitled to relief," I do not order the United States Attorney to file an answer to the instant motion. See Rules Governing Section 2255 Proceedings for the U.S. Dist. Courts 4(b); Armienti v. United States, 234 F.3d 820, 822-23 (2d Cir. 2000).
BACKGROUND
A. FactsBetween July 1999 and October 2002, Formisano, along with others associated with eWealth Holdings, Inc. ("eWealth"), engaged in a scheme to defraud private investors using U.S. postal and telephone services. (Plea Tr. at 12-14). Formisano and his co-conspirators arranged to market and sell debt and equity securities issued by eWealth. (Id. at 12-13). To encourage sales, Formisano falsely informed prospective buyers that the company was under contract to purchase a bank. (Id.). Further, in January 2000, Formisano conspired to solicit customers of FLP Gilmour Associates to participate in a private placement offering of eWealth stock by making unfounded and misleading representations. (Id.). Roughly 134 individuals invested $9.8 million with eWealth as a result of this scheme and all of this money was lost. (PreSentence Investigation Report at ¶¶ 59, 60, pp. 33, 35, A; Sentencing Tr. at 5, 7, 16). Formisano later used a portion of the proceeds obtained from these fraudulent sales for his personal use. (Plea Tr. at 14; Plea Agreement at 5).
B. Procedural History
On March 21, 2003, Neil Formisano pled guilty before Magistrate Judge Frances to an Information charging him with one count of conspiracy to commit securities fraud, mail fraud and wire fraud, in violation of 18 U.S.C. § 371, and one count of securities fraud, in violation of 15 U.S.C. §§ 78(b) and 78(ff) and 17 C.F.R. § 240.10b-5. Formisano entered into a plea agreement on March 18, 2003, stipulating to a sentencing range of 70 to 87 months and to the imposition of restitution in the amount of $6 million. The agreement also contained a waiver of Formisano's right to appeal any sentence imposed within or below the stipulated range. (See Plea Agreement at 2-3, 5).
On November 20, 2003, this Court sentenced Formisano to concurrent terms of imprisonment of 78 months on each count, to be followed by a three-year supervised release period. The Court also imposed the mandatory special assessment fee of $200 and set restitution in the amount of $9,798,950, on a joint and several basis with his co-conspirators. The Court also ordered Formisano to forfeit various property interests for government sale, the proceeds to be distributed to the victims.
Formisano's co-conspirators were sentenced as follows: On August 6, 2003, Judge Cote sentenced Steven Mastrosimone to 46 months' imprisonment, to be followed by a three-year period of supervised release. Judge Cote also imposed restitution in the amount of $386,638. On December 10, 2003, Judge Casey sentenced Michael Formisano to 85 months imprisonment, to be followed by a three-year period of supervised release. Judge Casey also imposed restitution in the amount of $9,798,950. On April 6, 2005, Judge Koeltl sentenced Jonathan Aronica to four years' probation and imposed restitution in the amount of $9,798,950.
Formisano did not appeal his conviction. Instead, on December 24, 2004, Formisano filed the instant motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence, alleging ineffective assistance of counsel.
DISCUSSION
A. Waiver of Rights 1. Applicable lawIn his plea agreement, Formisano explicitly agreed that he would "not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the stipulated Sentencing range." (Plea Agreement at 5). Because Formisano's 78-month sentence was within the stipulated range of 70-87 months, his arguments are foreclosed, unless Formisano successfully challenges the validity of his plea agreement.
The Second Circuit has held that waivers of the right to appeal or otherwise challenge a sentence are enforceable:
In no circumstance . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless.United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993); see also United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998) (upholding plea agreement waiver provision).
The Second Circuit has also held, however, that "a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been produced, here, the plea agreement." Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) (citing Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001) (per curiam) (citations omitted)). Accordingly, the district court "does not automatically enforce § 2255 waivers in the face of ineffectiveness of counsel, as such claims `may call into question the very legitimacy of the § 2255 waivers.'"Itzkowitz v. United States, No. 04 Civ. 63 (DC), 2004 WL 1672451, at *2 (S.D.N.Y. July 27, 2004) (citing Mendez v. United States, No. 01 Civ. 2924 (RMB), 2002 WL 226693, at *2 (S.D.N.Y. Feb. 13, 2002) (quoting Paulino v. United States, No. 01 Civ. 1174 (LBS), 2001 WL 630486, at *2 (S.D.N.Y. June 6, 2001))).
2. Analysis
Formisano's motion must be denied because he waived his right to appeal or otherwise challenge his sentence.
First, Formisano makes no specific allegations of coercion or misrepresentation with respect to his decision to enter into the plea agreement. Second, any such allegations would be refuted by petitioner's sworn statements during the plea hearing that (1) he had a full opportunity to discuss the consequences of his plea agreement with counsel, and (2) he understood the contents of the plea agreement. (Plea Tr. at 6-10). Third, the Court specifically addressed the waiver of appeal provision contained in the plea agreement, and Formisano acknowledged that he understood its implications. (Id. at 10). Fourth, as discussed below, Formisano's ineffective assistance of counsel claim fails on the merits.
