United States v. Chammas ( 2018 )


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  •                              UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    UNITED STATES OF AMERICA,
    v.                          Case No. 16-cr-00171 (CRC)
    LABIB CHAMMAS,
    Defendant.
    MEMORANDUM OPINION
    In October 2016, Labib Chammas pleaded guilty to abusive sexual contact in violation of
    
    18 U.S.C. § 2244
    (a)(2). The Court subsequently sentenced Chammas to a term of 30 months of
    incarceration followed by five years of supervised release. Currently before the Court is
    Chammas’s pro se motion to vacate both his conviction and sentence pursuant to 
    28 U.S.C. § 2255
    . Chammas asserts that he was denied the effective assistance of counsel at both the plea
    and sentencing stages of his prosecution. In addition, he requests that his § 2255 petition be
    assigned to a different judge than the undersigned “to avoid any and all potential biases that may
    exist,” suggesting the Court will not impartially review the petition because it is familiar with the
    counsel Chammas now claims was ineffective. Because there is no basis for Chammas’s
    assertions of judicial bias, the Court will decline that request. And, with the exception of one
    issue as to which the Court will reserve judgment pending the submission of additional evidence
    by the government, the Court will also deny Chammas’s § 2255 motion for relief from his
    conviction and sentence.
    I.    Background
    Chammas and his wife, the former Deputy Chief of Mission (“DCM”) for the State
    Department in Rabat, Morocco, lived at the DCM residence from August 2010 to February 2013.
    Statement of the Offense at 49. 1 During that period, Chammas was responsible for managing the
    household and staff. Id. at 50. According to employees, Chammas “was an abusive head-of-
    household” who frequently yelled at them and threatened to fire them. Id. In February 2013,
    during a routine inspection of the U.S. Embassy, the State Department’s Office of the Inspector
    General (“OIG”) received an anonymous letter reporting that Chammas was sexually abusing a
    female cook employed at the DCM residence. Aff. in Supp. of Crim. Compl. and Arrest Warrant
    (“Affidavit”) at 10.
    OIG inspectors interviewed Chammas on February 13 and 14, 2013. See Mem. of
    Interview of Labib Chammas (“Chammas MOI”), Feb. 13, 2013 at 31–33; Chammas MOI, Feb.
    14, 2013 at 34–37. Chammas acknowledged having sexual contact with the victim during
    massages, admitted ejaculating during those massages, and conceded that his penis came into
    contact with the victim’s face on at least one occasion. Id. The government executed a search
    warrant of the DCM residence, collected potential biological evidence, obtained a warrant for
    Chammas’s DNA, and determined that the DNA evidence was consistent with the victim’s
    account. Affidavit at 19–20. In the course of the government’s investigation into the reports of
    abuse, the government also initiated a second investigation into possible forced-labor practices at
    the DCM residence. Sentencing Hr’g at 165–66.
    While the investigations were ongoing, Chammas traveled to Lebanon with his wife in
    April 2015. Mot., ECF 33, ¶ 29. His wife returned to the United States a month later, but
    Chammas went to Syria ostensibly to resolve certain family and employment issues. Id.
    1
    Unless otherwise noted by docket number, the documents cited in this memorandum
    opinion are those attached to the government’s opposition, see Opp’n, ECF No. 38, and are
    referred to by title and Bates stamp number.
    2
    Chammas left Syria and returned to the United States in May 2016. Id. While Chammas was
    abroad, the government decided to seek a warrant for his arrest. Sentencing Hr’g at 166–67.
    Soon after he returned from more than a year overseas, Chammas was arrested at his home on
    May 19, 2016 and charged by complaint with aggravated sexual abuse in violation of 
    18 U.S.C. § 2241
    (a)(1). That offense carries a maximum penalty of life imprisonment.
    In October 2016, Chammas pleaded guilty to a lesser charge of abusive sexual contact in
    violation of 
    18 U.S.C. § 2244
    (a)(2). Plea Agreement at 38. As part of the plea agreement, the
    parties agreed that the Statement of Offense, which Chammas signed, fairly and accurately set
    forth his offense conduct. 
    Id. at 39
    . According to the Statement, Chammas began asking the
    victim for massages soon after moving into the DCM residence. During the course of these
    massages, Chammas demanded that she massage his penis with her hands; the victim complied
    out of fear that she would be fired otherwise. Statement of Offense at 49–50. In addition, on at
    least five occasions between August 2010 and February 2013, Chammas attempted to insert his
    penis into the victim’s mouth against her will by pulling or attempting to pull her head toward
    his penis. 
    Id. at 50
    . In each instance, the victim closed her mouth and turned her face to the side.
