Opinion
CRIMINAL ACTION NO. 02-292, SECTION "R" (2).
December 30, 2004
ORDER AND REASONS
Before the Court is petitioner Kevin Tan Nguyen's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court DENIES Nguyen's motion.
I. BACKGROUND AND PROCEDURAL HISTORY
On August 20, 2003, pursuant to a written plea agreement, Nguyen pleaded guilty to a five-count superseding bill of information, including one count of knowingly and intentionally conspiring to distribute and to possess with intent to distribute a quantity of 3, 4-methylenedioxymethamphetamine (MDMA) ("ecstasy") and more than five (5) but less than fifty (50) grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), all in violation of 21 U.S.C. § 846, and four counts of knowingly and intentionally distributing a quantity of MDMA, in violation of 21 U.S.C. § 841 (a) (1). As part of his plea agreement, Nguyen waived his right to contest his sentence in any post-conviction proceeding, including a proceeding under 28 U.S.C. § 2255, except under limited circumstances. ( See Plea Agreement, Doc. No. 63). Specifically, Nguyen reserved the right to challenge (1) any punishment imposed in excess of the statutory maximum, and (2) any punishment to the extent it constitutes an upward departure from the Guideline range deemed most applicable by the sentencing court. ( See id.).
The plea agreement was submitted in the form of a Bryan letter. See Bryan v. United States, 492 F.2d 775 (5th Cir. 1974).
At sentencing, the Court assigned a total offense level of 23. That total offense level reflected a base offense level of 28 for the aggregate drug quantity of 28 grams of cocaine and 153.4 grams of ecstasy, a three level decrease for acceptance of responsibility, and a two level decrease for the safety valve provision of U.S.S.G. § 5C1.2. The Court also assigned a criminal history category of I, which resulted in a Guideline sentencing range of 46 to 57 months. Although Nguyen pleaded guilty to an offense with a mandatory minimum of 60 months imprisonment, the Court noted that Nguyen met the "safety valve" criteria established by section 5C1.2 and that he therefore was eligible for sentencing within the 46-57 month Guideline range. On November 20, 2003, the Court entered judgment against Nguyen, sentencing him to a concurrent term of 46 months imprisonment on counts one through five and a term of supervised release of five years on count one and three years on counts two through five, all to run concurrently. Nguyen's sentence was not in excess of the statutory maximum (40 years), and it did not constitute an upward departure from the applicable sentencing range (46-57 months).
Nguyen did not file a direct appeal of his sentence or conviction. On July 28, 2004, Nguyen filed this timely petition for post-conviction relief under 28 U.S.C. § 2255. In his petition, Nguyen alleges that his counsel, Raymond McGuire, provided ineffective assistance when he failed to investigate and seek dismissal of the cocaine base charge and misinformed Nguyen that the charge would not affect his guideline range. Nguyen asserts that this advice unlawfully induced him to plead guilty to the cocaine base charge.
II. DISCUSSION
A. Waiver
As noted, Nguyen waived his right to challenge his sentence in a post-conviction proceeding if his sentence was below the statutory maximum and within the statutory Guideline range. The Fifth Circuit has held that a waiver of post-conviction relief such as 28 U.S.C. § 2255 is valid if the waiver is informed and voluntary. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The defendant must know that he had "a right to appeal his sentence and that he was giving up that right." United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). It is the responsibility of the district court "to insure that the defendant fully understands [his] right to appeal and the consequences of waiving that right." United States v. Gonzalez, 259 F.3d 355, 357 (5th Cir. 2001) (quoting United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992)).
