Opinion
Criminal No. 1:05cr112, Civil No. 1:05cv1053.
July 19, 2006
ORDER
This matter is before the Court on Benjamin Isaac's pro se motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Isaac claims that a sentence enhancement violated his constitutional rights and that he was ineffectively represented by counsel because his counsel did not dispute the constitutionality of the sentence enhancement, nor did counsel file an appeal when allegedly requested to do so by Isaac. At this time, oral argument is dispensed with because the facts and legal contentions are adequately set forth in the existing record and oral argument would not aid the decisional process.
See United States v. Yearwood, 863 F.2d 6, 7 (4th Cir. 1988) (recognizing that "[a] hearing is not required . . . on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief").
I.
On May 5, 2005, Isaac pled guilty to a one-count criminal information charging him with conspiracy to commit bank fraud, in violation of 18 U.S.C § 371. Prior to his plea, Isaac took a government-administered polygraph test on April 19, 2005. In the opinion of the polygraph examiner, Isaac did not provide truthful answers when he stated that his uncle, James Haywood ("Haywood"), was not involved in the bank fraud conspiracy. In addition, Isaac stated during his plea colloquy that Haywood was not involved in the conspiracy and further denied Haywood's involvement during a subsequent meeting with a probation officer. Prior to Isaac's sentencing, Haywood admitted that he was in fact involved in the conspiracy and pled guilty to a charge of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 371.In light of this, the government sought a two-level obstruction of justice enhancement to Isaac's advisory sentencing guidelines level pursuant to U.S. Sentencing Guidelines (hereinafter U.S.S.G. or "the Guidelines") § 3C1.1. In support of the obstruction of justice enhancement, the government argued that Isaac's untruthful statements regarding Haywood's involvement in the fraud hindered the government's investigation of the fraud. Isaac, by counsel, opposed the enhancement on the grounds that Haywood may not have actually been involved in the fraud despite his plea. See Transcript of Sentencing at 7-11; Defendant's Position with Respect to Sentencing Factors and Material Facts at 2-3. In the alternative, Isaac argued, even assuming Isaac's untruthfulness, the government could not show how this alleged untruthfulness hindered the government's prosecution of Haywood, who had been indicted before Isaac and later pled guilty. See Transcript of Sentencing at 12; Defendant's Position with Respect to Sentencing Factors and Material Facts at 3. At sentencing on July 22, 2005, the government's motion requesting a two-level enhancement for obstruction of justice was granted; however, Isaac also received a two-level reduction for acceptance of responsibility. Based on Isaac's total offense level of 16 and a criminal history category of VI, he was sentenced to fifty-seven months in prison, to be followed by three years of supervised release. Additionally, Isaac was ordered to pay $161,176.64 in restitution to the victims of his fraud. Isaac did not appeal his sentence or conviction to the Court of Appeals for the Fourth Circuit, as he waived his appeal rights as part of the plea agreement in this case. Isaac alleges though that after the sentencing proceeding he asked his counsel to file an appeal on his behalf.
The determination that Isaac had obstructed justice was based on factors other than the failed polygraph test. See Transcript of Sentencing at 14.
On September 6, 2005, Isaac filed this § 2255 motion to vacate his sentence because, he argued, he was ineffectively represented by counsel and the prosecutor engaged in misconduct. The government filed a brief in opposition to Isaac's motion to vacate on December 21, 2005. On February 16, 2006, Isaac filed a "Motion to Amend Original Section (sic) 2255 Pleading" and a "Proposed Amended § 2255 Motion." In the motion to amend, Isaac admits that his original § 2255 motion states no "claim[s] upon which relief can be granted." In the proposed amended motion itself, Isaac states that his claims in the amended motion are his "only claims under . . . § 2255." The government did not file a reply to Isaac's amended motion.
Isaac's "amended motion" is not an improper "second or successive" § 2255 motion. A prisoner may file a motion to amend an initial § 2255 motion if the district court has not yet adjudicated the initial § 2255 motion. See Ching v. United States, 298 F.3d 174, 176-78 (2d Cir. 2002); Charles A. Wright, Nancy J. King Susan R. Klein, 3 Federal Practice and Procedure § 602 n. 9 (3d ed. 2004). Thus, because Isaac's initial § 2255 motion was never adjudicated, his motion to amend is permissible.
Isaac's amended § 2255 motion raises two issues. First, Isaac alleges that the two-level enhancement on his sentence violated his Fifth and Sixth Amendment rights because the allegation of obstruction of justice was not proved beyond a reasonable doubt nor based on facts admitted by Isaac. Further, Isaac alleges that he was deprived of the effective assistance of counsel because his attorney should have objected to the sentence enhancement on constitutional grounds and because counsel refused Isaac's request to appeal the sentence.
II.
