Opinion
Crim. File. No. 04-04 (PAM/RLE).
January 21, 2005
MEMORANDUM AND ORDER
This matter is before the Court on several Motions filed by Defendant Darius Ramanauskas. For the reasons that follow, the Court denies the Motions.
BACKGROUND
Defendant, a Lithuanian citizen, was charged in a thirty-four count Indictment for conspiring to deal in counterfeit United States currency in violation of 18 U.S.C. §§ 371 and 473, and for passing counterfeit currency in violation of 18 U.S.C. §§ 2 and 472. On May 4, 2004, Defendant pled guilty to Counts One and Sixteen of the Indictment. In exchange for Defendant's plea, the Government moved to dismiss the remaining thirty-two counts at the time of sentencing. Attorney Virginia Villa of the federal Public Defender's Office represented Defendant in the defense of the charges.
Defendant's violation of 18 U.S.C. § 473 resulted in a base offense level of nine. The pre-sentence investigation revealed that the total face value of the counterfeit currency equaled $12,850, which resulted in a four-level increase. Because part of the offense was committed outside of the United States, another two-level increase was added. Finally, because Defendant was identified as a manager or supervisor of criminal activity that involved five or more participants, the offense level was increased another three levels. Thus, Defendant faced a total offense level of fifteen. When coupled with Defendant's criminal history score of one, the sentencing range was eighteen to twenty-four months.
Prior to sentencing, Defendant objected to the loss amount finding in the pre-sentence report. He argued that the plea agreement stated that the amount of loss was "at least $8,500" and that he did not plead guilty to the higher loss amount. The Court rejected this argument and adopted this portion of the pre-sentence investigation report.
Defendant also sought a downward departure under United States Sentencing Guidelines § 5K2.23 based on time previously served for a separate counterfeiting conviction. Because Defendant's prior offense did not affect the offense level for sentencing in this matter, the Court found that the downward departure was unwarranted. See U.S.S.G. §§ 5G1.3(b); 5K2.23. The Court sentenced Defendant to eighteen months imprisonment on Counts One and Sixteen to run concurrently.
DISCUSSION
Defendant has filed several Motions relating to his conviction and sentence. First, Defendant argues that the Court lacked subject matter jurisdiction to sentence him because the statutes under which he was convicted are unconstitutional. Second, Defendant asserts various allegations of ineffective assistance of counsel. Defendant also seeksin forma pauperis ("IFP") status, requests that the Court order the Clerk of Court to copy all documents in this matter to Defendant, and requests that the Court order correctional officials to provide Defendant with paper, pens, and pre-paid envelopes.
A. Standard of Review
Relief under § 2255 "is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Petitions for relief pursuant to § 2255 are not substitutes for direct appeal, and claims not raised on direct appeal generally cannot be addressed in § 2255 motions. Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997).
B. Subject Matter Jurisdiction
Defendant argues that the United States Code is unconstitutional because it does not contain enacting clauses and titles of the statutes under which Defendant was convicted. According to Defendant, the Court lacks subject matter jurisdiction to impose a sentence upon him.
Defendant's argument lacks merit. This Court has subject matter jurisdiction over federal criminal offenses committed within its geographic jurisdiction. See 18 U.S.C. § 3231 ("The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, or all offenses against the laws of the United States."). Moreover, the United States Constitution does not require that codification of statutes include enacting clauses and titles of the legislation.
Several state courts have recently addressed similar challenges to codifications of state statutes. All have held that the official compilation of the statute session laws need not contain enacting clauses. See Ledden v. State of Minnesota, 686 N.W.2d 873, 875-77 (Minn.Ct.App. 2004); People v. Washington, 969 P.2d 788, 789-90 (Colo.Ct.App. 1998); State of Minnesota v. Ekblad, No. A03-1617, 2004 WL 2591246 at *2 (Minn.Ct.App. Nov. 16, 2004); Taylor v. State of Minnesota, No. A04-383, 2004 WL 2283507 at * 1-*2 (Minn.Ct.App. Oct. 12, 2004). Likewise, federal courts have affirmed decisions finding several statutes constitutional, notwithstanding the fact that the codification of the statutes lacked enacting clauses. See Kautz v. Reid, 28 Fed. Appx. 770, 771-72 (10th Cir. 2001); Stevens v. State of Colorado, 18 Fed. Appx. 779, 780 (10th Cir. 2001).
