Opinion
99 CR. 1189 (SWK)
December 5, 2002
OPINION
On mandate from the Second Circuit Court of Appeals, the Court held a hearing on June 26, 2002 to determine whether defendant's counsel, John Byrnes, Esq., informed defendant that he would face up to 75 years imprisonment if he pleaded not guilty and was convicted on seven counts charging firearms possession as a convicted felon in violated of 18 U.S.C. § 922(g) and one count charging possession of a firearm with an obliterated or removed serial number.
At that hearing, both the defendant and Mr. Byrnes testified as to the substance of their conversations prior to the defendant's plea of guilty on May 10, 2000. Mr. Byrnes testified that he met with his client several times to discuss the indictment, the charges, the sentencing guidelines and how they would apply to the case, whether or not the defendant should proceed to trial, and generally, what the defendant's options were. See Transcript of June 26, 2002 Hearing at 4 ("Tr."). Mr. Byrnes also testified that during a meeting with the defendant on February 27, 2000, he made some tentative calculations as to what he thought the guidelines might be if the defendant pleaded guilty at that time to the existing eight count indictment. See Tr. at 6; Gov't Ex. 1. In those initial calculations, Mr. Byrnes informed the defendant that his possible maximum exposure under the counts charged in the indictment was 10 years on each of the seven gun possession charges and 5 years on the obliterated serial number charge, for a total maximum exposure of 75 years. Later, under a Pimentel letter drafted by the Government and submitted to the defendant and his attorney, the defendant was informed that the Government believed the applicable guideline range would be 110 to 137 months, with all eight counts grouped together for sentencing purposes. See Tr. at 9; Gov't Ex. 2. Finally, on May 7, 2000, just days before the defendant's scheduled trial date, Mr. Byrnes again met with the defendant and left with him a sheet of notes from that meeting that outlined several sentencing possibilities if the defendant chose to go to trial or accepted a plea agreement with the Government. See Tr. at 16-21; Gov't Ex. 4. In those notes, Mr. Byrnes initially outlined the possibility that, if the Government could prove all eight counts of the indictment at trial, the defendant could face up to 75 years imprisonment. See Gov't Ex. 4. The notes also illustrate that Mr. Byrnes outlined the consequences of the defendant pleading guilty pursuant to the one count plea agreement, and the possible sentencing guidelines that would apply in that situation.Id.
The defendant also testified at the hearing, stating that it was his understanding that if he proceeded to trial and was convicted on all eight counts in the indictment, he would receive 75 months imprisonment and that the sentencing guidelines would not apply in that situation.See Tr. at 40-41, 43.
The Court finds the testimony of Mr. Byrnes credible as to his recall of conversations between he and his client and the progression of the case. As Mr. Byrnes clearly recalled, he told the defendant it was a possibility that he could face up to the statutory maximum of 75 years if the case proceeded to trial, he was convicted, and the Government could prove each of the eight counts contained in the indictment. Therefore, it is the Court's conclusion that Mr. Byrnes informed the defendant that he would face up to 75 years imprisonment if he pleaded not guilty and was convicted on seven counts charging firearms possession as a convicted felon in violation of 18 U.S.C. § 922(g) and one count charging possession of a firearm with an obliterated or removed serial number.