Here, the evidence indicates that Nguyen's waiver was both knowing and voluntary. His signed plea agreement contained an express waiver of his right to appeal or seek relief under section 2255 if his sentence was within the applicable sentencing guideline range and below the statutory maximum. ( See Plea Agreement, Doc. No. 63.) During Nguyen's rearraignment, the Court summarized the superseding bill of information, reviewed the provisions of the plea agreement, and noted the mandatory minimum and maximum sentences under the statutes. ( See Transcript of Rearr., Govt.'s Mem. Opp. Def.'s Mot., Ex. B at 11-13). The Court also advised Nguyen that the government would have to prove the charge of conspiracy to distribute and possess with the intent to distribute cocaine base, as well as the quantity involved in that conspiracy charge, beyond a reasonable doubt if he chose to go to trial. ( See id. at 16-17). Nguyen indicated that he understood the ramifications of pleading guilty. The Court asked the lawyers to review the terms of the plea agreement, and Nguyen confirmed that he understood the terms of the plea agreement and had reviewed it with his lawyer. ( See id. at 20). Nguyen responded negatively when asked whether he had been influenced, induced or persuaded in any manner to plead guilty because of any promises or threats made to him by anyone. ( See id. at 20). The Court specifically questioned Nguyen about his waiver of the right to appeal, and he confirmed that he knowingly waived his right to challenge his sentence. ( See id. at 22). The Court determined on the record that Nguyen understood the nature of the rights that he was forfeiting. ( Id. at 22-23). See Frank v. United States, 501 F.2d 173, 175 (5th Cir. 1973). Thus, Nguyen affirmed that he fully understood and voluntarily approved of his plea. "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). At no time during the rearraignment hearing did Nguyen indicate that he did not understand the consequences of his actions. See Wilkes, 20 F.3d at 653. The Court therefore finds that Nguyen knowingly and voluntarily waived his right to pursue post-conviction relief under section 2255.
The transcript of the rearraignment states in pertinent part:
THE COURT: KEVIN TAN NGUYEN, COUNT ONE OF THE SUPERSEDING BILL OF INFORMATION CHARGES THAT YOU CONSPIRED WITH CO-DEFENDANTS AND OTHERS TO DISTRIBUTE AND POSSESS WITH THE INTENT TO DISTRIBUTE A QUANTITY OF THREE, FOUR MDMA, ECSTASY, AS WELL, MORE THAN FIVE GRAMS BUT LES THAN 50 GRAMS OF COCAINE BASE, OR CRACK, IN VIOLATION OF TITLE 21, UNITED STATES CODE, SECTION 846. THE MAXIMUM POSSIBLE SENTENCE THAT CAN BE IMPOSED ON YOU IN THE EVENT OF CONVICTION ON COUNT ONE EITHER BY PLEADING GUILTY OR AFTER A TRIAL AT WHICH YOU ARE FOUND GUILTY, IS A 40-YEAR TERM OF IMPRISONMENT WITH A MANDATORY MINIMUM SENTENCE OF FIVE YEARS, AND A FINE OF UP TO $2 MILLION DOLLARS OR THE GREATER OF TWICE THE GROSS GAIN TO YOU OR TWICE THE GROSS LOSS TO ANY PERSON. THE MAXIMUM POSSIBLE SENTENCE WOULD ALSO PROVIDE FOR A TERM OF SUPERVISED RELEASE FOLLOWING IMPRISONMENT FOR UP TO FIVE YEARS.
COUNTS 2, 3, 4, AND 5 OF THE SUPERSEDING BILL OF INFORMATION CHARGE YOU WITH KNOWINGLY AND INTENTIONALLY DISTRIBUTING A QUANTITY OF ECSTASY ON OR ABOUT AUGUST 23, 2001, AND AUGUST 30, 2001, OCTOBER 26, 2001, AND MARCH 8, 2002. THE MAXIMUM POSSILE SENTENCE THAT CAN BE IMPOSED ON YOUR IN THE EVENT OF CONVICTION ON EACH OF THESE COUNTS, 2, 3, 4, OR 5, EITHER BY PLEADING GUILTY OR AFTER A TRIAL IN WHICH YOU ARE FOUND GUILTY, IS A 20-YEAR TERM OF IMPRISONMENT AND A FINE OF UP TO $1 MILLION, OR THE GREATER OF TWICE THE GROSS GAIN TO YOU OR TWICE THE GROSS LOSS TO ANY PERSON. THE MAXIMUM POSSIBLE SENTENCE ON COUNTS 2 THROUGH 4 OR 5 WOULD ALSO PROVIDE FOR A TERM OF SUPERVISED RELEASE FOLLOWING IMPRISONMENT OF UP TO THREE YEARS.
The transcript states in pertinent part:
THE COURT: DO YOU UNDERSTAND THAT IF YOU WENT TO TRIAL, YOU WOULD BE ENTITLED TO A SPEEDY AND PUBLIC TRIAL BY A JURY OF 12 PERSONS OR BY THE JUDGE IF YOU WAIVE THE JURY TRIAL?
(ALL DEFENDANTS RESPOND AFFIRMATIVELY.)