    
    Id.
    Based on the conduct described in the Statement, the parties also agreed that Chammas’s
    conduct supported an increase to his offense level calculation under the Sentencing Guidelines
    because his conduct involved the use of force in violation of 
    18 U.S.C. § 2241
    (a). Plea
    Agreement at 39. In addition, because the Guidelines range for Chammas’s offense conduct
    exceeded the three-year maximum statutory penalty for abusive sexual contact, the parties agreed
    that a Guidelines-compliant sentence would be 36 months. 
    Id.
     at 40 n.1. Finally, the parties
    3
    agreed that Chammas would not seek a sentence of less than one year and a day of incarceration.
    
    Id. at 41
    .
    After the plea, the Court granted defense counsel’s request that Chammas remain on
    release pending sentencing based on Chammas’s age (65 at the time) and various medical
    conditions. See Oct. 24, 2016 Minute Order. At the sentencing hearing on January 4, 2016, the
    Court reviewed the 
    18 U.S.C. § 3553
     factors and imposed a below-Guidelines sentence of 30
    months of incarceration followed by five years of supervised release. See Sentencing Hr’g at
    176–78.
    On January 2, 2018, Chammas filed a § 2255 motion seeking relief based on seven
    instances of alleged ineffective assistance of counsel. See Mot. On May 30, 2018, he filed a
    supplement to his § 2255 motion which asserts an additional claim of ineffective assistance. See
    Suppl. Mot., ECF No. 39.
    II.   Analysis
    A. Recusal or reassignment
    Before reaching the substance of Chammas’s § 2255 motion, the Court will address his
    request that the motion be reassigned to a different judge in order to “avoid any and all potential
    biases that may exist” because of the Court’s alleged familiarity with defense counsel. Mot.
    ¶ 93. “Recusal is required under 
    28 U.S.C. § 455
     if ‘a reasonable and informed observer would
    question the judge’s impartiality,’” United States v. Williamson, 
    903 F.3d 124
    , 137 (D.C. Cir.
    2018) (quoting SEC v. Loving Spirit Found. Inc., 392. F.3d 486, 493 (D.C. Cir. 2004)), and
    “under 
    28 U.S.C. § 144
     if a judge ‘has a personal bias or prejudice’ either against or in favor of a
    party,” 
    id.
     (quoting § 144). Chammas alleges no credible basis for recusal under either section.
    First, he suggests the Court demonstrated favoritism by commenting at sentencing that defense
    4
    counsel had “done a terrific job.” Mot. ¶ 93 (citing Sentencing Hr’g at 177:13). Chammas offers
    no authority for the proposition that complimenting an attorney for high-quality advocacy
    provides a basis for recusal in a future proceeding. And in any event, Chammas ignores the rest
    of the Court’s comment, which was to thank counsel for both parties and say the “submissions
    have been excellent” on both sides. Sentencing Hr’g at 177:15–16. Second, he suggests that the
    Court could be biased because of defense counsel’s purported friendship with the Court’s wife.
    Mot. ¶ 93. 2 But even if the two are friends, no reasonable observer would conclude that such
    friendship alone overcomes the strong presumption of impartiality afforded to the Court. The
    Court will therefore deny Chammas’s request for reassignment of his § 2255 motion.
    B. Section 2255 relief
    Moving to the merits, a prisoner serving a federal sentence may petition the court to
    vacate his sentence if he believes that it “was imposed in violation of the Constitution or laws of
    the United States . . . or is otherwise subject to collateral attack[.]” 
    28 U.S.C. § 2255
    (a). The
    petitioner bears the burden of proof and must demonstrate by a preponderance of the evidence
    his right to relief. United States v. Simpson, 
    475 F.2d 934
    , 935 (D.C. Cir. 1973) (per curiam).
    Chammas seeks to vacate his conviction and sentence on the basis that he received
    ineffective assistance of counsel in violation of the Sixth Amendment. “The Sixth Amendment
    right to counsel ‘is the right to the effective assistance of counsel.’” Buck v. Davis, 
    137 S. Ct. 759
    , 775 (2017) (quoting Strickland v. Washington, 
    466 U.S. 668
    , 686 (1984)). To prevail,
    Chammas bears the burden of showing first “that counsel’s performance was deficient” and
    2
    In fact, defense counsel and the Court’s wife were colleagues in the U.S. Attorney’s
    Office for the District of Columbia over a decade ago. They remain professional acquaintances
    but are not close personal friends.
    5
    second “that the deficient performance prejudiced the defense.” Strickland, 
    466 U.S. at 687
    .