The Court also rejects Defendant's argument that the United States Code is unconstitutional because it does not contain enacting clauses. Each of the statutes under which Defendant pled guilty were published with enacting clauses in the congressional legislative enactments. See Comprehensive Antiterrorism Act of 1995, H.R. Rep. 104-383 (Dec. 5, 1995), 1995 WL 731698; Financial Anti-Terrorism Act of 2001, H.R. Rep. 107-205(1) (Oct. 17, 2001), 2001 WL 1249988; Anti-Counterfeiting Act Amendments of 2004, H.R. Rep. 108-600 (July 13, 2004), 2004 WL 1578020; Identity Theft Penalty Enhancement Act, H.R. Rep. 108-528 (June 8, 2004), 2004 WL 1260964; Civil Asset Forfeiture Reform Act, H.R. Rep. 105-358(1) (Oct. 30, 1997), 1997 WL 677201. Although the United States Code is prima facie evidence of the laws of the United States, it is not the laws themselves. Rather, the laws are codified in the United States Code to provide the public with a usable collection of the federal laws. There is no requirement that the United States Code republish enacting clauses. Because the Court had subject matter jurisdiction to accept Defendant's plea and sentence him for his crimes, Defendant's Motion on this point is denied.
C. Ineffective Assistance of Counsel
Ineffective assistance of counsel is a cognizable claim under § 2255.United States v. Smith, 843 F.2d 1148, 1150 (8th Cir. 1988). To prove ineffective assistance of counsel, Defendant must establish both that his counsel's representation was deficient, and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficiency, Defendant must show that his counsel made errors so serious that Defendant was deprived of his Sixth Amendment right to counsel. Id. at 687. Review of counsel's performance is deferential, as a presumption exists that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 689. To show prejudice, Defendant must prove that a reasonable probability exists that the result of the proceeding would have been different but for his counsel's errors. Id. at 694. Thus, he must show that the proceedings were rendered fundamentally unfair or unreliable by his counsel's deficient performance. El-Tabach v. Hopkins, 997 F.2d 386, 389 (8th Cir. 1993).
1. Relevant Conduct
Defendant claims that his counsel misrepresented the sentence Defendant would receive based upon relevant conduct set forth in the plea agreement. Specifically, Defendant objects to the loss amount finding, as well as the finding that he was involved in a criminal enterprise involving five or more participants was erroneous.
As an initial matter, Defendant cannot advance these arguments in a § 2255 motion. Ordinary questions of guidelines interpretations falling short of a miscarriage of justice are not cognizable under § 2255. Rather, they must be brought in a direct appeal. Auman v. United States, 67 F.3d 157, 160-61 (8th Cir. 1995). In this case, Defendant waived his right to directly appeal his sentence if he were sentenced to no more than twenty-four months. (Plea Agreement at ¶ 11.) Moreover, Defendant has not yet appealed these sentencing matters, and a direct appeal would now be untimely.
Furthermore, Defendant's arguments are baseless. Defendant expressly agreed that the loss amount was "at least" $8,500. (Plea Agreement at ¶ 8(b).) The pre-sentence investigation revealed that the face value of the counterfeit currency equaled $12,500. Likewise, Defendant agreed that a three-level enhancement was necessary since he "was a manager or supervisor and the criminal activity involved five or more participants or was otherwise extensive." (Id. ¶ 8(d)(1).) Nevertheless, Defendant now contends that the enhancement cannot apply because two of the alleged co-conspirators were not indicted or charged in this matter. However, individuals who are not indicted or tried, but who are nonetheless criminally responsible for a defendant's crime, are participants in a conspiracy under § 3B1.1 of the United States Sentencing Guidelines. United States v. Mendoza, 341 F.3d 687, 693 (8th Cir. 2003). Moreover, Defendant does not challenge that the criminal conduct at issue was otherwise extensive. (Plea Agreement ¶ 8(d)(1).) Thus, applying the three-level enhancement under § 3B1.1(b) was appropriate. See United States v. Francis, 367 F.3d 805, 823-24 (8th Cir. 2004) (discussing enhancement due to defendant's role in the offense).
2. Coercing Defendant to Lie about his Guilt
Defendant claims that his counsel was ineffective because she coerced him into pleading guilty. A guilty plea involves the waiver of several constitutional rights, and therefore must be made knowingly and voluntarily. The United States Supreme Court recently reiterated the duty an attorney has to consult with the client regarding defense strategy, including entering a guilty plea:
A defendant . . . has the ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal. Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.
