Opinion
02-CV-0785E, 97-CR-56E
June 26, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
On November 16, 2001 petitioner pled guilty, pursuant to a June 28, 1999 plea agreement, to violating 21 U.S.C. § 846 (1999) — Conspiracy to Possess With Intent to Distribute Methamphetamine. The June 28, 1999 plea agreement contains the following pertinent provisions.
"The defendant agrees to plead guilty to Count 1 of the Second Superceding Indictment which charges a violation of Title 21, United States Code, Section 846 (conspiracy to possess with intent to distribute and to distribute 100 grams or more of methamphetamine) which carries a possible sentence of a term of imprisonment of at least 20 years up to a maximum of life imprisonment, a fine of $4,000,000, or both, a mandatory $100 special assessment and a term of supervised release of at least 10 years and up to life. The defendant understands the penalties set forth in this paragraph are the maximum penalties that can be imposed by the Court at sentencing." June 28, 1999 Plea Agreement, Resp't's Mot. to Dismiss, Ex. B ¶ 1.
"The government agrees to move at sentencing to strike all but one of the three prior felony convictions noted in the Information filed on June 11, 1999, pursuant to Title 21, United States Code, Section 851. The defendant understands that in the event the government does not move to strike these felony convictions, the defendant would be subject to a mandatory term of life imprisonment." Id. ¶ 2.
"The government and the defendant agree that Guidelines §§ 2D1.1(a)(3) and 2D1.1(c)(2) apply to the offense of conviction and has a base offense level of 36." Id. ¶ 7.
"The government and the defendant agree that the following adjustments to the base offense level does [sic] apply:
The 2 level upward adjustment of Guidelines § 3B1.1(c) (aggravating role in offense)." Id. ¶ 8.
"Based on the foregoing, it is the understanding of the government and the defendant that the adjusted offense level for the offense of conviction is 38." Id. ¶ 9.
"At sentencing, the government agrees to not oppose the recommendation that the Court apply the three (3) level downward adjustment of Guidelines §§ 3E1.1(a) and (b) (acceptance of responsibility), which would result in a total offense level of 35." Id. ¶ 10.
"The government and the defendant agree not to move for, request, recommend or suggest any upward or downward adjustments or departures other than those specifically set forth in this agreement. A breach of this paragraph by a party shall relieve the other party of any agreements made herein with respect to departure motions and recommendations regarding the sentence to be imposed." Id. ¶ 11 (emphasis added).
"It is the understanding of the government and defendant that, with a total offense level of 35 and criminal history category of IV, the defendant's sentencing range would be a term of imprisonment of 240 to 293 months, a fine of $20,000 to $4,000,000, and a period of supervised release of 10 years. Notwithstanding this, the defendant understands that, at sentencing, the defendant is subject to the minimum and maximum penalties set forth in paragraph 1 of this agreement including 240 month mandatory minimum term of imprisonment." Id. ¶ 13.
"The defendant understands that Title 18, United States Code, Section 3742 affords a defendant a limited right to appeal the sentence imposed. The defendant, however, knowingly waives the right to appeal, modify pursuant to Title 18, United States Code, Section 3582(c)(2) and collaterally attack any sentence imposed by the Court which falls within or is less than the sentencing range set forth in Section II, notwithstanding the fact that the Court may reach that range by a Guidelines analysis different from that set forth in this agreement." Id. ¶ 18 (emphasis added).
The plea agreement was submitted and accepted by this Court and, in accordance therewith, the undersigned sentenced petitioner, on November 16, 2001, to a total term of 240 months of imprisonment followed by ten years of supervised release.
Petitioner subsequently filed a November 12, 2002 petition pursuant to 28 U.S.C. § 2255 seeking to vacate his sentence based on his contention that he was denied his Sixth Amendment right to receive effective assistance of counsel as protected by the United States Constitution. Specifically, petitioner argues that
"[d]efense counsel failed to argue a substantial assistance downward departure in regards to the criminal defendant's agreement and compliance with stating all true facts relevant to his involvement in the offense. Moreover, defense counsel failed to present this issue before the Court at sentencing, in spite of the fact that the government agreed to depart downward in light of such truthful statements. Had this occurred, the results would have been a sentence below the mandatory minimum." Pet. ¶ 12.