THE COURT: DO YOU UNDERSTAND THAT BEFORE YOU COULD BE FOUND GUILTY OF A VIOLATION OF TITLE 21, UNITED STATES CODE, SECTION 846, WHICH IS CHARGED IN COUNT 1, THE CONSPIRACY COUNT OF THE INDICTMENT, THAT THE GOVERNMENT WOULD BE REQUIRED TO PROVE BY COMPETENT EVIDENCE AND BEYOND A REASONABLE DOUBT THE FOLLOWING FACTS: FIRST, THAT TWO OR MORE PERSONS DIRECTLY OR INDIRECTLY REACHED AN AGREEMENT TO DISTRIBUTE AND POSSESS WITH THE INTENT TO DISTRIBUTE MDMA, OR ECSTASY, AND 50 GRAMS OR MORE OF COCAINE BASE, OR CRACK; SECOND, THAT YOU KNEW THE UNLAWFUL PURPOSE OF THE AGREEMENT; THIRD, THAT YOU JOINED IN THE AGREEMENT WILLFULLY, THAT IS, WITH THE INTENT TO FURTHER ITS UNLAWFUL PURPOSE; AND FOURTH, THAT THE OVERALL SCOPE OF THE CONSPIRACY INVOVLED A QUANTITY OF MDMA OR ECSTASY AND 50 GRAMS OR MORE OF COCAINE BASE, OR CRACK. MR. KEVIN NGUYEN, THAT'S THE SENTENCING THE GOVERNMENT WOULD HAVE TO HAVE PROVED UNDER COUNT ONE OF THE SUPERSEDING BILL OF INFORMATION.
MR. McGUIRE: CAN I SAY, YOUR HONOR, INSOFAR AS CRACK COCAINE, YOUR HONOR, IT'S MORE THAN FIVE BUT LESS THAN 50.
THE COURT: OKAY, I STAND CORRECTED, THEN. LET ME JUST GO THROUGH IT FOR YOU, THEN. AS TO COUNT ONE OF THE SUPERSEDING BILL OF INFORMATION, THE GOVERNMENT WOULD HAVE HAD TO HAVE PROVED THAT TWO OR MORE PERSONS, DIRECTLY OR INDIRECTLY, REACHED AN AGREEMENT TO DISTRIBUTE AND POSSESS, WITH THE INTENT TO DISTRIBUTE MDMA, OR ECSTASY, AND MORE THAN FIVE BUT LESS THAN 50 GRAMS OF COCAINE BASE, OR CRACK, THAT YOU KNEW OF THE UNLAWFUL PURPOSE OF THE AGREEMENT, THAT YOU JOINED IN THE AGREEMENT WILLFULLY, THAT IS, WITH THE INTENT TO FURTHER ITS UNLAWFUL PURPOSE, AND THAT THE OVERALL SCOPE OF THE CONSPIRACY INVOVLED A QUANTITY OF MDMA, OR ECSTASY, AND MORE THAN FIVE BUT LESS THAN 50 GRAMS OF COCAINE BASE, OR CRACK. ARE WE STRAIGHT ON THAT?
MR. KEVIN TAN NGUYEN: YES, MA'AM.
The transcript states in pertinent part:
THE COURT: I WANT TO MAKE SURE THAT EACH OF YOU UNDERSTAND THAT UNDER THE PLEA AGREEMENTS THAT YOU HAVE WITH THE GOVERNMENT, YOU HAVE EXPRESSLY WAIVED YOUR RIGHT TO APPEAL ANY SENTENCE I IMPOSE, INCLUDING BY BRINGING IN A POST-CONVICTION PROCEEDING EXCEPT THAT YOU HAVE RESERVED YOUR RIGHT TO APPEAL ANY PUNISHMENT THAT'S IN EXCESS OF THE STATUTORY MAXIMUM OR THAT AMOUNTS TO AN UPWARD DEPARTURE FROM THE GUIDELINE RANGE DEEMED APPLICABLE BY THE COURT. DO YOU UNDERSTAND THAT?
(ALL DEFENDANTS RESPOND AFFIRMATIVELY.)
THE COURT: DO YOU UNDERSTAND THIS MEANS THAT YOU WAIVE YOUR RIGHT TO APPEAL ANY ERRORS THAT I MAKE IN CALCULATING THE GUIDELINE RANGE?
(ALL DEFENDANTS RESPOND AFFIRMATIVELY.)
Nguyen indicated confusion only once, when the Court asked Nguyen whether anyone had told him what sentence the Court would impose. The transcript demonstrates, however, that Nguyen understood that the Court would be the one to decide what sentence he would receive and that his lawyer gave him only an estimate:
THE COURT: OKAY. MR. KEVIN NGUYEN, DID ANYONE TELL YOU WHAT SENTENCE I WILL IMPOSE?