    “The two-part Strickland v. Washington test applies to challenges to guilty pleas based on
    ineffective assistance of counsel.” Hill v. Lockhart, 
    474 U.S. 52
    , 58 (1985).
    Under the first prong of the Strickland test, Chammas must prove that counsel’s
    performance “fell below an objective standard of reasonableness.” Strickland, 
    466 U.S. at
    687–
    88. This “sets a high bar,” Buck, 137 S. Ct. at 775: “Judicial scrutiny of counsel’s performance
    must be highly deferential” in light of the “strong presumption that counsel’s conduct falls within
    the wide range of reasonable professional assistance,” Strickland, 
    466 U.S. at 689
    . And although
    “even an isolated error” can support an ineffective-assistance claim if it is “sufficiently
    egregious,” Murray v. Carrier, 
    477 U.S. 478
    , 496 (1986), “it is difficult to establish ineffective
    assistance when counsel’s overall performance indicates active and capable advocacy,”
    Harrington v. Richter, 
    562 U.S. 86
    , 111 (2011).
    Under the second prong of the Strickland test, Chammas must demonstrate a “reasonable
    probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
    been different.” Strickland, 
    466 U.S. at 694
    . For Chammas’s claims regarding the plea-
    agreement phase, prejudice means “a reasonable probability that, but for counsel’s errors, he
    would not have pleaded guilty and would have insisted on going to trial.” Hill, 
    474 U.S. at
    58–
    59. And for Chammas’s claims regarding the sentencing phase, prejudice means a reasonable
    likelihood that but for counsel’s errors, he “would have received a lower sentence.” United
    States v. Wilkins, 734 F. App’x 1, 2 (D.C. Cir. 2018) (citing Glover v. United States, 
    531 U.S. 198
    , 203–04 (2001)).
    Chammas asserts eight independent grounds for his ineffective-assistance claim.
    Because the record discloses no Sixth Amendment violation on any of these grounds, the Court
    6
    will deny Chammas’s § 2255 petition, except as to the claim discussed in Subsection 6 below.
    And because, as will follow, “the motion and the files and records of the case conclusively show
    that [Chammas] is entitled to no relief,” the Court will also deny Chammas’s request for an
    evidentiary hearing. 
    28 U.S.C. § 2255
    (b); United States v. Gooch, 
    842 F.3d 1274
    , 1280 n.3
    (D.C. Cir. 2016).
    1. Failure to investigate prior to Chammas’s plea
    First, Chammas claims that counsel performed deficiently because he did not interview
    potential witnesses directly, identify potential alibi witnesses, or investigate the anonymous
    tipster and uncover potential impeachment information about them. Mot. ¶¶ 9–10, 24–26.
    “Where the case involves a failure to investigate, the ‘particular decision not to
    investigate must be directly assessed for reasonableness in all of the circumstances, applying a
    heavy measure of deference to counsel’s judgments.’” United States v. McDade, 
    699 F.3d 499
    ,
    506 (D.C. Cir. 2012) (quoting Strickland, 
    466 U.S. at 691
    ). And where, as here, “the record does
    not explicitly disclose . . . counsel’s actual strategy or lack thereof . . . , the presumption [of
    adequate performance] may only be rebutted through a showing that no sound strategy . . . could
    have supported the conduct.” United States v. Abney, 
    812 F.3d 1079
    , 1087 (D.C. Cir. 2016)
    (citation and internal quotation marks omitted) (first two alterations in original). Chammas fails
    to show that no sound strategy could have supported his counsel’s decision to forego these lines
    of investigation. As such, the Court concludes that counsel’s conduct was not “outside the wide
    range of professionally competent assistance” under the circumstances in this case. Strickland,
    
    466 U.S. at 690
    .
    The defense received voluminous discovery materials from the government months
    before Chammas entered his plea in October 2016. See July 15, 2016 Discovery Letter at 23–24.
    7
    These materials included the anonymous letter, the results of the search warrant, and memoranda
    of interviews with numerous witnesses, the victim, and Chammas himself. See Index to Gov’t
    Prod., July 15, 2016 at 25–30. Chammas voluntarily met with investigators on February 13 and
    14, 2013. See Chammas MOI Feb. 13, 2013 at 31–33; Chammas MOI, Feb. 14, 2013 at 34–37.
    During those interviews, Chammas admitted having sexual contact with the victim during
    massages, admitted ejaculating during those massages, and admitted that his penis came into
    contact with the victim’s face on at least one occasion. 
    Id.
     While Chammas speculates that
    counsel should have ascertained certain background information that he details in his motion, see
    Mot. ¶¶ 11–25, he reported similar information about workplace problems to the investigators
    during these interviews. In addition, Chammas provided a DNA sample for forensic testing,
    which corroborated the victim’s account of sexual contact. See Affidavit at 10 ¶¶ 26–28.