Isaac's initial claim, that his sentence enhancement for obstruction of justice violated his Fifth and Sixth Amendment rights, is without merit. Although mandatory sentencing guidelines were found unconstitutional in United States v. Booker, 543 U.S. 220 (2005), it is nonetheless well-settled that district courts must calculate a defendant's sentence by reference to the advisory Guidelines. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). In other words, in the post- Booker regime, it is necessary for a district court to calculate a defendant's Guidelines range precisely as it was formerly calculated but now that range serves as one of several advisory factors necessary to calculate a sentence. In referencing the Guidelines, a district court is required to consider "relevant factors" outside the base offense level both in 18 U.S.C § 3553(a) and in the Guidelines themselves. See Hughes, 401 F.3d at 546. One of these relevant factors is whether a defendant has obstructed justice pursuant to U.S.S.G. § 3C1.1; this was not a factor excised by Booker. See Booker, 543 U.S. 220, 258-59 (2005) (Breyer, J). Nor, it is settled, did Booker affect the standard of proof the government must meet to establish an obstruction of justice enhancement. This standard remains a "preponderance of the evidence," not "beyond a reasonable doubt" as Isaac argues. These principles, applied here, confirm that Isaac's constitutional rights were not violated by the two-level enhancement for obstruction of justice because of his persistent denials that his uncle was involved in the fraud.In addition, Booker permits the imposition of a sentence up to the maximum set by the "statute of conviction" for the crime that a defendant has either been found guilty of by a jury, or has admitted to committing by pleading guilty. See Hughes, 401 F.3d at 552-53 (citing Booker, 543 U.S. at 245). Here, Isaac admitted, by pleading guilty, that he violated 18 U.S.C. § 371. The statutory maximum sentence for a violation of § 371 is five years or sixty months. See 18 U.S.C. § 371. Isaac was sentenced to fifty-seven months, three months less than the statutory maximum for a violation of § 371. Thus, the sentence enhancement did not violate Isaac's constitutional rights because it did not increase Isaac's sentence beyond the maximum sentence permissible under the statute of conviction, 18 U.S.C. § 371. Therefore, Isaac's claim that his sentence enhancement violated his Fifth and Sixth Amendment rights fails because Isaac's obstruction of justice was properly considered and established by a preponderance of evidence, and the resulting enhancement of Isaac's sentence did not exceed the statutory maximum for the crime that Isaac admitted committing.
The Plea Agreement of May 5, 2005, states, in boldface type on the first page, that Isaac is pleading guilty to a violation of 18 U.S.C. § 371 for which the maximum penalty is "five years of imprisonment." Plea Agreement ¶ 1. In addition, the Plea Agreement states that Isaac understood that "the Court has jurisdiction and authority to impose any sentence within the statutory maximum described above." Plea Agreement ¶ 4.
III.
Isaac also argues that he received ineffective assistance of counsel because his counsel failed to invoke Fifth Amendment due process protections as a defense against the obstruction of justice enhancement. A two-prong test applies to ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668, 688 (1984). First, Isaac must show that his counsel's performance "fell below an objective standard of reasonableness," and second, he must show that "the deficient performance prejudiced the defense." Id. at 688. In other words, Isaac must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In regard to Isaac's sentencing enhancement, the record reflects that defense counsel argued vigorously against an obstruction of justice enhancement both in a written brief submitted to the Court and at the sentencing proceeding itself. See Transcript of Sentencing Hearing at 7-13; Defendant's Position with Respect to Sentencing Factors and Material Facts. While defense counsel did not argue the constitutional issues Isaac claims he should have raised, these issues, as discussed supra, would have been without merit had they been raised. Thus, failing to raise these clearly frivolous claims does not fall below an objective standard of reasonableness. See Model Rules of Professional Conduct R. 3.1 (prohibiting a lawyer from advancing an argument without a non-frivolous basis in "law and fact"). Moreover, Isaac cannot show how he was prejudiced by counsel's failure to raise issues that would not have changed the outcome of the sentencing. Thus, Isaac's claim that he was ineffectively assisted by counsel because of counsel's failure to raise constitutional issues related to his obstruction of justice enhancement is without merit.
See Beamon v. United States, 189 F.Supp.2d 350, 357-58 (E.D. Va. 2002) (finding defendant not prejudiced by counsel's failure to challenge well-settled law at sentencing); see also Duarte v. United States, 289 F.Supp.2d 487, 491-92 (S.D.N.Y. 2003) (finding defendant not prejudiced by counsel's failure to raise meritless Apprendi claim at sentencing).
IV.
