United States v. Diaz ( 2009 )

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umrm) sTATEs DISTRICT coURT F"_\'_:_[)
FoR THE DISTRICT or coLUMBIA
MAY l 5 1997,
UNITED srA'rEs or AMEmcA cu~:ax u.s. o¢srmm count
DlSTRlCT OF COLUMBlA
v.
MICHAEL l)rAz A/K/A KING, C“"“' A°“°“ N°~ 92'°331'°1 (JHG)_.:
Defendant.
E N RDER
Presently before the Court is the defendant’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence ("2255 Motion”), which was filed on April 24,
1997. For the reasons stated below, the motion will be denied. A hearing is unnecessary
to resolve the instant motion, see Unz'ted States v. Pollard, 959 F.Zd 1011, 1031 (D.C.
Cir.), cert. deniea', 506 U.S. 915 (1992), and "the motion and the files and the records of
the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
I. Background
Following an undercover operation, the defendant and co-defendant Louis Pol
were arrested and charged in a IG-count indictment alleging multiple violations of Title
21, U.S. Code offenses and one violation of 18 U.S.C. § 2. “The total amount of the
drugs recovered, as a result of the offense behavior, [was] 326.66 grams of cocaine base."
Presentence Investigation Report ("PSR"), at 7, 1[11.
Pursuant to his plea, the defendant was convicted on October 28, 1992, of Count
One, a violation of 21 U.S.C. § 846, conspiracy to distribute fifty grams or more of
l
cocaine base. Because the defendant had two prior convictions involving a controlled
substance, he was subject to a mandatory tenn of life imprisonment. The plea agreement
stated: "Mr. Diaz understands that pursuant to Title 21, U.S.C. § 841(a)(1) and §
84l(b)(l)(A)(iii) this charge carries a mandatory mininrurn of life in prison." Plea
Agreement 112 (filed October 28, 1992).
Prior to accepting the defendant’s plea, this Court conducted an inquiry to ensure
his plea was knowing and voluntary ln particular, the Court made certain that the
defendant understood that, unless he obtained the benefit of a motion for a departure
based upon substantial assistance (which the government did not promise to give him), he
would be sentenced to life imprisonment.
immediately prior to m``al, the Court was advised by the defendant’s counsel that a
plea agreement had been reached:
The Court: All xight. Mr. Bond. You are rising on behalf of Mr. Diaz?
Mr. Bond: l am, your Honor. l believe we are prepared to dispose the
matter at this point.
The Court: In what manner are your prepared to dispose of the case?
Ivlr. Bond: It’s been reduced to an agreement --
The Court: A written agreement?
Mr. Bond: Yes. Basically, Mr. Diaz and, as Iunderstand it, Mr. Pol are
prepared to plead guilty to Count one of the indictrnent, which is conspiracy
to distribute in excess of 50 grams of crack cocaine. In exchange for that,
the United States is agreeing to dismiss the other counts pending against
them. They are reserving all the other things that they can do, including in
the case of Mr. Diaz, enhancement papers, stepback--that is, they are not
2
going to be agreeing to release him pending sentencing-~and they are also
reserving a1locution.
Transcript of Plea Proceedings ("TR”) at 33-34 (0ct. 28, 1992).
Ai’ter the defendant was placed under oath, the Court addressed him directly about
the plea agreement and ascertained that he understood he would be pleading guilty to a
tenn of life imprisonment unless he obtained a motion from the government due to
substantial assistance:
The Court. Now, Mr. Diaz, 1 ask that you listen very carefully as your
attorney, Mr. Ferris Bond, explains to me what he believes is what you are
agreeing to plead guilty to and what is the benefit and what are the potential
penalties to you. And, in tum, l will subsequently be asking you if this is
what you have discussed with your attorneys and do you believe you are
well informed about this. All right Do you understand rne?
Defendant Diaz: Yes, ma'am.
The Court: All right If there comes a time when you don’t sir, we’re going
to make it very clear that you do understand me. Mr. Bond.
