Opinion
02 Cr. 729 (DLC)
May 20, 2004
Edward C. O'Callaghan, Southern District of New York, for the Government
Michael Hurwitz Hurwitz Stampur Roth, New York, for the Defendant
OPINION AND ORDER
On March 10, 2004, defendant Anthony Guidice ("Guidice") made this motion to withdraw his guilty plea on the ground that his counsel was ineffective in failing to advise him that his sentencing guidelines range substantially exceeds the range to which he stipulated in his plea agreement with the Government (the "Plea Agreement"). The disparity between the guidelines range to which Guidice stipulated and his actual guidelines range was discovered upon receipt of the Probation Department's Pre-Sentence Report ("PSR"), which concludes that he qualifies as a career offender under the Sentencing Guidelines. This is Guidice's second motion to withdraw his guilty plea. The first, brought on the ground that the Government breached the Plea Agreement, was denied by this Court in a November 25, 2003 Opinion, 2003 WL 22779263 (S.D.N.Y. Nov. 25, 2003) (DLC), familiarity with which is presumed. For the reasons set forth below, this motion is also denied.
Background
The parties and Guidice's prior defense counsel ("Prior Counsel") have stipulated to the following facts concerning the events surrounding his plea of guilty to one count of conspiracy to commit extortion, in violation of Title 18, United States Code, Section 1951. On or about January 3, 2003, the Government provided Prior Counsel with a draft plea agreement (the "Draft Plea Agreement") calculating Guidice's offense level to be 16 and his criminal history to be Level V, resulting in a stipulated sentencing guidelines range of 41 to 51 months' imprisonment. The Draft Plea Agreement's criminal history calculation included Guidice's 1992 state conviction for assault in the second degree, his 1997 federal bank robbery conviction, and his conviction for conspiracy to commit extortion in the present case. The Draft Plea Agreement did not, however, address whether Guidice qualified as a career offender under Section 4B1.1 of the Sentencing Guidelines ("Section 4B1.1"). U.S.S.G. § 4B1.1.
On January 7, 2003, during a meeting at the Metropolitan Corrections Center ("MCC"), Guidice and his Prior Counsel reviewed the Draft Plea Agreement, specifically, Guidice's criminal history category, the statutory and Sentencing Guidelines provisions, and the fact that the stipulated guidelines range was not binding on the Court or the Probation Department. Prior Counsel did not, however, specifically advise Guidice of the risk that when preparing the PSR the Probation Department might conclude that Guidice was correctly placed in a higher criminal history category. Prior counsel did discuss with Guidice the fact that he could not withdraw his plea should his sentence be higher than the guidelines range contained in the Draft Plea Agreement, that his sentence would be determined solely by the Court, and that Guidice could appeal should his ultimate sentence exceed the guidelines range to which he stipulated.
The Plea Agreement was signed by Guidice and his Prior Counsel on January 14, 2003. It is identical to the Draft Plea Agreement that Prior Counsel discussed with Guidice on January 7, except that the Plea Agreement calculated Guidice's offense level to be 15, based on a determination that Guidice was between a minor and minimal participant in the offense. The sentencing guidelines range to which Guidice stipulated in the Plea Agreement, 37 to 46 months' imprisonment, was therefore lower than the range in the Draft Plea Agreement. Guidice's criminal history classification, however, remained unchanged. The Plea Agreement specifies that "it is understood that the defendant will have no right to withdraw his plea of guilty should the sentence imposed by the Court be outside the Stipulated Guidelines Sentencing Range of 37 to 46 months."
The parties agree that the date listed on the Plea Agreement, January 13, 2003, is inaccurate.
The Court reviewed the Plea Agreement with Guidice when he entered his guilty plea on January 16, 2003. The Court advised him that the maximum sentence for the crime to which he pleaded guilty is twenty years' imprisonment. Guidice again acknowledged that he understood that the Court is not bound by the calculation of the guidelines range contained in the Plea Agreement and that he could not withdraw his plea should his actual sentence differ from that calculation. Specifically, the Court questioned Guidice as follows:
THE COURT: Even if your sentence is different from what your attorney or anyone else has told you it might be, even if it is different from what is calculated in a written agreement you would have with the government, you are still going to be bound by your plea of guilty, and cannot withdraw your plea of guilty. Do you understand that?
GUIDICE: Yes, I do.
THE COURT: Do you understand that if your attorney or anyone else has attempted to predict to you what your sentence may be, that their prediction could be wrong? Do you understand that?
GUIDICE: Yes, I do.
