Opinion
Criminal No. 98-464-01, Civil Action No. 04-109.
April 8, 2004
MEMORANDUM AND ORDER
Randy Ogrod pleaded guilty before this Court to conspiracy to distribute P2P on August 14, 2000. As part of the guilty plea agreement, the Government agreed to make a motion for a downward departure from the Sentencing Guidelines pursuant to Sentencing Guidelines § 5K1.1, in exchange for Ogrod's full and truthful cooperation. The government filed such a motion and I sentenced Ogrod to 70 months imprisonment on October 2, 2001. The Third Circuit affirmed Ogrod's sentence in an unpublished opinion on November 5, 2002. On January 13, 2003, the Supreme Court denied Ogrod's Petition for Certiorari. He now files a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
Ogrod asserts three grounds for relief. First, he alleges that his counsel was ineffective for failing to disclose to him that his stipulation to distributing P2P for the purpose of manufacturing methamphetamine would be treated more harshly under the Sentencing Guidelines than distributing P2P without such a purpose. Second, Ogrod alleges that his counsel was ineffective for failing to investigate that his co-conspirator, Victor Campagna, was a paid government informant. Third, Ogrod argues that his conviction is unconstitutional because the government failed to disclose that Campagna was allegedly a paid government informant.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court sets forth the principles that apply to claims of ineffective assistance of counsel. Before a conviction will be overturned, a defendant must show two things: (a) that his counsel did not provide reasonably effective assistance considering all the circumstances, and (b) that "there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 686-88, 694. In other words, the defendant must "prove both incompetence and prejudice. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
This two pronged Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57-59 (1985). In the context of guilty pleas, the first prong is a restatement of the highly deferential standard of attorney competence described above. Under the second prong, 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." Id. at 59.
Ogrod's main claim arises out of the difference in the Sentencing Guidelines between distributing P2P for the purpose of manufacturing methamphetamine and distributing P2P for some other purpose. The offense level for the former is 28 and 22 for the latter. At the sentencing hearing, I reduced the offense level from 28 to 26, giving Ogrod the benefit of the doubt because the stolen jar of P2P was only "approximately" one liter. I then departed down to a level 20. Ogrod ended up getting a sentence below the Guideline range that would have been applicable to a guilty plea or a conviction after trial for distributing the P2P for a purpose other than manufacturing methamphetamine.
Ogrod appears to complain that his counsel was ineffective because he did not tell him that there is another crime that carries with it a lesser guideline range. But, he was not charged with that crime and the government was not offering a plea agreement to that charge. It is like saying that a lawyer is ineffective because he did not tell his client who is charged with armed robbery that there is another charge called robbery that carries a lesser sentence.
Ogrod does not assert his innocence in his § 2255 motion. He does not even assert that he possessed the P2P for a purpose other than manufacturing methamphetamine. He appears to be saying that he would have gone to trial to challenge the government's evidence with respect to the purpose of his distribution of the P2P. This argument makes very little sense.
After the defendant had either pleaded guilty or been convicted after trial of distribution not for the purpose of manufacturing methamphetamine, he would have received a higher sentence than the sentence the Court imposed because he would not have received a 5K1.1 motion. He would have been sentenced at the 21 offense level, rather than 20.
In any event, during the guilty plea colloquy, Ogrod admitted that he possessed the P2P for the purpose of manufacturing methamphetamine. That fact was stated in the plea agreement and Ogrod conceded that those were the terms of his plea agreement. Ogrod confirmed during the plea colloquy that he had stipulated to the Guidelines calculations set forth in the plea agreement after consulting with his counsel about the Guidelines. Those stipulations turned out to be the calculations that I later applied in imposing sentence subject to a downward departure in Ogrod's favor on both weight and for the purpose of substantial assistance. I asked Ogrod's counsel whether he was satisfied that there was a factual basis for the plea and whether the defendant had a full understanding of the nature of the charges and the maximum penalty to which counsel replied: "Yes, Your Honor."
There can be no question that Ogrod's counsel reviewed the guilty plea and the applicable Guidelines calculation with Ogrod and that Ogrod was well aware of the consequences of stipulating to distributing P2P for the purpose of manufacturing methamphetamine. This stipulation was amply supported by the facts to which Ogrod himself agreed. Indeed, Ogrod has never, up to this point, described a "purpose" for distributing the P2P other than the purpose of manufacturing methamphetamine.
Neither prong of the Strickland test is met here. Nor does the Court see any basis for an evidentiary hearing.
Orgod's other two claims do not merit a lengthy discussion. Ogrod alleges that his counsel was ineffective because he failed to investigate that Ogrod's co-conspirator was supposedly a paid government informant. Campagna was not acting as a government informant in committing the acts that formed the conspiracy count in the indictment. Campagna was charged in the same indictment with Ogrod and pleaded guilty to criminal conspiracy, just as Ogrod did. Campagna was cooperating with the DEA during the time of the offenses charged in this case; but, his conduct in this case — to which he pleaded guilty — was not pursuant to that cooperation. The government disclosed this information to Ogrod two months before his guilty plea. Nor is there any sort of a Brady or Giglio problem here. Campagna was not a government informant and, in any event, the facts surrounding his cooperation with the DEA on other matters was disclosed.
An appropriate order follows.