Isaac also alleges that he received ineffective assistance of counsel because counsel failed to appeal Isaac's sentence after Isaac specifically requested that counsel do so. Isaac makes this allegation in a signed affidavit attached to his amended § 2255 motion. See Amended § 2255 Motion, Exhibit 4, Declaration of Benjamin Isaac. Under Strickland's two-prong test, a defense counsel's failure to file an appeal when a defendant specifically requests counsel to do so is "professionally unreasonable" and presumptively prejudicial, regardless of the perceived merits of such an appeal. In United States v. Peak, a panel of the Fourth Circuit reasoned that the right to counsel at trial applies even where "there is no reasonable probability that an attorney could win an acquittal" and that this right to counsel, regardless of the merits of the case, extends to the appeals process. 992 F.2d at 42. Here though, Isaac waived his right to appeal his conviction and "any sentence within the statutory maximum." Plea Agreement ¶ 4. However, the Fourth Circuit has also held that such a waiver does not relieve counsel of his duty to file an appeal when defendant specifically requests that an appeal be filed. Recent case law from other circuits supports this proposition as well. While permitting a defendant who waived his appeal rights with the opportunity to note an appeal may be seen as "troubling" and as providing the defendant with "nothing more than an opportunity to lose," these courts have found that waiver of one's appellate rights does not equate to a waiver of one's Sixth Amendment rights to effective assistance of counsel. See Campusano, 442 F.3d at 777. The right to effective assistance of counsel requires that an attorney, when specifically requested to do so by the defendant, file an appeal "even if doing so would be contrary to the plea agreement" or otherwise frivolous. See Sandoval, 409 F.3d at 1197.
See Roe v. Flores-Ortega, 528 U.S. 470, 477, 483-84 (2000); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993); see also U.S. v. Frazer, 430 F.3d 696, 705 (4th Cir. 2005) (defendant has the right to a direct appeal, even if appeal would be frivolous).
See, e.g., United States v. Kirby, 36 Fed. Appx. 76, 77, 2002 WL 1155859 (4th Cir. 2002) (stating that counsel had obligation to appeal sentence, even if defendant had waived appeal rights as part of plea agreement, if it could be established upon remand that defendant specifically requested counsel to file appeal); United States v. Strickland, 2000 WL 852568 (4th Cir. 2000) (same).
See Campusano v. United States, 442 F.3d 770, 773-77 (2d Cir. 2006) (holding that defendant who had pled guilty and waived appeal and collateral review rights was entitled to file a direct appeal if he was able to show upon remand that he specifically requested counsel to file an appeal); United States v. Sandoval, 409 F.3d 1193, 1195-99 (9th Cir. 2005) (holding counsel's failure to comply with defendant's specific instructions to file appeal was ineffective assistance of counsel despite waiver of appellate rights in plea agreement); United States v. Garrett, 402 F.3d 1262, 1267 (10th Cir. 2005) (remanding case for evidentiary hearing to determine if defendant who waived appeal rights had requested counsel to file notice of appeal).
See Sandoval, 409 F.3d at 1197.
See Campusano, 442 F.3d at 777.
Counsel's duty to note an appeal applies only when defendant specifically requests that an appeal be filed or when there is an otherwise reasonable probability that, but for counsel's failure to consult with defendant, defendant would have filed a timely appeal. See Flores-Ortega, 528 U.S. at 477, 484. Determination of whether counsel had a duty to note an appeal is a factual inquiry which requires a fully developed record. To this end, the government will be directed to file a reply to Isaac's uncontroverted allegation that he specifically requested his counsel to file an appeal.
See Flores-Ortega, 528 U.S. at 487 (remanding for further proceedings to develop factual record in order to determine whether counsel had duty to consult with defendant regarding appeal); Kirby, 36 Fed. Appx. at 77 (remanding for, inter alia, clarification of record as to whether defendant directed counsel to appeal); Campusano, 442 F.3d at 777 (remanding with direction to conduct an evidentiary hearing to determine whether defendant instructed counsel to appeal).
If it is determined that Isaac's counsel refused Isaac's request to file an appeal, Isaac is entitled to be re-sentenced so that he may file a timely appeal, even absent a showing that such an appeal would have any merit. See Rodriguez v. United States, 395 U.S. 327, 330 (1969); Peak, 992 F.2d at 42.
V.
Accordingly, for the foregoing reasons,
It is hereby ORDERED that Isaac's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds that enhancement of his sentence violated his constitutional rights and that his counsel ineffectively represented him by failing to raise constitutional challenges to the sentence enhancement is DENIED.
It is further ORDERED that resolution of Isaac's claim under § 2255 that his counsel failed to file an appeal as requested is DEFERRED pending resolution of the factual question of whether Isaac actually directed his counsel to appeal.
It is further ORDERED that the government is DIRECTED to file a pleading with supporting affidavits by 5:00 p.m., Thursday, July 27, 2006, in response to Isaac's allegation that his counsel failed to comply with Isaac's request to appeal. If that allegation is denied, an evidentiary hearing will be scheduled. If Isaac's counsel agrees that he was asked to file an appeal but did not do so, then a writ will issue to allow re-sentencing so that Isaac may file a timely appeal.
The Clerk is directed to send a copy of this Order to Isaac and all counsel of record.