Respondent filed a December 5, 2002 motion to dismiss the petition essentially arguing, and showing evidence in support, that petitioner's counsel — David R. Addelman, Esq. — effectively represented petitioner throughout the criminal proceedings. In response to the motion to dismiss, petitioner has filed a motion to amend his petition pursuant to Rule 15(a) of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons set forth below, the respondent's motion will be granted and Morrill's motion to amend the petition will be denied.
The Court need not linger on the merits of petitioner's argument that he received ineffective assistance of counsel because it is well established that
"[i]n no circumstance *** may a defendant, who has secured the benefits of a plea agreement and knowingly waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. *** Furthermore, if the court 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. Accordingly, a defendant may not circumvent the waiver, pursuant to a plea agreement, of the right to appeal a certain sentence by alleging that he received ineffective assistance of counsel at the time of sentencing because his attorney failed to make certain arguments against the sentence imposed." DiBlasi v. United States, 2001 WL 967555, at *2 (W.D.N.Y. 2001) (internal quotations and citations omitted).
According to the express terms of the plea agreement, petitioner "knowingly [waived] the right to appeal, modify *** and collaterally attack any sentence imposed by the Court which [fell] within *** the sentencing range set forth in Section II ***." Mot. to Dismiss, Ex. B ¶ 18. Such a waiver is enforceable if it was "knowing and voluntary." See United States v. Salcido-Contreras, 990 F.2d 51, 51 (2d Cir. 1993) ("[K]nowing and voluntary waivers of a defendant's right to appeal a sentence within an agreed Guidelines range are enforceable."). Petitioner does not allege that he entered into the plea agreement unknowingly or involuntarily; rather, his allegation is that he received ineffective counsel at the time of sentencing. Petitioner is barred from making such an argument because he knowingly and voluntarily waived his right to appeal his appropriately imposed sentence. See Salcido-Contreras, at 52-53 (dismissing defendant's post-sentence appeal based on a provision in a plea agreement by which he had waived his right to appeal his sentence); United States v. Djelevic, 161 F.3d 104, 106-107 (2d Cir. 1998) (holding that defendant's argument in support of his motion to vacate his sentence — to wit, that his Sixth Amendment right to effective assistance of counsel had been violated at sentencing — was barred because he waived his right to appeal his sentence as provided for in a plea agreement). Respondent's motion to dismiss the petition will therefore be granted.
Section II of the plea agreement pertinently provides that the parties had agreed to an applicable sentencing range of 240-293 months of imprisonment according to the Sentencing Guidelines. See Mot. to Dismiss, Ex. B ¶¶ 4-14.
Next, the Court addresses petitioner's motion to amend his petition pursuant to FRCvP 15(a). Morrill's proposed amended petition seeks to add two new claims. The first is petitioner's argument that he received ineffective assistance of counsel at sentencing based on his contention that his counsel "should have litigated against the imposition of a two-level upward departure for the use of a special skill in committing the instant offense." Mot. to Amend Pet., p. 7. Petitioner's second claim is his allegation that he was induced to enter into the plea agreement based on the government's unfulfilled oral promise to make a motion pursuant to section 5K1.1 of the Sentencing Guidelines for a downward departure at sentencing. For the following reasons, plaintiff's motion to amend will be denied.
FRCvP 15(a) provides that leave to amend a pleading "shall be freely given when justice so requires" and whether to grant such leave is a matter of the trial court's judicial discretion. Where such amendment would be futile, however, leave to amend should be denied. Foman v. Davis, 371 U.S. 178, 182 (1962).
Petitioner's first proposed argument — viz., that his counsel's failure to object to a two-level upward departure constitutes ineffective assistance of his counsel — is without merit and effectively barred for the same reasons discussed above. Consequently, it would be futile to allow petitioner to amend his petition to add such a claim. Petitioner's other contention of an alleged oral promise by the government to move for a downward departure requires further analysis.
