Opinion
Case Nos. 04-3215-JWL, 02-20062-01-JWL.
November 19, 2004
MEMORANDUM AND ORDER
Defendant Floyd McMillon pleaded guilty to one count of aiding or assisting the preparation of false tax returns and one count of willfully failing to pay over tax to the IRS. He was sentenced to sixty-three months imprisonment and ordered to pay $621,210.76 in restitution. This matter comes before the court on Mr. McMillon's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 32). After thoroughly reviewing Mr. McMillon's pleadings and the record, the court will summarily deny the motion in its entirety because in Mr. McMillon's plea agreement he waived the right to collaterally attack any matter in connection with his sentence, including all of the arguments that he now asserts.
Mr. McMillon's motion for leave to proceed in forma pauperis (doc. 33) is denied because there is no filing fee for a § 2255 motion. Mr. McMillon's motion for appointment of counsel (doc. 38) is likewise denied. The Sixth Amendment right to counsel does not apply to collateral attacks on a conviction such as a § 2255 motion, see generally Pennsylvania v. Finley, 481 U.S. 551 (1987), and the district court has discretion to appoint counsel when "the interests of justice so require," 18 U.S.C. § 3006A(a)(2)(B). In this case, the issues are not particularly complex, either legally or factually, and the content of Mr. McMillon's pro se pleadings demonstrates that he is perfectly capable of adequately articulating his claims.
BACKGROUND
On July 1, 2002, a grand jury returned an indictment charging Mr. McMillon with five counts of aiding or assisting the preparation of false tax returns in violation of 26 U.S.C. § 7206(2), ten counts of willfully failing to pay over tax to the IRS in violation of 26 U.S.C. § 7202, and one count of wire fraud in violation of 18 U.S.C. §§ 1343 and 2. These charges arose from Mr. McMillon's operation of Acculine Consulting Group, Inc., a business which performed bookkeeping, payroll, and tax return preparation services for various small business clients. Acculine's business clients would submit to Acculine a list of their employees' hours along with those employees' hourly wage rates. Acculine would then calculate the employment taxes, prepare and submit the employment tax forms to the IRS on behalf of those business clients, withdraw the necessary funds for the employment taxes from the clients' bank accounts, and forward the employment taxes to the IRS on behalf of the clients. At times, Acculine withdrew funds from some of its clients' bank accounts ostensibly for the purpose of paying employment taxes, but then used those funds for other purposes. Thus, Acculine never forwarded to the IRS some of the employment taxes that those businesses owed.
On February 10, 2003, Mr. McMillon entered his plea of guilty to one count of aiding or assisting the preparation of false tax returns and one count of willfully failing to pay over tax to the IRS. By way of the plea agreement, he agreed that related criminal activity would be considered as relevant conduct for purposes of calculating the base offense level under the sentencing guidelines and he agreed to pay restitution to forty-three business clients for taxes that he had withdrawn from their bank accounts but failed to forward to the IRS, but he reserved the right to contest the amounts of restitution at sentencing. Under the terms of the plea agreement he waived the right to appeal or collaterally attack any matter in connection with the prosecution and sentence.
Sentencing was based on the 1998 United States Sentencing Guidelines and the May 2000 Supplement thereto (U.S.S.G.). The presentence investigation report calculated the total tax loss to be $729,193.80 for a base offense level of 18 pursuant to U.S.S.G. § 2T1.4(M). This amount consisted partly of a percentage of Mr. McMillon's unreported gross income ($107,983.04) and partly of tax deposits received from business clients that Mr. McMillon failed to forward to the IRS ($621,210.76). The report further recommended a two-level enhancement pursuant to U.S.S.G. § 2T1.4(b)(1) because Mr. McMillon was the owner and operator of Acculine and was in the business of preparing and assisting in the preparation of tax returns, and another two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1 because he failed to appear for a court hearing on November 4, 2002, and was subsequently apprehended in South Padre Island, Texas, for driving under the influence. The report recommended that Mr. McMillon not receive a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 note 4 because of the obstruction-of-justice adjustment. This resulted in an offense level of 22.