THE COURT: No one, not your lawyer, not the government's lawyer, no one, can give you any assurance of what your sentence will be, because I am going to decide your sentence, but I am not going to do it now. I am going to wait, wait till I get a presentence report prepared by the probation department, do my own calculation of what your guidelines range is, decide whether I should depart up or down. And only than [sic] will I decide your sentence. Do you understand that?
GUIDICE: Yes, I do.
Guidice thus expressed his understanding that the Court would review the PSR and would conduct its own calculation of Guidice's guidelines range before determining his sentence:
On or about May 26, 2003, the parties received a draft of the PSR ("Draft PSR"), which concluded that Guidice's 1992 assault conviction, in combination with his 1997 federal bank robbery conviction and his conviction for conspiracy to commit extortion in the present case, qualifies Guidice as a career offender under the Sentencing Guidelines. U.S.S.G. § 4B1.1. Section 4B1.1 provides that
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is . . . a crime of violence . . . and (3) the defendant has at least two prior felony convictions of . . . a crime of violence.
U.S.S.G. § 4B1.1(a). A "crime of violence" is defined as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force against the person of another. . . ." U.S.S.G. § 4B1.2 (a). Based on Guidice's status as a career offender, the Draft PSR determined that his guidelines sentencing range is between 151 to 188 months' imprisonment.
Neither the Government nor Prior Counsel had discussed the possibility that Guidice's 1992 assault conviction could qualify him as a career offender under the Sentencing Guidelines. Under the New York Penal Law, in relevant part, a person is guilty of assault in the second degree when
(1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or . . . (4) He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or . . . (6) In the course of and in furtherance of the commission or attempted commission of a felony . . . or of immediate flight therefrom, he, or another participant if there by any, causes physical injury to a person other than one of the participants . . .
N.Y. Penal Law § 120.05. After receiving the Draft PSR, both parties independently researched whether Guidice's 1992 assault conviction qualified as a crime of violence. While a conviction for second degree assault generally constitutes a crime of violence under the Guidelines, U.S.S.G. § 4B1.2, the parties determined that case law in this District supports the conclusion that a conviction under subsection six, N.Y. Penal Law § 120.05(6), would not be classified as a crime of violence.
In calculating Guidice's criminal history category, both the Government and Prior Counsel had relied, on a copy of his rapsheet, which included his 1992 state conviction for assault in the second degree but did not specify the subsection of the New York Penal Law under which Guidice was convicted. N.Y. Penal Law § 120.05. After receiving the Draft PSR, the Government obtained the relevant state court records, and both parties then concluded that Guidice had been convicted under Section 120.05(1), N.Y. Penal Law, that his 1992 conviction for assault constitutes a crime of violence, and that Guidice is therefore a career offender under Section 4B1.1.
The Government offered Guidice a revised plea agreement ("Revised Plea Agreement"), under which the parties would agree that the correct sentencing guidelines range is between 151 and 188 months, Guidice would reserve the right to make a motion for downward departure on the ground that his criminal history category of Level VI overstates the seriousness of his criminal history, and the Government would reserve the right to oppose that motion. On July 24, 2003, Guidice informed the Court and the Government that he had rejected the Revised Plea Agreement and instead sought to file a motion to withdraw his guilty plea.
On August 22, 2003, this Court denied Guidice's request for the appointment of new counsel. On September 26, 2003, Guidice, through Prior Counsel, moved to withdraw his plea pursuant to Rule 32(e), Fed.R.Crim.P., on the ground that the Government breached the Plea Agreement. The Court denied this motion on November 25, 2003. United States v. Guidice, 2003 WL 22779263 (S.D.N.Y. Nov. 25, 2003) (DLC). On December 19, Prior Counsel submitted a motion for a downward departure based on Guidice's poor health and advanced age, on his criminal history category's over-representation of the likelihood of recidivism, and on the totality of the circumstances.
This Court again denied Guidice's request for the appointment of new counsel on January 5, 2004. On January 7, 2004, Guidice wrote a letter to the Court including the following:
Could no one really have known, when I agreed to the plea deal, what the effects of my past record would be? Does it matter? . . . You said during my plea that in the end sentencing would be at your discretion. But I feel like I've been also set up by other people involved in this. I recognize that I'm no angel, but twelve or more years is a death sentence for me.
The Court appointed new counsel ("Counsel") for Guidice on January 12, 2004. On March 10, Counsel supplemented Prior Counsel's motion for a downward departure, and, on the same date, Guidice moved to withdraw his guilty plea based on the ineffective assistance of counsel.
Discussion
To be valid, a guilty plea must represent a "voluntary and intelligent choice among the alternative courses of action open to the defendant."Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970));see also Hill v. Lockhart, 474 U.S. 52, 56 (1985). "Ineffective assistance of counsel may render a guilty plea involuntary, and hence invalid." United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (citation omitted).
