Opinion
03 Cr. 0906 (RPP), 05 Civ. 9027 (RPP).
October 25, 2007
OPINION ORDER
On August 15, 2005, a Motion to Vacate, Set Aside or Correct a Sentence by a Person in Custody Pursuant to 28 U.S.C. § 2255 was filed pro se by Petitioner Windzer Fleurissaint. The motion asserted that (1) this Court erroneously applied mandatory sentence enhancements according to the United States Sentencing Commission Guidelines, which were ruled unconstitutional byUnited States v. Booker, 543 U.S. 228 (2005), and (2) upon resentencing, this Court should consider Petitioner's "extraordinary efforts at post conviction rehabilitation." (Motion at 3-4.) On November 1, 2005, the government served a letter in opposition to the motion, arguing, in part, that Petitioner was barred from challenging his sentence based onBooker because he failed to file a direct appeal raising that claim. (Gov't.'s Letter Brief dated 11/1/05.)
On April 11, 2006, the Court received Petitioner's Reply to the Government's Response To A Motion To Vacate, Set Aside the Conviction and Judgment, in accordance with 28 U.S.C. § 2255 ("Pet'r Reply"). Petitioner's Reply relied on Massaro v. United States, 538 U.S. 500 (2003) to contend that trial counsel for Petitioner, in failing to object to the sentencing enhancements and failing to file a direct appeal had provided ineffective assistance. (Pet'r Reply at 5.)
On January 12, 2007, the Court filed an Opinion and Order indicating that, in view of the unclear record in the sentencing minutes, it might review its sentence of 106 months of imprisonment in the light of United States. v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005), and ordered a hearing to determine if trial counsel's performance had been ineffective, causing prejudice to Petitioner under the two-prong test promulgated inStrickland v. Washington, 466 U.S. 668 (1984). (Opinion and Order dated January 12, 2007 ("1/12/07 Opinion") at 4).
Due to the need to transport Petitioner to New York, the hearing was not held until March 6, 2007. At the hearing, the Court heard testimony of trial counsel and his assistant, as well as from Petitioner, and appointed counsel to represent Petitioner in this proceeding. In the course of the hearing, it became evident that, if Petitioner could not be resentenced without appealing his conviction as the government contended, then Petitioner wanted to appeal his conviction based on the argument that trial counsel had rendered ineffective assistance by failing to perfect an appeal. Thereafter, the Court received letter briefs from both parties and ordered argument to be held on August 8, 2007.
On August 8, 2007, the Court pointed out that the notice of appeal had been filed on February 10, 2005, and that the government's time to file a cross appeal, based on this Court's granting a motion to acquit the Petitioner of the charge in Count 5 of the indictment pursuant to Rule 29 of the Federal Rules of Criminal Procedure, had expired before trial counsel had filed the notice of withdrawal of the appeal on March 16, 2005. The Court raised the issue of whether there had been ineffective assistance of counsel since, by March 16, 2005, the possibility of a cross appeal was no longer existent.
The testimony at the hearing on March 6, 2007 had established that the principal reason against filing an appeal was that a successful cross appeal by the government would mean the mandatory imposition of a consecutive term of imprisonment of 25 years.
After this Court granted the government's request for time to respond, on August 24, 2007, the government submitted a letter with supporting affidavits of trial counsel and his assistant to the effect that, upon receiving Petitioner's oral authorization to withdraw the appeal, counsel obtained the government's consent to that withdrawal, and, thereafter, filed it, albeit a few days after the government's time to file a cross appeal had run. The Court then ordered another hearing, and on October 2, 2007, again heard testimony from trial counsel, his assistant, as well as Petitioner, relating to whether Petitioner's right to appeal had been thwarted by ineffective assistance of counsel. This opinion follows.
Discussion
A. The Constitutionality of the Sentence
The Petitioner seeks to have the Court "vacate [Petitioner's] sentence of 46 months because he is actually innocent of the enhanced term of imprisonment, as he neither admitted to, nor was he found guilty of, the additional criminal conduct which formed the bases of the enhanced sentence; or, in the alternative, the Petitioner moves this Court to resentence him to a new term of imprisonment using the now advisory sentencing guidelines system." Mem. of Points and Authorities in Supp. of Petitioner's Mot. to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. § 2255 (Pet'r Mem.) at 2.