    Counsel received the results of that DNA testing on September 10, 2014. See Sept. 10, 2014
    Gov’t Prod., ECF No. 48, at 46. Given these circumstances, counsel likely made the reasonable
    strategic decision that investigation into alibi witnesses or the anonymous tipster would not have
    proved fruitful.
    Furthermore, even if Chammas could show that counsel was deficient, he must still
    demonstrate prejudice. To do so, Chammas “must make a ‘comprehensive showing as to what
    [information] the investigation would have produced,’ and how this information ‘would have
    produced a different result.’” United States v. Bertram, 
    209 F. Supp. 3d 243
    , 256 (D.D.C. 2016)
    (alteration in original) (quoting United States v. Askew, 
    88 F.3d 1065
    , 1073 (D.C. Cir. 1996)).
    Again, although Chammas speculates what evidence counsel could have developed, Mot. ¶¶ 11–
    25, counsel already had access to much of that evidence. And critically, Chammas does not
    explain how this evidence would have produced a different result. This does not seem like a case
    8
    in which an alibi witness or impeached tipster would have made a difference; Chammas
    voluntarily admitted having sexual contact with the victim and provided DNA evidence that
    verified her account. Accordingly, the Court concludes that there is no reasonable probability
    that had counsel conducted further investigation, Chammas would not have pleaded guilty and
    insisted on going to trial. See Hill, 
    474 U.S. at
    58–59.
    Because Chammas demonstrates neither deficient performance nor prejudice, the Court
    denies the § 2255 motion with respect to the failure to investigate claim.
    2. Failure to keep abreast of the investigation status
    Next, Chammas argues that counsel performed deficiently by failing to stay informed of
    the status of the criminal investigation. Chammas’s complaint here largely turns on his surprise
    when the FBI showed up at his home to arrest him ten days after he returned from more than a
    year of travel overseas. Mot. ¶¶ 29–32. He claims that he traveled overseas only based on
    counsel’s assurances that there was no “pending case” against him and that his overseas travel is
    what led the FBI to arrest him. Id. ¶¶ 28–29, 32–33. The government confirms that “it was
    defendant’s failure to return as planned with his wife from their trip to Lebanon . . . and his
    decision to take an unplanned trip to Syria, where he remained for over a year, that resulted in
    the circumstances of his arrest.” Opp’n at 31 n.10.
    The government argues that Chammas is barred from raising alleged deficiencies such as
    this “failure to keep abreast” because it has no bearing on the advice his counsel provided related
    to the plea. Id. at 31. The Court agrees. When “a criminal defendant has solemnly admitted in
    open court that he is in fact guilty of the offense with which he is charged, he may not thereafter
    raise independent claims relating to the deprivation of constitutional rights that occurred prior to
    the entry of the guilty plea.” Tollett v. Henderson, 
    411 U.S. 258
    , 267 (1973). This is not to say
    9
    that a defendant who pleaded guilty cannot raise later any Sixth Amendment claims; rather, he
    “‘may only attack the voluntary and intelligent character of the guilty plea’ ‘through proof that
    the advice received from counsel was not within the range of competence demanded of attorneys
    in criminal cases.’” United States v. Graves, 561 F. App’x 1, 3 (D.C. Cir. 2014) (first quoting
    Tollett, 
    411 U.S. at 267
    ; then quoting Blackledge v. Perry, 
    417 U.S. 21
    , 30 (1974)). Chammas
    fails to explain how counsel’s alleged failure to warn him about the possibility of arrest rendered
    his plea not knowing or voluntary. Accordingly, the Court will deny his § 2255 motion with
    respect to this claim as well.
    3. Misleading advice related to potential prosecution of Chammas’s wife
    Third, Chammas asserts that he was “misled by his counsel regarding the threatened
    prosecution of his wife.” Mot. ¶ 39. He claims that counsel first learned in May 2016 that the
    government did not intend to prosecute his wife for alleged forced-labor violations stemming
    from working conditions at the DCM residence. Id. Counsel, Chammas says, did not inform
    him of this until mid-September 2016. Id. ¶ 37. Chammas implies that had he known earlier that
    his wife was no longer a target of the forced-labor investigation, he would not have pleaded
    guilty.