A guilty plea . . . is an event of signal significance in a criminal proceeding. By entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial, including the right to trial by jury, the protection against self-incrimination, and the right to confront one's accusers. While a guilty plea may be tactically advantageous for the defendant, the plea is not simply a strategic choice; it is itself a conviction, and the high stakes for the defendant require the utmost solicitude. Accordingly, counsel lacks authority to consent to guilty pleas on a client's behalf; moreover, a defendant's tacit acquiescence in the decision to plead is insufficient to render the plea valid.Florida v. Nixon, 125 S.Ct. 551, 556 (2004) (internal citations and quotations omitted).
Defendant testified at the plea hearing that he had read the plea agreement and understood it. Defendant did not attempt to withdraw his guilty plea and made no objections during the proceeding. Likewise, he did not attempt to withdraw his guilty plea at the sentencing hearing. At the plea hearing, the Court asked Defendant whether anyone had attempted to coerce or intimidate him into pleading guilty. The Court also asked Defendant whether anyone had promised him any benefit outside of the plea agreement in exchange for his plea. Defendant responded in the negative to both questions.
"Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). Accordingly, the Court gives Defendant's statements at the plea hearing more weight than his unsworn allegations in his Motion. It is clear from the plea proceeding that Defendant's guilty plea was entered into knowingly and voluntarily.
3. Communication
Defendant claims a lack of proficiency in the English language and maintains that he did not understand the nature and elements of the charges against him. He contends that his counsel failed to communicate with him in a meaningful manner. However, his appearances in open court belie such a claim. At the plea hearing, the Court expressly asked Defendant whether he understood the charges pending before him, and that his guilty plea would waive his constitutional rights. Defendant affirmed that he understood. Moreover, Defendant has submitted several pro se Motions to the Court, clearly displaying his aptness for the English language.
4. Extradition
Defendant claims that his counsel provided him with improper legal advice regarding the impact of his plea on separate legal proceedings in Lithuania. In particular, he asserts that his counsel assured him that his guilty plea in this case could not result in him being extradited to Lithuania.
The pre-sentence investigation report notes that Defendant was facing deportation following a previous conviction when he was arrested and prosecuted in this case. Similarly, at the time of sentencing, defense counsel informed the Court that Defendant was facing prompt deportation when he was brought back to face the instant charges. With or without a plea, Defendant was being returned to Lithuania. Thus, Defendant was not prejudiced by any alleged misrepresentations by his counsel.
Indeed, Defendant cannot show prejudice at all. He agreed to a sentence between eighteen and thirty-seven months. (Plea Agreement ¶ 8(g).) The Court sentenced Defendant to eighteen months. A defendant waives objection to the sentence when he agrees to the applicable guidelines and accepts the benefits of a plea agreement. United States v. Fritsch, 891 F.2d 667, 668 (8th Cir. 1989); see also United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995). Because the Court sentenced Defendant to eighteen months, the low end of the range of possible sentence he expressly agreed to in his plea agreement, Defendant cannot now argue that he has been prejudiced by his counsel's representation. Accordingly, the § 2255 Petition, as well as the Motions relying on an ineffective assistance of counsel argument, are denied.
D. IFP Status and Writing Materials
Defendant has requested to proceed IFP under 28 U.S.C. § 1915(a). The Court may allow Defendant to proceed without prepayment of fees, costs or security upon an affidavit of Defendant testifying that he is unable to pay such costs, describing the nature of the appeal and his belief that he is entitled to redress. See 28 U.S.C. § 1915. However, because a filing fee is not required for filing a petition under § 2255, Defendant's Motion is moot.
Finally, federal law precludes the filing of successive motions for relief. See 28 U.S.C. § 2244(b)(3)(a) (requiring certification from Court of Appeals prior to filing successive habeas motion); see also Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2003). Because Defendant cannot file successive motions for relief, the Court finds that Defendant does not need the writing materials he requested and therefore denies his request.
CONCLUSION
Based on all the files, records, and proceedings herein, the Court finds that Defendant's arguments lack merit. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's Application to Proceed without Prepayment of Fees (Clerk Doc. No. 71) is DENIED as moot;
2. All other pending Motions (Clerk Docs. No. 72, 73, 75, 77, and 78) are DENIED as set forth in this Order.