Defense counsel's only objection to the presentence investigation report was that Mr. McMillon should receive a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 note 4 despite the fact that he received an enhancement for obstruction of justice based on his failure to appear because this was an extraordinary case. The court overruled this objection, explaining that this case was not extraordinary: the facts revealed that Mr. McMillon had not demonstrated acceptance of responsibility. The court adopted the recommendations in the presentence investigation report and sentenced Mr. McMillon to sixty-three months imprisonment and ordered him to pay $621,210.76 in restitution. Mr. McMillon did not appeal from the resulting judgment.
He has now filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. By way of this motion, Mr. McMillon raises essentially three arguments. First, he argues that the mathematical calculations regarding restitution were erroneously high and consequently the base offense level was incorrect. His theory in this regard is that the restitution amount was miscalculated because the victim impact calculations included withholdings for items such as state and local taxes, court-ordered garnishments, health insurance premiums, retirement funds, etc., whereas the restitution amounts should have been based solely on unpaid federal payroll taxes. Mr. McMillon also argues that he was not the only responsible person for the fraud scheme because he sold Acculine while the alleged scheme was ongoing. Lastly, Mr. McMillon argues that his counsel provided ineffective assistance by failing to argue in favor of a three-point reduction for acceptance of responsibility and by failing to challenge the calculations in the presentence investigation report.
In response, the government urges the court to enforce the provision of the plea agreement in which Mr. McMillon waived his right to collaterally attack any matter in connection with his prosecution and sentence.
LEGAL STANDARD FOR A § 2255 MOTION
Title 28 U.S.C. § 2255 entitles a prisoner to relief "[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." § 2255. A § 2255 motion is not a substitute for appeal and therefore relief is not available merely because of error that may have justified reversal on direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184 (1979). Rather, relief under § 2255 is warranted only for jurisdictional or constitutional claims or errors that reveal "a fundamental defect which inherently results in a complete miscarriage of justice." Addonizio, 442 U.S. at 185 (internal quotation omitted); accord Davis v. United States, 417 U.S. 333, 346 (1974) (same). The court must hold an evidentiary hearing on a § 2255 motion "`[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995) (quoting § 2255).
DISCUSSION
In this case, the motion and files and records of the case conclusively show that Mr. McMillon is entitled to no relief because the waiver in his plea agreement is enforceable as to all of the arguments that he now raises. The court will hold a defendant and the government to the terms of a lawful plea agreement. United States v. Arevalo-Jimenez, 372 F.3d 1204, 1207 (10th Cir. 2004); United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998). Thus, a knowing and voluntary waiver of § 2255 rights in a plea agreement is generally enforceable. United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001). The Tenth Circuit has adopted a three-pronged analysis for evaluating the enforceability of such a waiver in which the court must determine: (1) whether the disputed issue falls within the scope of the waiver; (2) whether the defendant knowingly and voluntarily waived his rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam).1. Scope of the Waiver
In determining whether the disputed issue falls within the scope of the waiver, the court begins with the plain language of the plea agreement. United States v. Anderson, 374 F.3d 955, 957 (10th Cir. 2004); Hahn, 359 F.3d at 1328. The plea agreement is construed "according to contract principles and what the defendant reasonably understood when he entered his plea." Arevalo-Jimenez, 372 F.3d at 1206 (internal quotation and citations omitted). The court strictly construes the waiver and resolves any ambiguities against the government and in favor of the defendant. Hahn, 359 F.3d at 1343.
The provision in the plea agreement by which Mr. McMillon waived his right to collaterally attack any matter in connection with his prosecution and sentence states as follows:
9. Waiver of Appeal and Collateral Attack. Defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution and sentence. The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court. The defendant also waives any right to challenge a sentence or manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255. In other words, the defendant waives the right to appeal the sentence imposed in this case except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court. However, if the United States exercises its right to appeal the sentence imposed as authorized by Title 18, United States Code, Section 3742(b), the defendant is released from this waiver and may appeal his sentence as authorized by Title 18, United States Code, Section 3742(a).
(Emphasis added.) The scope of this waiver unambiguously includes the right to collaterally attack by way of a § 2255 motion any matter in connection with his prosecution and sentence. This includes all of all of the arguments that Mr. McMillon now raises in his § 2255 motion, which all pertain to sentencing. Specifically, it includes his arguments that the mathematical calculations resulted in an erroneous restitution amount and an erroneous base offense level. It also includes his argument concerning the two-level enhancement pursuant to U.S.S.G. § 2T1.4(b)(1) based on the fact that he was the owner and operator of Acculine who was in the business of preparing and assisting in the preparation of tax returns (i.e., the "responsible person" issue, as Mr. McMillon argues).