The Motion relies on Justice Thomas' dissent in Harris v. United States, 122 S. Ct. 2406, 2424 (2002) (every fact necessary to constitute a crime must be found beyond a reasonable doubt by a jury if that right is not waived), and the Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004) (holding that since the sentencing guidelines promulgated by the State of Washington were mandatory, each enhancement utilized by the court in sentencing was required to have been found beyond a reasonable doubt by a unanimous jury). The Motion fails to recognize, however, that subsequently inUnited States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court found that the federal guidelines promulgated by the United States Congress were not mandatory but only advisory. As a result of the Booker decision, the enhancements in the federal guidelines, being advisory, do not have to be found by a jury.
Booker was decided on January 12, 2005. The Court sentenced Petitioner on January 20, 2005. The Court was aware of the Booker decision. (Sentencing Tr. at 16-17.) Accordingly, the Motion's claim that Petitioner's constitutional rights were violated as set forth in Blakely v. Washington, supra, by enhancements utilized in the Court's sentence is not viable and is denied.
Similarly, the Petitioner's contention that his Constitutional rights were violated by his counsel's failure to object to the Court's sentencing enhancements as not permitted under Blakely lacks merit, since those enhancements were permissible under the federal guidelines as held in Booker.
B. Petitioner's Sentence under the Guidelines
Because Petitioner asks, in the alternative, that the Court resentence Petitioner using the advisory guidelines, the Court will review that sentence, and consider whether it may reduce the sentence due to Petitioner's post-conviction rehabilitation. Petitioner was sentenced to 46 months on Count 1 (conspiring to commit robbery), 46 months on Count 2 (attempted robbery), 46 months on Count 4 (conspiracy to distribute marijuana), all to run concurrently, and a five-year consecutive term of imprisonment for carrying a firearm during the crime charged in Count 2.
At the hearing on October 2, 2007, the Court advised the Petitioner that it would review the sentence by review of the Guidelines computation and the provisions of 18 U.S.C. § 3553(a).
1. Review of the Presentence Report Calculations
The Presentence Report ("PSR") found that since the convictions of conspiracy to commit robbery (Count 1) and attempted robbery (Count 2) are similar crimes, they should be grouped together and have a guideline level of 20 pursuant to U.S.S.G. 2B3.1. The PSR also found that an enhancement of one level should be added because the objective of the conspiracy and attempted robbery was possession of the victim's marijuana, U.S.S.G. 2B3.1(b)(6), increasing the guideline level of offense to 21.
With respect to Count 4, the conviction of conspiring to possess with intent to distribute at least 10, but less than 20, kilograms of the marijuana transported from Texas to New York, U.S.S.G 2 D1.1(c)(12) required an offense level of 16. The PSR then correctly utilized a multiple count adjustment, pursuant to U.S.S.G. 3D1.4, because of the two different groups of crimes committed, and added another offense level, for a total offense level of 22.
Because Petitioner was convicted in an adult court of robbery when he was sixteen, for a crime committed when he was fifteen, and because he committed the crimes for which he stands convicted while he was on probation for that robbery, the PSR correctly placed Petitioner in Criminal History Category II.
At Offense Level 22 and Criminal History Category II, the Petitioner was subject to a sentence of 46 to 57 months on Counts 1, 2 and 4, and a consecutive sentence of 60 months on Count 3. The PSR also required a 25-year consecutive sentence on Count 5 and recommended that, if the Petitioner's conviction on Count 5 was vacated, as it was on January 19, 2005, the Petitioner receive a sentence at the high end of the guideline range for Counts 1, 2 and 4, which was 46-57 months. The Probation Office correctly calculated the Petitioner's guideline sentence.