MR. KEVIN TAN NGUYEN: YES, MA'AM, ACCORDING TO MY ATTORNEY.
THE COURT: DID YOUR LAWYER REPRESENT THAT HE KNEW THE EXACT SENTENCE THAT THE JUDGE IS GOING TO GIVE YOU?
MR. KEVIN TAN NGUYEN: NO, MA'AM.
THE COURT: TELL ME, DID HE GIVE YOU A GENERAL EXPLANATION OF THE GUIDELINE RANGE AND WHAT HE THOUGHT — HOW HE THOUGHT THE GUIDELINES WOULD APPLY, AND HOW HE THOUGHT THE MANDATORY MINIMUM SENTENCE WOULD APPLY? IS THAT WHAT HE EXPLAINED TO YOU?
MR. KEVIN TAN NGUYEN: NO, MA'AM.
THE COURT: WHAT?
(DEFENDANT KEVIN TAN NGUYEN CONFERS WITH COUNSEL.)
MR. KEVIN TAN NGUYEN: YES, MA'AM.
MR. McGUIRE: WE TALKED ABOUT POSSIBILITIES, YOUR HONOR. WE TALKED ABOUT POSSIBILITIES OF WHAT COULD HAPPEN UNDER THE GUIDELINES AND WHAT THE COURT COULD DO, AND THAT'S BASICALLY WHAT WE TALKED ABOUT.
THE COURT: WHAT I'M TRYING TO MAKE SURE HE UNDERSTANDS IS THAT I'M THE ONE WHO DECIDES TO SENTENCE YOU, SO, WHATEVER YOUR LAWYER HAS TOLD YOU IS NOT BINDING ON ME. SO, IF HE HAS TOLD YOU WHAT SENTENCE YOU'RE GOING TO GET, THEN HE CANNOT ASSURE YOU OF THAT BECAUSE I'M THE ONE THAT'S GOING TO SENTENCE YOU. SO, WHAT I WANT TO UNDERSTAND IS, HAS YOUR LAWYER MADE ANY REPRESENTATION TO HIM AS TO WHAT SENTENCE THIS COURT IS GOING TOT GIVE YOU THE DAY YOU SHOW UP HERE FOR SENTENCING?
MR. KEVIN TAN NGUYEN: YES, MA'AM.
(DEFENDANT KEVIN TAN NGUYEN CONFERS WITH COUNSEL.)
MR. KEVIN TAN NGUYEN: ACTUALLY, HE TOLD ME ABOUT THE GUIDELINES AND WHAT MY CHOICES ARE AND HOW MUCH I'M — I MEAN, THE POSSIBILITY TO BE SENTENCED BY THE GUIDELINES.
MR. McGUIRE: I ALSO TOLD HIM, YOUR HONOR, "NO GUARANTEES." DID I USE THAT WORD?
MR. KEVIN TAN NGUYEN: YES.
THE COURT: AND ESPECIALLY THAT THE COURT IS THE ONE THAT HAS TO ULTIMATELY DECIDE THE SENTENCE?
MR. KEVIN TAN NGUYEN: YES, MA'AM. (Rearr. Transcript at 26-28).
B. Ineffective Assistance in Plea Negotiations
Nguyen nevertheless appears to challenge the plea agreement that produced his waiver on the grounds of ineffective assistance of counsel. The Fifth Circuit has held that an argument that a defendant received ineffective assistance of counsel at a stage of the proceedings other than the plea or waiver itself survives a waiver of appeal when the allegedly defective assistance directly affects the validity of the waiver or the plea itself. United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). Here, Nguyen alleges that his attorney's failure to seek dismissal of the cocaine base charge and his erroneous advice that the charge would not affect Nguyen's guideline range affected the validity of Nguyen's plea. Accordingly, the Court will consider whether Nguyen's guilty plea was invalid because of ineffective assistance of counsel.
To establish a claim of constitutionally ineffective assistance of counsel, Nguyen must show both (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance, the likely outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-96 (1984). Nguyen must meet both prongs of the Strickland test to succeed. See id. at 687. To establish the first prong, deficient performance, Nguyen must show that his counsel's representation "fell below an objective standard of reasonableness." Jones v. Jones, 163 F.3d 275, 279 (5th Cir. 1997) (quoting Strickland, 466 U.S. at 688). The Court applies a highly deferential standard to the examination of counsel's performance. See id. The second, or prejudice, prong of Strickland requires Nguyen to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. If Nguyen fails to establish either deficient performance or actual prejudice, the Court may dispose of the claim without addressing the other prong. Id. at 697.