A defendant's claim that his guilty plea is involuntary or unknowing as a result of the ineffective assistance of counsel is evaluated according to the two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Hill, 474 U.S. at 57 (applying the Strickland standard to guilty pleas); see also Couto, 311 F.3d at 187. First, a defendant must establish that his "counsel's representation fell below an objective standard of reasonableness." Hill, 474 U.S. at 56 (citation omitted); United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (per curiam). A defendant who enters a plea on the advice of counsel must therefore demonstrate that counsel's advice was outside "the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 57. Second, the defendant must show prejudice, that is, "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." Id. at 59; see also Hernandez, 242 F.3d at 112.
Rule 11, Fed.R.Crim.P., which sets forth the requirements for a plea allocution, "is designed to ensure that a defendant's plea of guilty is a voluntary and intelligent choice among the alternative courses of action open to the defendant." United States v. Harrison, 241 F.3d 289, 292 (2d Cir. 2001) (citation omitted). Rule 11(b), Fed.R.Crim.P., requires that a court inform the defendant of any maximum possible penalty and any mandatory minimum penalty provided by law. There is no requirement that a defendant be advised of "how the guidelines will actually apply to a defendant's case at the time of sentencing." United States v. Perdomo, 927 F.2d 111, 116 (2d Cir. 1991).
The Second Circuit has rejected the attempt to equate counsel's mistaken estimate of a defendant's sentencing guidelines range with inaccurate advice concerning the minimum and maximum sentences allowable under a statute. United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989). Because the prediction of a guidelines range is necessarily an estimate of a determination left to the Court's discretion, a mistaken calculation is generally not akin to "erroneous legal advice about the ultimately knowable." Id. (distinguishing Hill v. Ternullo, 510 F.2d 844, 847 (2d Cir. 1975)). Determining a sentence under the Sentencing Guidelines "is not a purely mechanical task," and defense counsel may make errors in applying the guidelines, particularly when a defendant has an extensive criminal history to interpret within the guidelines framework. Id. at 71. Allowing the withdrawal of guilty pleas based upon such errors undermines society's interest in the finality of guilty pleas and the integrity of the sentencing process. Id. at 70.
Nonetheless, it is beyond dispute that the Sentencing Guidelines must and do play a significant role in defendants' decisions. For this reason, this Circuit has encouraged the Government to utilize its own "unique expertise in muddling through the complexities of the Guidelines" to "inform defendants, prior to accepting plea agreements, as to the likely range of sentences that their pleas will authorize under the Guidelines." United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991); see also United States v. Mercedes, 287 F.3d 47, 51 (2d Cir. 2002). This information is intended to help "ensure that guilty pleas indeed represent intelligent choices by defendants." Pimentel, 932 F.2d at 1034. Given the importance of the sentencing guidelines in the determination of most defendants' sentences, it is incumbent upon defense counsel to discuss the sentencing guidelines regime with their clients.
In evaluating whether a defendant can satisfy the second prong of theStrickland test that but for counsel's errors, he would have insisted on going to trial courts focus on whether the defendant was aware of the "actual sentencing possibilities." Ventura, 957 F.2d at 1058; Hunter v. FOgg, 616 F.2d 55, 58 (2d Cir. 1980). A court's conveyance at a plea allocution of the actual sentencing possibilities that result from a defendant's guilty plea may correct any misrepresentation by counsel as to a defendant's probable sentence. Ventura, 957 F.2d at 1058. It is difficult for a defendant who was made aware of the actual sentencing possibilities of a plea to demonstrate that he suffered prejudice as a result of counsel's error.Id.
Prior Counsel represented Guidice zealously while he served, as counsel, for instance, negotiating the Plea Agreement with the Government, including the reduction of Guidice's offense level from 16 to 15; properly advising the defendant that the guidelines range in the Plea Agreement was not binding on the Court and that he could not withdraw his plea should his actual sentence be higher; negotiating a revised plea agreement that permitted the defendant to move for a downward departure from the guidelines range of 151 to 188 months' imprisonment; bringing the September 26, 2003, motion to withdraw the guilty plea at Guidice's request; and submitting a motion to this Court for a downward departure. At the same time, Prior Counsel failed to consider that Guidice's criminal history clearly placed him in a category resulting in a sentencing guidelines range over four times that to which he stipulated in the Plea Agreement.