C. Post-Conviction Rehabilitation
The Court cannot consider post-conviction rehabilitation. It must impose a sentence based on the facts before it on January 20, 2005. Petitioner relies upon United States v. Core, 125 F.3d 74 (2d Cir. 1997), which allowed a court to consider postconviction rehabilitation; but that case has been overruled by United States v. Quesada-Mosquera, 243 F.3d 685 (2d Cir. 2001) ("no one may have post-sentencing rehabilitation considered upon resentencing.") Likewise, 18 U.S.C. § 3582(c) states that "the court may not modify a term of imprisonment once it has been imposed." The only exceptions allowed by § 3582(c) are inapplicable to Petitioner's case: subparagraph (1)(A) is only applicable "upon motion of the Director of the Bureau of Prisons;" subparagraph (1)(B) is only applicable if expressly permitted by statute or Rule 35 (the Court is unaware of any statute or anything in Rule 35 permitting it to consider post-conviction rehabilitation); and subparagraph (2) applies only if there has been a subsequent lowering of the guideline range under which the Petitioner was sentenced (the Court is unaware of any such lowering).
D. Review Pursuant to 18 U.S.C. § 3553(a)
Furthermore, the guidelines, to the extent they might be applicable, were amended in 2000 prior to Petitioner's sentence to state that "Post sentencing rehabilitation efforts . . . are not an appropriate basis for a downward departure when resentencing defendant. . . ." U.S. Sentencing Guideline Manual § 5K2.19 (2000); U.S. v. Quesada-Mosquera, supra.
Because the sentencing transcript does not demonstrate clearly that the Court took into account the factors in 18 U.S.C. § 3553(a), the Court will review the sentence in view of those factors.
The PSR reflects that in approximately April 2003 the Petitioner accompanied co-defendant, Kevin Moore, and another individual named Benz, to Houston, Texas. There Petitioner joined Moore, Mark Lee, and Kevin Miller in a series of armed robberies of marijuana dealers; that Lee, Moore, Miller, and Petitioner then agreed to, and did, go to New York to sell the marijuana proceeds from those robberies (Count 4). (PSR ¶ 15.)
In early May 2003, the four defendants brought two female companions and four disassembled firearms with them to New York. (PSR ¶ 16). As the Court recalls the evidence, they attempted armed robberies of three marijuana dealers in New York, the last of which was charged in Counts 1 and 2.
On May 27, 2003, Lee, Moore, Miller, Petitioner, Kevin Holt, and an individual named "Leon," all armed with pistols, attempted to rob a marijuana dealer named "Junior" of 1,000 pounds of marijuana stashed in an apartment in the vicinity of 151st Street and Seventh Avenue. (PSR ¶ 17.) They planned to stop Junior as he entered his parked vehicle in order to force him to give entrance to the apartment. (PSR ¶ 18.) They utilized two vehicles to attempt to box in Junior's car. Petitioner drove one vehicle and Moore drove the other. (PSR ¶ 18.) They failed to stop Junior's car, although Lee fired eight shots into it. (PSR ¶ 19.) Moore, Lee, and Miller were apprehended after a highspeed chase. (PSR ¶ 20.) Petitioner, Holt, and Leon escaped, but Petitioner was apprehended in Houston, Texas, in December 2003, and Holt was apprehended in June 2004. (PSR ¶¶ 21-22.) The testimony at trial established that during their stays in Texas and New York, the defendants were engaged in a crime spree during which they constantly smoked marijuana.
Petitioner was previously convicted as an adult in October 2002 in Kings County for a June 2000 robbery when he was fifteen. He received a sentence of five years probation, approximately six months prior to the above conduct in Houston and New York. (PSR ¶ 64.) In the June 2000 robbery, Petitioner and a co-defendant robbed four females in a hair salon, using a rifle or a toy rifle. Petitioner told one of the victims to get down on her knees and give him her chain. She gave the chain to Petitioner's co-defendant, who also seized another victim's chain. The robbers also took $33 in cash from the owner of the salon.
