Opinion
Civil No. 00-1641
May 10, 2001
ORDER
I. Introduction
Defendant, who pleaded guilty to armed bank robbery and was sentenced to a term of 223 months imprisonment, has filed a motion to set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on four grounds. Each of these grounds is discussed in turn below.
II. Discussion
A. Jurisdiction
First, defendant argues that this court did not have jurisdiction over him, apparently because the robbery did not take place on federal property. 18 U.S.C. § 3231 provides that "district courts of the United States shall have original jurisdiction . . . of all offenses against the laws of the United States." Defendant was indicted and pleaded guilty to violating a federal statute, 18 U.S.C. § 2113, which prohibits armed robbery of a federally insured bank. Thus, defendant was convicted of violating a federal law, and this court had jurisdiction over his case.
B. Ineffective Assistance
Defendant argues that his attorney, Robert A. Goffredi, rendered ineffective assistance of counsel by leading him to believe that he faced a sentence of 140 to 170 months, rather than the 188-235 month range he faced as a career offender. Defendant contends that he pleaded guilty believing he would be sentenced within the lower range and discovered only later that he could be sentenced within the greater range.
As an initial matter, defendant's claim is belied by the evidence. Defendant's plea petition expressly noted that defendant could be sentenced for a maximum prison term of 25 years. The plea petition also stated,
While both my attorney and the government will make recommendation, the sentence is up to the court and I cannot withdraw my plea if it is more than I expected. The court is not bound by any recommendation.
Defendant also acknowledged during open court that he could not withdraw his plea if he was sentenced to a greater or harsher sentence than he was led to believe he might receive, and he again acknowledged the maximum term was 25 years. (9/13/99 Hearing trans. at 7-8.) The government has also submitted an affidavit from defendant's counsel, Mr. Goffredi, averring that before defendant pleaded guilty, counsel told defendant he would likely be sentenced as a career offender within a range of 188 to 235 months. (Goffredi Aff. at ¶ 3-5.) The court finds that defendant was aware of the potential length of his sentence when he pleaded guilty.
Moreover, even if defendant had been told he would likely receive a lesser sentence, he would not be entitled to withdraw his plea. Claims of ineffective assistance of counsel require the defendant to show that his counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show rejudice in the context of a guilty plea, the defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Bad advice about the length of a sentence rarely supports a finding of ineffective assistance of counsel. "[I]t is well established that an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea." United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990). If "the record indicates that [a defendant's] guilty plea was knowing and voluntary and made with full understanding that the court was not bound by any sentencing agreement," the defendant is not entitled to withdraw his plea. Id. Doganier v. United States, 914 F.2d 165, 168 (9th Cir. 1990). Relief is available only if counsel's prediction of the sentence was "a gross mischaracterization of the likely outcome of his case[.]" Doganier, 914 F.2d at 168.
The same standard appears to apply regardless whether the motion is couched in terms of withdrawal of the guilty plea or ineffective assistance of counsel. See Doganier, 914 F.2d at 168 (ineffective assistance of counsel); Garcia, 909 F.2d at 1349 (motion to withdraw a guilty plea).
The court is aware of only one case in which the Ninth Circuit has held that an error in sentence prediction met this high standard. See Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986). In Iaea, the defendant's attorney told him that he would likely get only probation, when instead he was facing, and ultimately was sentenced to, life imprisonment. On the other hand, in cases involving erroneous sentence prediction of the same magnitude as defendant's, the Ninth Circuit has repeatedly held that the error did not rise to the level of a "gross mischacterization." See Doganiere, 914 F.2d at 168 (defendant sentenced to fifteen years instead of twelve years); Garcia, 909 F.2d at 1348 (defendant sentenced to 235 months instead of 116 months); United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990) (defendant sentenced to 144 months rather than 36 months); Shah v. United States, 878 F.2d 1156,1162 (9th Cir. 1989) (defendant sentenced to twelve years instead of an unspecified lesser term of incarceration).
In this case defendant received a sentence of 223 months rather than a sentence within the lesser range of 140 to 170 months. Even assuming defendant was told he would likely be sentenced within the lesser range, that mistake did not amount to a "gross mischaracterization" of defendant's sentence. Defendant's sentence was still considerably less than the maximum.
C. Career-Offender Status
Next, defendant argues that the prior convictions used to classify defendant as a career offender for sentencing purposes were invalid. A defendant cannot use § 2255 to collaterally attack a state conviction used to enhance a federal sentence. Curtis v. United States, 511 U.S. 485, 487
(1994); United States v. Daniels, 195 F.3d 501, 503 (9th Cir. 1999). The only exception to the Curtis rule is the rare circumstance where a conviction was obtained in violation of Gideon v. Wainwright, 372 U.S. 335 (1963). The presentence investigation report reveals that plaintiff was represented by counsel on each of the convictions used to classify him as a career offender. Thus, plaintiff may not attack his prior convictions in this § 2255 motion.
Similarly, defendant's argument that counsel was ineffective for failing to challenge the prior convictions during the sentencing hearing fails. A criminal defendant has no right to challenge prior convictions used to enhance a federal sentence. United States v. Price, 51 F.3d 175, 177 (9th Cir. 1995). Thus, defendant's third ground for relief fails.
D. Federally Insured Bank
Finally, defendant argues that his conviction is void because the government failed to prove the bank he robbed was federally insured. The indictment alleged that defendant robbed a financial institution insured by the Federal Deposit Corporation, and during the government's statement of the facts underlying defendant's guilty plea, the government specified that the bank was federally insured. (Trans. at 9-10.) Defendant also acknowledged to the court that the bank he robbed was federally insured:
The Court: All right. How do you plead to the charge of armed bank robbery, guilty or not guilty?
Defendant: Guilty
The Court: And, in your own words, tell me what it is you're admitting you did.
Defendant: I robbed-I robbed the bank on the 8th of October of last year.
The Court: Okay. And at that time you knew it was federally insured?
Defendant: Yes.
The Court: And at the time you robbed the bank, you were armed with a dangerous weapon?
Defendant : Yes, sir.
(Id. at 12.) Thus, defendant's claim that there was a failure of proof that the bank he robbed was federally insured is without merit.
III. Conclusion
For the reasons stated above, defendant's motion to set aside or correct his sentence, (doc. 85), is denied.
IT IS ORDERED.