Consequently, I find that the plea agreement is valid. Because I sentenced Formisano to a term within the stipulated guideline range, he has waived his right to challenge his sentence and the instant motion must be denied on this basis alone.
B. Ineffective Assistance of Counsel
Assuming, arguendo, that Formisano has not waived his right to challenge his sentence, he has demonstrated no basis for relief based on counsel's performance during the sentencing proceedings.
1. Applicable Law
To prove ineffective assistance of counsel, Formisano must show that (1) his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) he was prejudiced by counsel's deficient performance.See Strickland v. Washington, 466 U.S. 668, 686-88 (1984);United States v. Vegas, 27 F.3d 773 (2d Cir. 1994).
When applying the Strickland test, "judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. "The court's central concern is not with `grading counsel's performance,' . . . but with discerning `whether despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.'" United States v. Aguirre, 912 F.2d 555, 561 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 696-97). 2. Analysis
Formisano contends that he was denied effective assistance of counsel because (1) he received a higher sentence than a co-conspirator who was also charged with a leadership role, and (2) because restitution was set at an inflated and unproven sum.
To the extent that Formisano argues that he pled guilty "without [an] understanding of the consequence," his affirmative answers to Judge Francis's inquiries regarding the particular terms and conditions connected with his plea clearly refute this assertion. (See Pet. at 5; Plea Tr. at 6-12).
To begin, Formisano does not claim that his attorney provided ineffective assistance throughout the plea process, but rather at the time of sentencing. "If we were to allow a claim of ineffective assistance of counsel at sentencing as a means of circumventing plain language in a waiver agreement, the waiver of appeal provision would be rendered meaningless." United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998). Here, the plea agreement's waiver encompasses any challenge to his sentence, and Formisano — apparently unhappy with the sentence imposed — cannot couch any complaints regarding his sentence within a claim of ineffective assistance. (See Plea Agreement at 5).
Nevertheless, a review of the record shows that Formisano's attorney provided competent representation both at the plea and sentencing. Though Formisano was not specifically asked at his plea whether he was satisfied with his counsel's performance, nothing in the record indicates that his attorney was ineffective. Furthermore, though he had ample opportunity, Formisano never expressed any dissatisfaction with counsel. In fact, the proceedings demonstrate that Formisano was afforded more than adequate representation. Counsel was familiar with the details of this case and Formisano's personal history, evidencing the meaningful relationship counsel established with his client. Additionally, Formisano stated that counsel reviewed and discussed both the plea agreement and the applicable sentencing guidelines with him. (Plea Tr. at 5-10). He also affirmed that he had not been threatened or otherwise unduly influenced in his plea. (Id. at 10). Counsel's representation was not deficient nor did it result in any prejudice to Formisano.
Second, Formisano's evidence of ineffective representation — that he received a purportedly higher sentence than an equally culpable co-conspirator and that the imposed restitution was inflated and unproven — are without merit. Generally, disparities in sentences among co-conspirators are not reviewable. United States v. Perez, 904 F.2d 142, 147 (2d Cir. 1990). "Absent extraordinary circumstances, a defendant has no constitutional or otherwise fundamental interest in whether a sentence reflects his or her relative culpability with respect to his or her co-defendants." United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995). Here, no such circumstances exist. As I noted at the sentencing hearing, counsel "quite eloquently" argued for the lowest possible sentence, yet I was unpersuaded given the circumstances surrounding the case, and imposed a sentence higher than two of his co-conspirators received but within the stipulated guidelines range. (Sentencing Tr. at 7-11, 21).
Finally, with regard to the imposed restitution, Formisano's claim that my assessment was based on an unproven and inflated calculation fails. Ample evidence demonstrated that restitution was accurately based on the total sum the victims lost as a result of their fraudulently induced investments. (Id. at 5, 21-22; PreSentence Investigation Report at p. 13). Additionally, though Formisano and his co-conspirators and colleagues used a portion of the funds for legitimate business purposes, millions of dollars remain unaccounted for and ultimately, the victims will go uncompensated. (Sentencing Tr. at 16-17, 21-22). Considering these facts, the Probation Office recommended that I impose $9.8 million in restitution to compensate the victims for their full loss. (PreSentence Investigation Report, Sentencing Recommendation at 35). Furthermore, though the parties stipulated in the plea agreement to $6 million in restitution, the agreement was not binding on me and I had the power to impose an amount that I believed was appropriate under the circumstances. (Plea Agreement at 2, 4). In light of the undisputed evidence that the total loss to the investors was $9.8 million, any further effort by counsel to lobby for a lower amount of restitution would have been meritless. Thus, the fact that counsel did not ask the court at sentencing to impose a lower amount of restitution was not ineffective.
CONCLUSION
Petitioner has demonstrated no basis for relief under 28 U.S.C. § 2255. Accordingly, the motion is denied. Because petitioner has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253 (1996) (as amended by the Antiterrorism and Effective Death Penalty Act). I certify pursuant to 28 U.S.C. § 1915(a) (3) that any appeal taken from this decision would not be taken in good faith.The Clerk of the Court shall close this case.
SO ORDERED.