In light of this review of the history and circumstances of the offenses of which Petitioner stands convicted, and the history and character of the Petitioner at the time of sentence, a sentence at the high end of the guideline sentence for all four counts (115 months) was warranted. 18 U.S.C. § 3553(a)(1). Such a sentence was necessary to reflect the seriousness of the offenses committed, to promote respect for the law, and to provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A). Furthermore, such a sentence was necessary to provide an adequate deterrence to such criminal conduct by others 18 U.S.C. § 3553(a)(2)(B). As for the need for the sentence to protect the public from further crimes of the Petitioner, despite the prison records evidencing a continued disrespect for authority, the Court found that his sentence should be at the lower end of the guidelines because of defense counsel's presentation that, despite the above history of criminal activity and an unwillingness to abide by the terms of his probation and the terms of pretrial detention, Petitioner had committed these crimes at only 20 years of age, and had demonstrated a new attitude by diligently and intelligently assisting his defense counsel at trial.
Even after his arrest in this case, the Petitioner was involved in three disciplinary actions while at the MCC: on April 26, 2004, June 27, 2004, and September 22, 2004. (PSR ¶ 13.) A single disciplinary action is unusual in a PSR.
Accordingly, the Court determined that Petitioner's sentence should be reduced to 106 months to encourage the Petitioner to continue to improve his educational and vocational training, and to enter a drug treatment program, which in turn should reduce the likelihood of his committing further crimes. Indeed, the certificates of his achievements attached to the motion papers demonstrate that Petitioner has utilized the opportunity to take important steps down that road. The sentence rendered by the Court was sufficient, but not greater than necessary to comply with the purposes of § 3553(a)(2), and cannot be changed. See 18 U.S.C. § 3582(c).
E. The Ineffective Assistance Claim
Lastly, the Court does not find that Petitioner received ineffective assistance from his trial counsel. After two evidentiary hearings, it is clear that, in view of a possible successful cross appeal by the government reinstating a mandatory consecutive 25-year sentence, Petitioner decided not to request his counsel to file a notice of appeal. (Hr'g. Tr. 25, March 6, 2007, Hr'g Tr. 16-18, 23, 34, Oct. 2, 2007.) Under the circumstances of Petitioner having been relocated to a federal penitentiary in Beaumont, Texas without notifying counsel of his decision to forego an appeal, counsel filed a timely precautionary notice of appeal. (Hr'g. Tr. 4, March 6, 2007.)
On or about February 23, 2005, Petitioner made a telephone call from the prison in Beaumont, Texas. (Id. at 20-21.) Petitioner was focused on an amendment to his PSR because, as furnished to prison authorities, the PSR did not note that his conviction on Count 5 of the indictment has been vacated by the Court prior to sentence, and the prison authorities were planning to assign him to a maximum security prison. (Hr'g. Tr. 45-49, Oct. 2, 2007.) On the other hand, Petitioner's trial counsel was focused on obtaining authority to withdraw the notice of appeal Petitioner had not authorized because of the possibility of a cross appeal by the government, which could result in an increase of Petitioner's sentence by 25 years of imprisonment. (Hr'g. Tr. 16-18, March 6, 2007, Hr'g. Tr. 19-20, 31-32, Oct. 2, 2007.)
The Court docket reflects that on April 19, 2005, on receipt of the mandate from the Court of Appeals, this Court entered an order that Probation amend the PSR to reflect the Court's dismissal of Count 5.
Since Petitioner had decided, in his own mind, several weeks before the telephone call not to pursue an appeal, and because his reason for making the telephone call was to have his PSR amended, the Court concludes he does not recall authorizing the withdrawal of the appeal. Nevertheless, trial counsel and his assistant gave convincing testimony that, during the telephone conversation, Petitioner authorized the withdrawal of the appeal, and that they then proceeded to get the government to consent to the withdrawal, and filed the necessary document reflecting that consent with the Court of Appeals. In any event, since Petitioner, by his own admission, never intended to file a notice of appeal, his right to appeal was not violated.
The Court finds that Petitioner's claim of ineffective assistance of counsel at sentence and during appeal is not warranted, and that Petitioner was afforded effective counsel at sentencing and on appeal. Petitioner's motion pursuant to 28 U.S.C. § 2255 is denied.
IT IS SO ORDERED