    This argument is unavailing. Regardless of whether counsel delayed in apprising
    Chammas of the government’s decision to drop the forced-labor investigation into his wife—and
    nothing in the record suggests he did—Chammas was clearly aware of the decision when he
    chose to accept the plea agreement. As he explains in his motion, counsel informed him in mid-
    September 2016 that the government did not intend to pursue an investigation or prosecution of
    his wife. Id. ¶¶ 37–38. And yet, he still pleaded guilty on October 12, 2016. See Oct. 12, 2016
    Minute Entry. Accordingly, without reaching whether counsel performed deficiently, there is no
    10
    basis for the Court to conclude that Chammas was prejudiced by the alleged delay between the
    government’s decision to drop the charges against his wife and when Chammas learned that
    information. See Bertram, 209 F. Supp. 3d at 257 (concluding that defendant failed to show
    prejudice for counsel’s alleged failure to investigate where “the evidence defendant now says
    would have altered the outcome was information that was well known to him at the time he
    entered his plea”).
    4. Failure to advise Chammas of the collateral consequences of the plea
    Fourth, Chammas argues that counsel performed deficiently because he failed to warn
    Chammas of the “collateral consequences” of accepting the plea. Mot. ¶ 41 (citing Padilla v.
    Kentucky, 
    559 U.S. 356
    , 366 (2010)). To support this claim, he cites to the American Bar
    Association (“ABA”) standards of practice, which explain that defense counsel should advise the
    client of the “collateral consequences that may arise from the charge, plea or conviction.” Id.
    ¶ 41 (quoting ABA Standard 4-5.4). Chammas says he was in the dark about two collateral
    consequences of his guilty plea: negative media attention and adverse financial consequences,
    including losing his credit cards and home and auto insurance, and being denied a home equity
    loan. Id. ¶¶ 43–44.
    The Court doubts that these consequences—which are to some extent self-evident—are
    of the kind contemplated by either the ABA Standards or Padilla. As the government suggests,
    the Sixth Amendment duty to warn likely applies only to severe legal, not personal,
    consequences. Rather than decide whether counsel performed deficiently in this respect,
    however, the Court will follow the approach taken by the Supreme Court in Hill v. Lockhart, 
    474 U.S. 52
     (1985). In that case, the petitioner argued that his counsel performed deficiently by
    giving him incorrect advice about when he would be eligible for parole. 
    Id. at 60
    . The Supreme
    11
    Court found “it unnecessary to determine whether there may be circumstances under which
    erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective”
    because the petitioner “did not allege . . . that, had counsel correctly informed him about his
    parole eligibility date, he would have pleaded not guilty and insisted on going to trial.” 
    Id.
     Here,
    Chammas asserts in conclusory terms that he “suffered harm as a result” of counsel’s purported
    failure to warn. Mot. ¶ 45. But even if counsel did not apprise him of the financial and
    publicity-related consequences of accepting his plea, Chammas’s assertion comes nowhere close
    to proving by a preponderance of the evidence that, armed with this knowledge, he would not
    have pleaded guilty and would have instead insisted on proceeding to trial. Accordingly, the
    Court will deny his § 2255 motion on this ground as well.
    5. Likelihood of probation
    Chammas also argues that counsel performed deficiently by assuring him that “a very
    likely outcome at sentencing would be probation.” Mot. ¶ 87. Counsel did not tell him,
    Chammas says, that “because the applicable sentencing guideline range placed [him] in Zone D
    of the Sentencing Table, [he] was ineligible for probation.” Id. ¶ 89. He asserts that “these
    assurances are a major reason why the plea deal was accepted by [him] in the first place.” Id.
    ¶ 87; see id. ¶ 91 (“But for this false counseling, Movant would not have accepted the plea deal
    with the prosecution.”).
    Chammas’s representations are directly contradicted by the contents of the plea
    agreement and his own statements under oath at the Rule 11 colloquy. In the plea agreement, the
    parties agreed that because the Guidelines range for Chammas’s conduct would exceed the
    maximum statutory penalty for abusive sexual contact, a Guidelines-compliant sentence would
    be 36 months. See Plea Agreement at 40 n.1. The parties also agreed that Chammas could seek
    12
    a sentence below 36 months based on the 
    18 U.S.C. § 3553
    (a) factors but that he would not ask
    for a sentence of less than one year and a day incarceration. 
    Id. at 41
    . Chammas’s counsel
    confirmed at the plea hearing that Chammas “has agreed that, at sentencing, he will not
    affirmatively ask for a sentence less than one year and a day, which falls within the statutory
    period prescribed by the Court.” Plea Hr’g at 140:6–13. Finally, at the plea hearing, Chammas
    swore to the Court that no one had promised him what sentence the Court would impose. 
