Opinion
00 Civ. 2158 (LAK) (S1 96 Crim. 1099 (LAK)
May 9, 2000.
ORDER
Movant was charged in a 37-count superseding indictment filed March 6, 1997 conducting or participating in the conduct of the affairs of an enterprise through a pattern of racketeering activity (Count 1), fifteen offenses (Hobbs Act or conspiracy to violate the Hobbs Act) also charged as racketeering acts (Counts 3-7, 10-14, and 16-20), and fourteen firearms offenses under 18 U.S.C. § 924(c)(1) (Counts 21-25, 28-32, 34-37). On December 31, 1997, movant pleaded guilty to Count 1 (racketeering 3, 8 and 17, all charging Hobbs Act robberies). He did so pursuant to a plea agreement in which he stipulated to a guideline range of 188 to 235 months and stipulated also, to the extent relevant here, that the offense level for each of the racketeering acts would be increased by 5 levels because a firearm was brandished in the course of each offense. The plea agreement further provided "that the defendant will neither appeal, nor otherwise litigate, under title 28, United States Code, Section 2255, any sentence within or below the stipulated guidelines range" of 188 to 235 months. Judgment was entered on November 30, 1998 sentencing movant in relevant part to 200 months of imprisonment. The judgment was affirmed by the Court of Appeals by summary order filed December 15, 1999. United States v. Reyes, No. 98-1356(L), 99-1064.
Movant now moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. He contends that his guilty plea was neither voluntary nor informed in that he was unaware of the nature or elements of the charges under 18 U.S.C. § 924(c)(1), that he would not have pleaded guilty if he had understood that he could not have been convicted under that statute absent "active deployment" of the firearms, and that he was deprived of the effective assistance of counsel in that his attorney improperly failed to attack the sufficiency of the Section 924(c)(1) counts as they "applied to [movant's] role of only transporting or supplying weapons" and failed to submit a sentencing memorandum relevant to "Sentence Entrapment."
He claims also that his co-defendants all received less severe sentences, a contention that is flatly erroneous.
The government has submitted a thorough and careful memorandum demonstrating the frivolous nature of this motion. The Court differs with it in only one respect — its contention that Reyes' statements at the plea hearing that he was satisfied with his attorney and the representation he provided alone is sufficient to defeat an ineffective assistance claim. After all, defendants are not always in a position to judge the professional quality of the representation with which they are provided. Indeed, if Reyes' counsel, as claimed, had failed to inform Reyes or present credible challenges to the 18 U.S.C. § 924 charges, Reyes cannot be expected to have been aware of that fact at the time of the plea. All of the other points advanced by the government, however, are correct and more than sufficient to require denial of this application.
Movant's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 is denied in all respects. As no substantial question is presented, the Court declines to issue a certificate of appealability. The Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915. The Clerk will close the case.
SO ORDERED.
Dated: May 9, 2000
_____________________________________________ Lewis A. Kaplan, United States District Judge