Opinion
00-CV-0520E(Sc), 98-CR-64E
August 9, 2001
Thomas J. Eoannou, Esq., Cornell Mansion, for plaintiff.
Anthony M. Bruce, Esq., Asst. United States Attorney, for United States.
MEMORANDUM and ORDER
On May 15, 1998, petitioner waived indictment and pled guilty to counts TWENTY and TWENTY-ONE of a twenty-one count information, which alleged, respectively, conspiracy to engage in money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(ii) and (h) and evasion of payment of income taxes in violation of 21 U.S.C. § 7201. Counts ONE through NINETEEN were dismissed on the prosecutor's motion. The May 15, 1998 Plea Agreement, pursuant to which the plea was given and accepted, contains the following relevant provisions.
"It is the understanding of the [prosecution] and the defendant that, with a total offense level total [ sic] of 22 and criminal history category of III, the defendant's sentencing range would be a term imprisonment of 51 to 63 months, a fine of $7,500 to $75,000, and a period of supervised release of 2 to 3 years. Notwithstanding this, the defendant understands that, at sentencing, the defendant is subject to the maximum penalties set forth in paragraph 1 of this agreement.
"The defendant understands that the Probation Office will make an independent determination of the defendant's total offense level and criminal history category and that the Court will ultimately determine the appropriate total offense level and criminal history category. The defendant will not be entitled to withdraw the plea of guilty because of the Court's failure to adopt any Sentencing Guidelines calculations set forth in this agreement or because of an upward departure made by the Court, and in the event either the Court or the Probation Office independently determine [sic] the defendant's offense level and/or criminal history to be incorrectly calculated in this agreement, neither party shall be precluded from arguing in support of or against any adjustments proposed by either the Court or the Probation Office.
* * * * *
"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 or collaterally attack any sentence imposed by the Court which falls within or is less than the sentencing range set forth in Section II, paragraph 14 above, i.e., 51 to 63 months, notwithstanding the fact that the Court may reach that range by a Guidelines analysis different from that set forth in this agreement." Plea Agreement ¶¶ 14-15, 21.
On November 4, 1999 — in conformity with the May 15, 1999 Plea Agreement — the undersigned sentenced petitioner to total term of 51 months of imprisonment followed by three years of supervised release. Petitioner was ordered to pay a $100 special assessment and restitution in the amount of $221,345; no fine was imposed.
Petitioner filed a petition pursuant to 28 U.S.C. § 2255 June 16, 2000 seeking to vacate his sentence on the basis that "his federal sentence was erroneously increased and executed in violation of the Constitution of the United States, specifically the fifth and sixth amendments." Pet. at 2. Petitioner argues that, because the money he laundered was the proceeds of fraud as opposed to narcotics trafficking, his conduct fell outside of the "heartland" of money laundering cases, and therefore this Court should have utilized section 2F 1.1 of the U.S. Sentencing Guidelines Manual — "Offenses Involving Fraud or Deceit" — as opposed to section 2S1.1 of the U.S. Sentencing Guidelines Manual — "Money Laundering and Monetary Transaction Reporting" — in determining his base offense level. Id. at 3-8. Petitioner contends that this Court's use of section 2S1.1 instead of section 2F1.1 of the U.S. Sentencing Guidelines Manual to determine his base offense level violated his Fifth Amendment right to equal protection of the law and that his attorney's failure to argue for the use of section 2F1.1 to determine his base offense level violated his Sixth Amendment right to the effective assistance of counsel. Id. at 4-10. Petitioner states that, except for the above arguments, "his plea agreement is ratified." Id. at 5.
Indeed, this Court's July 21, 2000 Order — which ordered the prosecution to respond to the petition — contained a statement that "petitioner, James DiBlasi, Sr., acting pro se, seeks relief pursuant to 28 U.S.C. § 2255, alleging that his conviction in this Court was unconstitutionally or unlawfully obtained, as set forth more precisely in the petition" which caused petitioner to promptly respond by stating that the
"Petitioner asks that the Court correct its order of July 21, 2000 to the extent that on page one the court erroneously states that this Petitioner is `alleging that his conviction in this Court was unconstitutionally or unlawfully obtained.' The Petitioner asserts that in his two page brief submitted under Section 2255 nowhere does he challenge his conviction, but rather only the erroneous application of the guidelines and sentence which followed and also claims ineffective assistance of counsel and nothing more." August 2, 2000 Notice to the Court at 1-2 (emphasis in original).
The prosecution filed a motion to dismiss the petition August 3, 2000 on the basis that the plea agreement barred petitioner from collaterally attacking his sentence because such was less than 63 months and he could not avoid the waiver by attempting to "bootstrap" his petition by alleging ineffective assistance of counsel. Mot. to Dismiss at 3.
"[K]nowing and voluntary waivers of a defendant's right to appeal a sentence within an agreed Guidelines range are enforceable." United States v. Salcido-Contreras, 990 F.2d 51, (2d Cir. 1993). "In 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. Such a remedy would render the plea bargaining process and the resulting agreement meaningless." Id. at 53. 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." United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998). 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. Such is exactly what petitioner is attempting to do here. Petitioner, as an integral part of his Plea Agreement, agreed not to challenge any sentence of imprisonment falling within the range of 51-63 months and he was sentenced to Six months' imprisonment by the undersigned; accordingly he is barred from challenging such sentence and cannot circumvent such bar by alleging that he received ineffective assistance of counsel at the time of sentencing.
The facts of this petition are almost identical to those of Djelevic wherein the Court noted that petitioner
"does not contend that his waiver of his right to appeal was not knowing and voluntary. Nor does [he] suggest that he received ineffective assistance of counsel in entering the plea agreement, an argument which, we have suggested, might cast doubt on the validity of his waiver. Instead, * * * [petitioner] claims that his waiver should not bar consideration of his appeal because counsel was ineffective not at the time of the plea, but at sentencing. We empathetically reject this contention." Djelevic, at 107 (internal citations omitted).
Accordingly, it is hereby ORDERED that the prosecution's motion to dismiss is granted, that petitioner's petition is dismissed, that no certificate of appealability shall issue because petitioner has not made a substantial showing of the deprivation of a constitutional right and that this case shall be closed.