    Id.
     at
    141:1–3. “‘[T]he representations of the defendant [at a plea hearing] as well as any findings
    made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral
    proceeding’ and the defendant’s ‘declarations in open court carry a strong presumption of
    verity.’” United States v. Farley, 
    72 F.3d 158
    , 163 (D.C. Cir. 1995) (alterations in original)
    (quoting Blackledge, 431 U.S. at 73–74); see also United States v. Taylor, 
    254 F. Supp. 3d 145
    ,
    157 (D.D.C. 2017) (“The defendant’s own statements at the time of his plea about fully
    understanding the plea agreement and its consequences, as well as the findings of the sentencing
    judge, far outweigh the defendant’s bare assertions now to the contrary.”). Thus, based on the
    language of the plea agreement and his confirmation at the plea hearing, Chammas
    unquestionably knew that he could not request a probationary sentence or a sentence of less than
    one year and one day incarceration. With that knowledge, Chammas could hardly have been
    surprised that the Court sentenced him within the range contemplated by his plea agreement.
    Moreover, when determining whether there is a reasonable probability that the defendant
    would have gone to trial for purposes of prejudice, a court considers “not only the count to which
    the defendant pled guilty, but also the other counts he would have faced had he gone to trial.” In
    re Sealed Case, 
    488 F.3d 1011
    , 1017 (D.C. Cir. 2007) (citing United States v. McCoy, 
    215 F.3d 102
    , 106–07 (D.C. Cir. 2000)). Had Chammas refused a plea and proceeded to trial, he could
    13
    have been charged with aggravated sexual abuse in violation of 
    18 U.S.C. § 2241
    (a)(1), exposing
    him to a term of years up to life imprisonment and a Guidelines sentence of at least 108 to 135
    months of incarceration. The severity of Chammas’s potential trial exposure leads the Court to
    conclude that, contrary to his bare representations in the § 2255 motion, he almost certainly
    would have pleaded to the lesser charge regardless of what defense counsel may have advised
    him about the Court’s likely sentence.
    6. Failure to inform Chammas of a previous plea offer
    In the supplement to his § 2255 motion, Chammas argues that his counsel performed
    deficiently by rejecting a previous plea offer regarding the government’s forced-labor
    investigation without first informing Chammas of the offer. Suppl. Mot. at 1. To support this
    claim, Chammas relies on a December 8, 2014 notation in counsel’s files which reads, “Meeting
    between counsel for L Chammas and US DOJ / DOS rejecting forced labor plea offer.” Id. at 5.
    Chammas contends that had counsel communicated the offer to him, he “would have considered
    and may have accepted this prior plea offer.” Id.
    The documents attached to the government’s opposition to Chammas’s supplemental
    motion illuminate the history of plea negotiations in the case. They show that in October 2013,
    the government extended an offer to Mr. Chammas to plead guilty to one count of abusive sexual
    contact in violation of 
    18 U.S.C. § 2244
    (b) (aggravated sexual contact in other circumstances),
    which carries a maximum sentence of two years imprisonment. See Oct. 22, 2013 Plea Letter at
    66; Oct. 22, 2013 Plea Offer at 67–71. 3 According to handwritten notes of a July 22, 2014
    3
    In this section, the memorandum opinion cites to the documents attached to the
    government’s supplemental response, see ECF No. 48, by title and Bates stamp number.
    14
    meeting with prosecutors attended by Chammas and his counsel, Chammas rejected that offer.
    See July 22, 2014 Notes at 16 (stating “pre-indictment offer rejected”).
    At that July 22, 2014 meeting, the parties apparently discussed an alternative resolution: a
    plea to participating in forced labor, with “no sex charge, no registration.” See 
    id. at 18
    . That
    idea was formalized some six weeks later in a September 5, 2014 plea letter to Chammas’s
    counsel. The letter proposes a plea to one count of forced labor in violation of 
    18 U.S.C. § 1589
    (a), which carries a maximum 20-year sentence if the offense involved an attempt to
    commit aggravated sexual abuse. See Sept. 5, 2014 Plea Offer at 26. The proposed plea
    agreement calculated the base offense level under the Sentencing Guidelines as “at least 30.” 
    Id. at 28
    . In a separate cover letter, the government explained that the forced-labor plea offer was
    contingent upon Ms. Chammas entering a non-prosecution agreement with the government and
    agreeing not to accept any future employment requiring a classified security clearance. Sept. 4,
    2014 Letter at 37.
    The documents further reveal that Chammas and his wife met with their respective
    attorneys to discuss the conditional forced-labor plea offer, see Sept. 12, 2014 Notes at 52–53,
    and that Chammas later informed his counsel that Ms. Chammas “said NO” to the non-
    prosecution agreement, see Sept. 30, 2014 Notes at 64. As of the end of September 2014, then,
    Mr. Chammas’s forced-labor plea offer appears to have been off the table because Ms. Chammas
    apparently was unwilling to forego her security clearance.