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court applied the Strickland test to cases involving guilty pleas. In the guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pleaded guilty but for the error. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). Under the first prong of the Strickland/Hill test, if a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, "the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56 (internal quotes omitted). To meet the second, prejudice prong of the test, a petitioner must establish that but for his counsel's allegedly erroneous advice, he would not have pleaded guilty but would have insisted on going to trial. Id. at 59; see also Armstead, 37 F.3d at 206 (citing Carter v. Collins, 918 F.2d 1198, 1200 (5th Cir. 1990)).
Here, Nguyen contends that McGuire's performance was defective because McGuire failed to investigate and seek dismissal of the cocaine base charge. Nguyen also contends that McGuire misinformed Nguyen that the cocaine base charge would not affect Nguyen's guideline range, which made Nguyen's guilty plea involuntary because he did not realize that he would have a lower offense level if the cocaine base charge were dropped. Nguyen has not shown that his counsel's performance was deficient. First, the record belies Nguyen's claim that his counsel failed to investigate and seek dismissal of the cocaine base charge. Nguyen was originally charged with conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base. ( See Indictment, R. Doc. 1). Nguyen's counsel successfully negotiated a plea agreement under which Nyugen was charged with conspiracy to distribute a lesser quantity of cocaine base, more than five and less than 50 grams, while Nguyen's co-defendants received longer sentences based on the original charge of 50 grams. The Court is unable to say that such assistance falls outside the range of competence under the deferential Strickland standard. In addition, the record shows that Nguyen responded negatively when asked whether he had been influenced, induced or persuaded in any manner to plead guilty because of any promises or threats made to him by anyone. ( See Rearr. Transcript at 20). Nguyen has produced no evidence that would refute his own sworn statements that he voluntarily pleaded guilty to the cocaine base charge and was not induced to do so by any promises made by his counsel or anyone else. Thus, the Court finds that Nguyen has failed to show that McGuire's performance was deficient under Strickland.
Nguyen has also not met the prejudice prong of Strickland because he has not shown that, but for his counsel's allegedly erroneous advice, he would not have pleaded guilty. Whether the petitioner is able to argue persuasively that he was prejudiced by erroneous advice depends partly on his chances for success at trial. See Magnum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995). Here, the government notes that the evidence against Nguyen on the conspiracy count was strong, consisting of tape-recorded conversations. Nguyen has produced no evidence that, but for allegedly erroneous advice that the cocaine base charge would not affect his sentence, Nguyen would have proceeded to trial in the face of that evidence. Furthermore, by pleading guilty instead of proceeding to trial, Nguyen received a three point reduction for acceptance of responsibility, which qualified him for the "safety valve" provision of section 5C1.2 and allowed him to avoid the mandatory minimum sentence of 60 months. The Court finds it unlikely that, under the circumstances, i.e., the favorable, negotiated plea, the evidence the government had against Nguyen, and the potential consequences of proceeding to trial, Nguyen would have decided to proceed to trial but for the allegedly erroneous advice he received. See id. at 86. The Court finds that Nguyen was not prejudiced. Nguyen therefore has failed to demonstrate either deficient performance or prejudice, and his claim that his counsel rendered ineffective assistance during plea negotiations must fail.
C. Ineffective Assistance of Counsel at Sentencing
To the extent that Nguyen challenges the effectiveness of his counsel at sentencing, that claim is barred by Nguyen's knowing and voluntary waiver of his right to post-conviction relief. Challenges to counsel's effectiveness at sentencing are not cognizable on collateral attack when a petitioner enters a plea agreement in which he knowingly and voluntarily waives his right to challenge the sentence under section 2255, and his guilty plea is not tainted by ineffective assistance of counsel. See White, 307 F.3d at 341-42 (citing with approval authority which holds that the ineffective assistance of counsel exception to waivers of appeal is limited to cases that directly implicate the waiver and does not extend to cases that merely challenge the attorney's performance at sentencing). Here, the Court determined that Nguyen knowingly and voluntarily waived his right to post-conviction relief ( see discussion, supra, at 3-8) and that his guilty plea was not invalid for ineffective assistance of counsel ( see discussion, supra, at 8-13). The Court therefore finds that Nguyen validly waived any challenge to his counsel's performance at sentencing or to the alleged defects in his sentence.
III. CONCLUSION
For the foregoing reasons, the Court DENIES petitioner's section 2255 motion to vacate, set aside, or correct the sentence.