Opinion
Civil Action No. 01-11534-GAO
August 19, 2002
AMENDED MEMORANDUM and ORDER
The petitioner, Robert S. Simons, seeks to have his sentence vacated pursuant to 28 U.S.C. § 2255. He alleges violations of (1) his Sixth Amendment right to effective assistance of counsel, (2) his right to have the government move for a reduction of his sentence pursuant to Fed.R.Crim.P. 35(b), and (3) his due process rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). The petition is DENIED.
Background
Simons was the owner of a discount computer store that sold stolen Microsoft software. On February 18, 1999, Simons pled guilty to one count of conspiracy to transport stolen property in interstate and foreign commerce ( 18 U.S.C. § 371), fifteen counts of transportation of stolen property in interstate and foreign commerce ( 18 U.S.C. § 2314), and twelve counts of money laundering ( 18 U.S.C. § 1956). On June 14, 1999, this Court sentenced him to seventy months of imprisonment, three years of supervised release, and restitution in the amount of $908,108.00.
Simons appealed the sentence, arguing that this Court erred in (1) calculating the "loss" caused by the crime under U.S.S.G. § 2B1.1(b)(1); (2) applying a sentencing enhancement because Simons was "in the business" of receiving and selling stolen property, U.S.S.G. § 2B1.1(b)(4)(B); and (3) imposing a restitution order and supervised release after certain errors at his plea colloquy which should have precluded them. The First Circuit affirmed this Court's sentence. United States v. Coviello, 225 F.3d 54, 59 (1st Cir. 2000). No petition for writ of certiorari was filed.
Standard of Review
Section 2255 authorizes vacation of a sentence if it was "imposed in violation of the Constitution or laws of the United States . . . or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ." 28 U.S.C. § 2255. A collateral attack in a § 2255 petition must "reveal `fundamental defect[s],' which, if uncorrected, will `result in a complete miscarriage of justice.'" David v. United States, 134 F.3d 470, 474 (1st Cir. 1998) (quoting Hill v. United States, 368 U.S. 424, 426-28 (1962)). When a petitioner raises claims in a § 2255 petition that were not raised on direct appeal, he must show cause for why the claim was not raised below and actual prejudice flowing from the alleged error. See Knight v. United States, 37 F.3d 769, 774 (1st Cir. 1994) (citing Coleman v. Thompson, 501 U.S. 722, 749-50 (1991)). The cause prong of this standard requires the petitioner to show that "some objective factor external to the defense" prevented the claim from being raised. See Coleman, 501 U.S. at 753 (internal quotations and citation omitted). "[T]he failure to bring a claim of ineffective assistance of counsel on direct appeal is not subject to the cause and prejudice standard." See Knight, 37 F.3d at 774. None of the claims in the present petition were presented on direct appeal.
Ineffective Assistance of Counsel
Simons alleges that his counsel, James L. Sultan, rendered ineffective assistance by misinforming him of the terms of the government's plea agreement offer. The government's initial plea offer involved a five-year term of imprisonment. Simons claims that Sultan told him that if he entered into the plea agreement, he would have to testify against his wife, Maxine Simons. Simons rejected the plea agreement offer, and the government subsequently brought a superseding indictment exposing Simons to a potential sentence of more than five years. Simons now alleges that he has "since learned, on information and belief" that the government would not have required him to testify against his wife. He claims that had his attorney accurately conveyed the conditions of the plea agreement, he would have accepted the plea and received a five-year sentence rather than the sentence of almost six years that he actually received.
The Strickland standard for assessing whether there was ineffective assistance of counsel requires proof (1) that the performance of the petitioner's counsel was deficient and (2) that the petitioner was prejudiced by the deficient performance. See Strickland v. Washington, 466 U.S. 668, 686-87 (1984). The petitioner must prove both prongs by a preponderance of the evidence. See Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. 1994). A failure to convey an offer of a plea agreement constitutes ineffective assistance of counsel, see United States v. Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991), but the Court need not credit the petitioner's "conclusory averments." See David v. United States, 134 F.3d 470, 478 (1st Cir. 1998) (affirming a district court's dismissal of a § 2255 petition without holding an evidentiary hearing regarding a petitioner's "threadbare allusions to a phantom plea bargain").
Simons offers nothing more than the assertion that "on information and belief" he has discovered that the government would not have required him to testify against his wife. Pet. at 2. It is clear that the bargain originally offered by the government included Simons' "cooperation." See Respondent's Opp'n Ex. 2 (AUSA letter to Simons' attorneys, dated February 25, 1998). In response to the government's offer, Simons' attorney told the AUSA that Simons was not interested in cooperating.
Simons offers no specifics about why the expected "cooperation" would have excluded testimony against his wife. Certainly nothing in the correspondence tends to that conclusion. In the absence of any factual support for his claim, the petitioner's implausible speculative assertion is insufficient to furnish a basis for relief under § 2255.
Fed.R.Crim.P. 35(b) Claim
Simons also asserts that while he was incarcerated, he learned that an individual was selling a cache of illegal automatic weapons and communicated this information to a Bureau of Prisons agent and to his attorney. He alleges that his attorney told him that he would convey the information to the AUSA. Simons claims that his attorney failed to convey the information to the AUSA and consequently no Rule 35(b) motion was filed.
The premise of this claim is plainly incorrect; Simons' lawyer did convey the information to the government. The government has provided the AUSA's handwritten notes, which establish that Attorney Sultan had informed the AUSA of the information that the petitioner provided regarding the weapons. Respondent's Opp'n Ex. 5. Moreover, a decision by a prosecutor not to file a motion pursuant to Fed.R.Crim.P. 35(b) is only reviewable if the petitioner alleges that the decision was based on an unconstitutional motive. See Wade v. United States, 504 U.S. 181, 185-86 (1992). No facts to support such an allegation are present here.
Due Process Claim
Simons argues his seventy-month sentence, a sentence at the low end of the applicable guideline range, violates the principles of due process as interpreted in Apprendi. See Apprendi, 530 U.S. at 490 ("[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").
The First Circuit has made clear that "[t]he rule in Apprendi only applies in situations where the judge-made factual determination increases the maximum sentence beyond the statutory maximum, and not in situations where the Defendant's potential exposure is increased within the statutory range." United States v. Baltas, 236 F.3d 27, 41 (1st Cir. 2001). If the defendant's sentence is "less than the default statutory maximum for violating [the relevant statute] . . . Apprendi is irrelevant." United States v. Eirby, 262 F.3d 31, 37 (1st Cir. 2001).
Simons' seventy-month sentence was less than the applicable statutory maximum. He received a sixty-month concurrent sentence for one count of conspiracy to transport stolen property in interstate and foreign commerce, which carries a maximum sentence of five years, see 18 U.S.C. § 371, and a seventy-month concurrent sentence for the fifteen counts of transportation of stolen property in interstate and foreign commerce, which carry maximum sentences of ten years each, 18 U.S.C. § 2314, and the twelve counts of money laundering, which carry maximum sentences of twenty years each, 18 U.S.C. § 1956(a)(1)(B)(i).
Conclusion
For all the foregoing reasons, the petition is DENIED.
IT IS SO ORDERED.