In addition, the scope of the waiver includes ineffective assistance of counsel claims except insofar as any such claim might challenge the validity of the plea or waiver. Cockerham, 237 F.3d at 1190-91. In this case, Mr. McMillon's ineffective assistance of counsel arguments do not challenge the validity of the plea or waiver, but rather focus solely on allegations of ineffective assistance of counsel with respect to sentencing issues. Consequently, the scope of the plea agreement waived his ineffective assistance of counsel arguments with respect to his attorney's alleged failure to seek an acceptance-of-responsibility adjustment and failure to challenge the restitution and total tax loss computation amounts. The court acknowledges that it could be argued that because Mr. McMillon reserved his right to contest the restitution calculations at sentencing, he likewise reserved his right to contest this issue via an ineffective assistance of counsel claim — in other words, he reserved his right to challenge the fact that he received ineffective assistance of counsel with respect to calculating restitution. Although the court has considered this argument, Tenth Circuit precedent indicates that this argument is without merit. The Tenth Circuit has held that a waiver of § 2255 rights also waives ineffective assistance of counsel claims except insofar as any such claim might challenge the validity of the plea or waiver. Cockerham, 237 F.3d at 1190-91. Further, a plea agreement must specifically mention any argument that is to be preserved for appeal or collateral attack. Anderson, 374 F.3d at 958; see also Cockerham, 237 F.3d at 1186 n. 3 (observing that parties may avoid thorny issues concerning the extent of a waiver of rights in a plea agreement by explicitly reserving the right to raise ineffective assistance of counsel claims). Therefore, because as a general rule a plea agreement waiver of § 2255 rights waives ineffective assistance of counsel challenges of the type raised by Mr. McMillon here and because Mr. McMillon's plea agreement does not specifically preserve any ineffective assistance of counsel challenges, Mr. McMillon waived all such ineffective assistance of counsel challenges by failing to preserve them.
The court also notes that this aspect of Mr. McMillon's ineffective assistance of counsel claim is patently without merit. Counsel did object to the fact that the presentence investigation report did not recommend a reduction for acceptance of responsibility. Counsel argued at the sentencing hearing that Mr. McMillon was entitled to an acceptance of responsibility reduction on the basis of extraordinary circumstances notwithstanding the obstruction-of-justice adjustment. The court overruled this objection because the facts of the case did not demonstrate that Mr. McMillon had demonstrated acceptance of responsibility. The fact that the court was unwilling to give Mr. McMillon a two-point reduction for acceptance of responsibility reflects that the court would have been at least equally unwilling to give him the three-point reduction that he now complains his attorney failed to seek. In short, the fact that Mr. McMillon did not receive any reduction for acceptance of responsibility is attributable to the court, not to his attorney.
Mr. McMillon has not expressly articulated this argument, but given his pro se status the court will liberally construe his pleadings to imply such an argument because the court realizes that it would be confronted with a different situation if Mr. McMillon could repackage his restitution claim into a constitutional ineffective assistance of counsel claim (i.e., from a "straight" claim into a claim that he received ineffective assistance of counsel by virtue of his attorney's failure to challenge these calculations). See Cofske v. United States, 290 F.3d 437, 441 (1st Cir. 2002) (explaining that a sentencing guideline violation alone is generally not a basis for relief under § 2255 but that if the same claim is repackaged as an ineffective assistance of counsel claim it becomes a constitutional claim that is cognizable under § 2255); Weinberger v. United States, 268 F.3d 346, 351-52 (6th Cir. 2001) (evaluating a restitution challenge in a § 2255 motion, but in the context of an ineffective assistance of counsel claim).
Mr. McMillon nonetheless argues that in the plea agreement he reserved the right to contest the amount of restitution to be paid. Specifically, the provision of the plea agreement provides as follows:
3. Relevant Conduct. The defendant agrees that the conduct charged in any dismissed counts of the indictment is to be considered as well as other uncharged related criminal activity as relevant conduct for purposes of calculating the offense level for Counts 9 and 15, in accordance with United States Sentencing Guidelines, Section 1B1.3(a)(2). The defendant agrees to pay restitution to the following for taxes he withdrew from their bank accounts but failed to forward to the IRS as determined by the Court, but the defendant reserves the right to contest the following suggested amounts of restitution to be paid . . .