Predicting a defendant's sentencing guidelines range can be a complicated task, especially when the defendant has an extensive criminal history, and the Second Circuit has made clear that an inaccurate prediction of a defendant's guidelines sentencing range does not ordinarily constitute grounds for the withdrawal of a plea. Sweeney, 878 F.2d at 71. In this case, the calculation of the defendant's actual guidelines range was sufficiently complex that neither the Assistant United States Attorney handling the case nor Prior Counsel, both of whom are experienced and able, realized that Guidice's 1992 state conviction for assault qualified him as a career offender under the Sentencing Guidelines. The guidelines range to which the defendant stipulated, moreover, is no more than an estimate of how the Court will exercise its discretion at the time of sentencing.
Guidice notes correctly, however, that the error made by Prior Counsel and by the Government, was as to a fact the defendant's conviction of two prior crimes of violence that should have been apparent to counsel and was objectively knowable at the time Guidice executed the Plea Agreement. It is not clear that a mistake of this nature about a guideline provision of such consequence falls within the range of competence demanded of criminal attorneys.
The Government's contention that Guidice's status as a career offender was unknown at the time the Plea Agreement was executed is unpersuasive. Although the rapsheet failed to specify the subsection under which Guidice was convicted, the likelihood that a conviction for second degree assault satisfied the definition of a crime of violence should have alerted Prior Counsel to obtain the relevant records, which were then available, or to question his client about the nature of the conviction.
It is unnecessary in this instance to decide whether the defendant has satisfied the first prong of the Strickland test since he has failed to meet the second prong by showing a reasonable probability that but for counsel's error he would not have pleaded guilty and would have insisted on going to trial. Guidice was advised by both Prior Counsel and the Court that his. sentence could exceed the guidelines range specified in the Plea Agreement. He specifically acknowledged at the plea allocution that he understood that he would still be bound by the Plea Agreement in the event that his actual sentence exceeded the stipulated range, that his attorney's estimate could be incorrect, and that the Court would review the PSR and undertake its own guidelines calculation before determining his sentence. The record indicates that Guidice was aware of these actual sentencing possibilities before he chose to enter his plea.
Guidice has not introduced any evidence upon which a finding of prejudice could be based. He has not submitted any affidavit representing that he would have chosen to proceed to trial if he had been informed by Prior Counsel that the Draft Plea Agreement likely contained an error in the calculation of his criminal history record. He has not identified any weaknesses in the Government's case that would have influenced his decision to proceed to trial. He wrote in his January 7 letter that "You said during my plea that in the end sentencing would be at your discretion. . . . I recognize that I'm no angel, but twelve or more years is a death sentence for me." This statement alone does not provide a basis for the Court to conclude that there is a reasonable probability that Guidice would have chosen to go to trial rather than execute the Plea Agreement at the time he was afforded that choice.
A conviction following trial would have resulted in the application of not only the career offender adjustments, but also a loss of the acceptance of responsibility adjustment.
Guidice's reliance on Mask v. McGinnis, 233 F.3d 132 (2d Cir. 2000) and United States v. Gordon, 156 F.3d 376 (2d Cir. 1998), in support of his satisfaction of the prejudice prong of Strickland is misplaced. In both of these cases the defendant proceeded to trial after having been misled regarding the sentencing options. In Mask, the defendant was informed that he could not legally be offered a plea of less than ten years to life and chose to proceed to trial, after which he was sentenced to twenty to forty years' imprisonment. Mask, 233 F.3d at 135. After Mask was convicted, it was discovered that he was not subject to the mandatory persistent violent felony provision that his counsel had believed prevented the prosecutor from offering a plea of less than ten years to life. Id. at 136. The court concluded that the disparity between Mask's actual sentence and the sentence available if counsel had effectively negotiated a plea agreement, combined with an affidavit from Mask stating that he would have accepted a reasonable plea agreement of eight to sixteen years, satisfied the defendant's burden to show prejudice. Id. at 141. It is far more reasonable to assume that a defendant would accept an appropriate plea agreement rather than risk a lengthy sentence at trial than it is to assume a defendant would turn down a less favorable plea agreement to face even greater sentencing exposure at trial. In addition, Mask submitted an affidavit to the court stating that he would have accepted a plea agreement but for counsel's error. Id.
In Gordon, the court found that the defendant chose to proceed to trial rather than accept a guilty plea based on his counsel's misrepresentation concerning Gordon's maximum sentencing exposure at trial. Gordon, 156 F.3d at 380. Gordon turned down a plea offer of 92 to 115 months' imprisonment in reliance on counsel's advice that his maximum sentence at trial would be 120 months' imprisonment, rather than the 210 to 262 months range in which he was ultimately sentenced. Id. at 378.
Conclusion
Guidice's motion to withdraw his guilty plea based on the ineffective assistance of counsel is denied. This matter will be set down for sentencing, at which time the Court will consider the defendant's motion for a downward departure.SO ORDERED