Petitioner contends that the government induced him to agree to the terms of the plea agreement by informing him that it would move for a downward departure, pursuant to section 5K1.1, at sentencing. Addelman's failure to apprise the Court at sentencing of such a promise, petitioner continues, further demonstrates that the petitioner received ineffective assistance of counsel because had he done so — and had the government in fact made such a motion ___, the Court would have had the discretion to sentence him to a term of imprisonment below the 240-month minimum threshold. Additionally, petitioner argues that the government's alleged promise should be enforced by this Court upon consideration of the decision in Santobello v. New York, 404 U.S. 257 (1971).
In considering whether to accept a plea agreement, a court presupposes a certain amount of "fairness in securing agreement between an accused and a prosecutor." Santobello, at 261. "The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known." Id. at 261-262. Thus, it is well settled that, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled." Id. at 262; see also Brady v. United States, 397 U.S. 742, 755 (1970) ("A plea of guilty entered by one fully aware of the direct consequences, *** must stand unless induced by threats ***, misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).") (citation omitted). However, in this case, petitioner's bare allegation of an unfulfilled oral promise by the government to make a section 5K1.1 motion at sentencing is belied by the express and contrary terms of the plea agreement.
The terms of the plea agreement control inasmuch as the interpretation of the plea agreement itself is to be done by the Court according to contract principles. See Salcido-Contreras, at 52 ("[W]e interpret plea agreements according to principles of contract law.").
First, the parties agreed "not to move for, request, recommend or suggest any upward or downward adjustments or departures other than those specifically set forth in this agreement." Mot. to Dismiss, Ex. B ¶ 11 (emphasis added). Nothing in such plea agreement provides for, or even mentions, the possibility that the government would file a motion for a downward departure under any circumstances. Secondly, the parties explicitly represented and agreed upon the following: "[t]his plea agreement represents the total agreement between the [petitioner] and the government. There are no promises made by anyone other than those contained in this agreement. This agreement supercedes any other prior agreements, written or oral, entered into between the government and the defendant." Id. ¶ 28 (emphasis added). Therefore, it would be futile to allow petitioner to amend his petition because his bare allegation of an unfulfilled oral promise by the government to make a section 5K1.1 motion is facially contradicted by the express terms of the plea agreement. Petitioner voluntarily and intelligently agreed upon those terms and neither he nor his counsel apprised this Court at sentencing of any oral promise by the government to move for a downward departure. The Court cannot allow petitioner to attempt to bootstrap his petition with allegations of an unfulfilled oral promise when such is expressly contradicted by the express terms of the plea agreement. To allow petitioner to proceed with his petition under such circumstances would allow him to circumvent the terms of the plea agreement and would serve to defeat the very purpose and role that plea agreements play as an integral part of the disposition of a criminal case.
Likewise, petitioner cannot bootstrap such allegations into a claim of ineffective assistance of counsel based on his contention that his counsel knew of the alleged promise yet failed to apprise the Court of such at sentencing.
See Santobello, at 261 ("Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.").
Furthermore, while the record reflects that the parties may have discussed the possibility that the government would move for a downward departure at sentencing, the fact that it eventually did not do so is insufficient, in this case, to invalidate the plea agreement. This is so because the alleged oral promise did not induce petitioner to plead guilty. Rather, the entire basis of the plea agreement was the fact that, in exchange for petitioner's cooperation, the government agreed to move at sentencing to strike all but one of petitioner's three prior felony convictions. Both parties fulfilled their obligations under the plea agreement. Petitioner subsequently testified as a government witness in a related trial and the government subsequently moved to strike all but one of petitioner's prior felony convictions at sentencing. Such thereby benefited petitioner by reducing his sentence from a statutorily imposed life sentence to one that included a mandatory minimum of 240 months. Thus, petitioner knew, "unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made," that the government would recommend a sentence that fell within the applicable guidelines — 240 to 293 months — and his plea was "in no sense the product of governmental deception; it rested on no `unfulfilled promise' and fully satisfied the test for voluntariness and intelligence." Mabry v. Johnson, 467 U.S. 504, 510 (1984).
Accordingly, it is hereby ORDERED that respondent's motion to dismiss the petition is granted, that petitioner's motion to amend his petition is denied and that the Clerk of this Court shall close this case.