    As noted above, an entry appears in defense counsel’s records indicating a December 8,
    2014 meeting between Chammas’s counsel and the government “rejecting the forced labor plea
    offer.” The government suggests that the notation refers to September 5, 2014 offer described
    above. That makes some sense: There are no other formal forced-labor offers reflected in the
    15
    record before the Court and correspondence between Chammas and his counsel just prior to the
    December 8th meeting could be read to reflect a strategy of returning the plea discussions to the
    sex-related charge. See Dec. 4, 2014 Email from L. Chammas at 15 (noting counsel’s plans to
    ask the government to “drop the labor charge and discuss the ‘other’ change”). If the
    government is correct that the December 8th entry refers to the September 5th plea offer, then it
    is beyond doubt that Mr. Chammas was fully informed of that offer and counsel’s performance
    was not deficient. It would be equally clear that Chammas was not prejudiced, even if for some
    reason he was unaware of the offer. After all, the September 5th forced-labor offer carried much
    more exposure—up to 20 years in prison—than the one he ultimately accepted. Chammas
    himself does not unambiguously assert that would have accepted the more punitive offer.
    Still, there remains at least some uncertainty in the Court’s mind as to whether there
    could have been an intervening forced-labor plea offer between late September 2014—when the
    conditional offer expired because Ms. Chammas did not accept the non-prosecution agreement—
    and the apparent rejection of the offer at the December 8th meeting. To resolve that lingering
    uncertainty, the Court will defer a definitive ruling on this issue and direct the government to
    submit an affidavit from a knowledgeable member of the prosecution team attesting to whether a
    later offer was extended and, if so, the contents of the offer.
    7. Failures relating to Chammas’s medical conditions
    Chammas next argues that counsel provided ineffective representation at sentencing by
    failing to advocate for a lower sentence or a favorable prison placement due to Chammas’s
    medical conditions. He alleges three specific deficiencies.
    First, Chammas complains that counsel failed to request a downward departure pursuant
    to U.S.S.G. § 5H1.4 based on Chammas’s poor health. Although counsel mentioned Chammas’s
    16
    physical and medical needs, Chammas says he “did not outline [them] with any specificity” or
    “request that the Court consider a downward departure because of them.” Mot. ¶ 61.
    Under the performance prong of Strickland, “[w]here sentencing benefits are available
    under existing law, [the D.C. Circuit] has concluded that counsel is ineffective when he fails to
    advocate on his client’s behalf at sentencing.” Abney, 812 F.3d at 1089. This, however, is not a
    case where counsel failed to advocate on behalf of Chammas at sentencing. Although counsel
    did not request a departure under § 5H1.4, he identified Chammas’s medical issues in his
    sentencing memorandum as justification for a downward variance from the Guidelines sentence
    under 
    18 U.S.C. § 3553
    (a). Specifically, counsel detailed Chammas’s history of “serious health
    conditions,” including contracting hepatitis in the 1980s, surviving liver cancer, having a liver
    transplant in 2008, and subsequently suffering from high blood pressure which causes heart
    palpitations and fainting spells. Def.’s Sentencing Mem. at 84–85. And, in advocating for a
    below-Guidelines sentence under § 3553(a), counsel urged the Court to “carefully consider Mr.
    Chammas’s age and health in fashioning a sentence. Given his liver transplant, heart and hip
    conditions, and the array of medications and treatment he requires, a lengthy period of
    incarceration is both unnecessarily harsh and expensive for the federal government.” Id. at 93.
    Counsel concluded by highlighting a recent report by the Department of Justice Office of the
    Inspector General that criticized the Bureau of Prisons for its handling of older inmates like
    Chammas. Id.
    Counsel raised Chammas’s health issues before the Court on other occasions as well,
    including at the plea hearing and in his post-plea memorandum requesting release pending
    sentencing. See Plea Hr’g Tr. at 146:22–23 (pointing to Chammas’s “very significant medical
    conditions, including a liver transplant,” as a reason why he should not be detained pending
    17
    sentencing); Def.’s Mem. in Supp. of Release Pending Sentencing at 57 (explaining that
    “Chammas has a number of serious medical conditions, including a liver transplant . . . and a
    compromised immune system,” “need of a hip replacement,” and “chronic heart condition”).
    The Court was well aware of “the medical issues raised by the defense” and specifically
    asked the government to address them at the sentencing hearing. Sentencing Hr’g Tr. at 169:3–
    5. And, when it was time for defense counsel to speak, he emphasized that “any sentence of jail
    that’s imposed by the Court, as the Court has already mentioned, will pose challenges given his
    heart, liver, and hip issues.” Id. at 175:8–10.