(Emphasis added.) But only those issues that the defendant has specifically mentioned in the plea agreement are preserved for further consideration. Anderson, 374 F.3d at 958. Here, the only specific issue that Mr. McMillon preserved for further consideration was the right to contest the restitution amount at sentencing. As explained previously, under the plain language of the plea agreement he unambiguously waived the right to appeal or collaterally attack the court's ruling on any matter in connection with his sentence, which includes the court's restitution order. Indeed, this plain language of the plea agreement is consistent with the court's Rule 11 colloquy with Mr. McMillon, discussed infra, during which he testified that he understood that he was bargaining away his right to recourse under § 2255 but that the issue of restitution could be contested at the sentencing hearing. Accordingly, pursuant to the plain language of the plea agreement which is consistent with what was discussed during the Rule 11 colloquy, in paragraph 3 of the plea agreement Mr. McMillon only reserved the right to contest the restitution issue at sentencing, not via collateral attack.
2. Knowing and Voluntary
Second, the court must "ascertain whether the defendant knowingly and voluntarily waived his . . . rights." Hahn, 359 F.3d at 1325. In making this determination, the court evaluates the language of the plea agreement and the court's Rule 11 colloquy with the defendant. Id. In this case, the last paragraph of the plea agreement that is immediately prior to the prosecutors' and Mr. McMillon and his attorney's signatures states that Mr. McMillon has had sufficient time to discuss the matter with his attorney and is satisfied with his attorney's representation, that he has read and understands the plea agreement, and that he "acknowledges that [he] is entering into this agreement and is pleading guilty because [he] is guilty and is doing so freely and voluntarily." In addition, the court's Rule 11 colloquy with Mr. McMillon reflects that he gave his plea of guilty freely and voluntarily. At that time, counsel for the government recited the terms of the plea agreement and pointed out that Mr. McMillon agreed to pay restitution as stated on pages five through nine of the plea agreement, but that there might be some evidence or testimony presented at sentencing regarding the amounts or whether some of the businesses were actually victims of Mr. McMillon's unlawful conduct. In addition, the court pointed out that under the terms of the plea agreement Mr. McMillon had bargained away his right to recourse via a § 2255 motion. Mr. McMillon testified that he understood the terms of the plea agreement and that he was entering his guilty plea freely and voluntarily. In sum, the language of the plea agreement and the Rule 11 colloquy clearly establish that Mr. McMillon's waiver of his rights was knowing and voluntary.
3. Miscarriage of Justice
Finally, the court must "determine whether enforcing the waiver will result in a miscarriage of justice." Hahn, 359 F.3d at 1327. This test is met only if: (1) the district court relied on an impermissible factor such as race; (2) the defendant received ineffective assistance of counsel in conjunction with the negotiation of the waiver; (3) the sentence exceeds the statutory maximum; or (4) the waiver is otherwise unlawful in the sense that it suffers from error that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. The defendant bears the burden of demonstrating that the waiver results in a miscarriage of justice. Anderson, 374 F.3d at 959. Here, although Mr. McMillon does not contend that enforcing the waiver would result in a miscarriage of justice, the court has independently evaluated this issue and finds that the waiver did not run afoul of any of the four factors listed above. Thus, the court finds that enforcing the waiver will not result in a miscarriage of justice. IT IS THEREFORE ORDERED BY THE COURT that Mr. McMillon's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 32) is summarily denied.
Because the court is summarily denying Mr. McMillon's § 2255 motion, the court will also deny as moot his motion to compel discovery (doc. 34), motion for appointment of expert witness (doc. 35), and motion for hearing (doc. 39).
IT IS FURTHER ORDERED BY THE COURT that Mr. McMillon's motion for leave to proceed in forma pauperis (doc. 33), motion to compel discovery (doc. 34), motion for appointment of expert witness (doc. 35), motion for appointment of counsel (doc. 38), and motion for hearing (doc. 39) are denied.
IT IS SO ORDERED.