    In short, the record is clear that counsel did advocate for a variance based on Chammas’s
    detailed medical history. Moreover, the Court “recognize[d] that [Chammas’s] age and health
    conditions pose some challenges,” which it considered in imposing a below-Guidelines sentence.
    Id. at 177:17–18. Thus, the record is also clear that even if counsel had performed deficiently,
    Chammas has not shown a reasonable probability of a lower sentence.
    Second, Chammas argues that counsel performed deficiently by failing to object when
    the prosecution described Chammas “as being in peak physical fitness” and noted that he was
    “on the way to the gym at the time of his arrest,” and that his daughter had described him as “full
    of energy.” Mot. ¶ 57. This argument finds no support in the record. The prosecutor did not
    describe Chammas as being in peak physical fitness; in fact, she did not dispute Chammas’s
    medical history. Sentencing Hr’g at 169:6–11. And, as both the prosecution and defense pointed
    out, Chammas’s daughter did describe him as “full of energy.” Dec. 1, 2016 I. Chammas Letter
    to the Court at 103; Sentencing Hr’g at 169:15; Def.’s Sentencing Mem. at 89. Accordingly,
    counsel did not perform deficiently in this regard because he had no basis on which to object to
    the prosecutor’s statements.
    18
    And third, Chammas suggests that counsel failed to research the best Bureau of Prisons
    (“BOP”) facility to recommend to the Court at sentencing. Mot. ¶ 62. This claim easily fails on
    both prongs. Counsel reasonably deferred to Chammas’s cardiologist regarding the BOP facility
    that could best care for Chammas’s unique medical issues. Indeed, Chammas concedes that his
    cardiologist contacted BOP “to relay [Chammas’s] conditions and needs.” Id. Nor can he show
    prejudice: Chammas also concedes that after his doctor contacted BOP, he was placed in a
    facility that is “well-known as having one of the best medical facilities of all federal prisons in
    the nation.” Id. ¶ 64.
    8. Failure to object to offense level calculation
    Chammas contends that counsel failed to object to what he views as a miscalculation of
    the offense level under the Guidelines. Mot. ¶ 80. He argues that the final Presentence Report
    improperly added four additional points to his offense level based “on the faulty presumption
    that the ‘offense involved conduct described in 
    18 U.S.C. § 2241
    (a).’” 
    Id. ¶ 83
    . However,
    Chammas overlooks that this enhancement was part of the plea agreement. See Plea Agreement
    at 39. As such, counsel was not objectively unreasonable in not objecting to it. Moreover, as the
    parties agreed and as Chammas admitted in the Statement of Offense, Chammas did use force on
    at least five occasions when he tried to force his penis into the victim’s mouth even though she
    turned her head and pressed her mouth closed. The offense level enhancement under
    § 2A3.4(c)(1) based on conduct described in 
    18 U.S.C. § 2251
    (a) was correct.
    C. Discovery requests
    Finally, Chammas claims that his former counsel has not honored his request to provide
    his entire case file. He seeks an order requiring disclosure of that file, as well as all discovery
    materials in the government’s possession and a transcript of the grand jury proceedings. Mot.
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    ¶¶ 94–95; Suppl. Mot. at 3. More specifically, he seeks all communications between his former
    counsel and government counsel and “notes, memos, and interviews” conducted by State
    Department agents related to any pending claim. Suppl. Mot. at 3. And he seeks grand jury
    transcripts “to assess additional inconsistencies between witness statements.” 
    Id.
    The Court may, in its discretion, grant a § 2255 petitioner discovery upon a showing of
    “good cause.” Bracy v. Gramley, 
    520 U.S. 899
    , 904 (1997) (quoting Rule 6(a) Governing
    § 2255 Cases). Chammas fails to make the required showing. As discussed above, with the
    exception of the plea disclosure issue, Chammas’s lack of entitlement to relief is abundantly
    clear based on the law and the existing record. Chammas has not explained how production of
    the requested records would alter that conclusion. Because he fails to demonstrate good cause,
    the Court will deny Chammas’s request for leave to conduct discovery.
    III. Conclusion
    For the foregoing reasons, the Court will deny Defendant’s request for reassignment and
    his initial § 2255 motion to vacate his conviction and sentence. The Court will defer ruling on
    Defendant’s supplemental § 2255 motion pending review of an affidavit from the government.
    A separate Order accompanies this Memorandum Opinion.
    CHRISTOPHER R. COOPER
    United States District Judge
    Date: December 19, 2018
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