Mr. Bond: Yes ma’arn.
The Court: Tel1 me what you believe Mr. Diaz is pleading guilty to. And
you've already started to address that.
Mr. Bond: Your I-Ionor, Mr. Diaz is pleading guilty to count one, which is
a violation of 21 United States Code, Section 846. He‘s pleading guilty to
conspiring to distribute in excess of 50 grams of crack cocaine ~
The Court: According to the prepared written matter, it says that the
charge carries a mandatory minimum of life in prison.
Mr. Bond: Judge, I don‘t believe the statute requires a mandatory
of life imprisonment, but based upon Mr. Diaz’s prior record, 1 believe
the sentencing guidelines give the Court no discretion unless the United
States files a 5Kl letter or a subsequent Rule 35 motion.‘
The Court: But that is a mandatory minimum of life imprisonment
without parole or probation or any opportunity to suspend the execution
of the sentence or any part of it. Would that be correct?
Mr. Bond: Yes, Ma'am. And that's what I'ye advised Mr. Diaz.
The Court: What other promises, if any, has the government made in
connection with this matter other than it would be dismissing the multiple
other counts of this indictment? Does that include the forfeiture Count, Ms.
Corken?
Ms. Corken: Yes, Your Honor.
The Court: At the time of sentence.
Mr. Bond: Your Honor, well, one of the things that they have agreed to do
is to let Mr. Pol plead to a count where he's not subjected to life
imprisonment, The other thing they have agreed to do is allow Mr. Diaz to
cooperate with the United States and attempt to provide information to them
substantial enough to convince a committee in the United States Attorney's
Office to decide to make a motion to depart downward at his sentencing
under 5Kl of the sentencing guidelines.
The Court: Am 1 correct that there are no promises in that regard by the
government?
Ms. Corken: That's correct, your Honor.
Mr. Bond: The promise they have made him is that they will allow him the
opportunity to cooperate.
TR at 34-36 (emphasis added).
The Court then addressed the defendant
' As explained below, it is the statute, not the Guidelines, that actually limited the Court’s
discretion in this matter. However, counsel’s misstatement was harmless in that the source of the
legal constraint did not affect the advice rendered to his client: the bottom line remained the same.
4
The Court: All Right. Let me start the proceeding Mr. Diaz, you have
been sworn to tell the truth, sir. And as l indicated a few moments ago, if
you don't understand the questions that I'm going to ask you and the
statements that l may make, it is absolutely important that you stop me and
that you have it made clear enough to you that you understand what you are
doing This is a very important time in your life, as I hope that you
appreciate, and I want it to be very clear to you exactly what you are doing;
what benefits, if any, you are deriving from this,`` but also what possible
penalties may be imposed upon you. If you don't understand, we'll stop. I'll
take the time to make certain that you do fully understand. All right?
Defendant Diaz: Okay, Ma'am.
'I``R at 39~40.
During the proceeding, as the Court explained to the defendant that by pleading
guilty he would forgo certain constitutional n'ghts, such as the right to appeal his
conviction, the defendant requested an opportunity to confer with his counsel:
The Court: Do you further understand, sir, that if you had gone to trial and
if you had been found guilty of any or all of these charges, you then would
have had a right to go to the Court of Appeals in your effort to change that
decision. And if you could not have afforded an attorney at the trial level,
if you could not have afforded an attomey at the appellate level, if you
could not have afforded a full record of everything that has been said in any
courtroom in connection with you through this entire criminal justice
proceeding including the trial, all of that would have been paid for for you
through the criminal justice system so that you would have your full right to
representation and to a record before any court necessary. But, obviously,
if 1 accept your plea of guilty, you are effectively giving up your right to go
to the Court of Appeals. Your only right would be if I gave you an illegal
sentence And l assure, I don’t intend to give you an illegal sentence.’
Defendant Diaz: What’s -- excuse me.
2 At sentencing, the Court also advised the defendant of his right to appeal the sentence
imposed. Transcript of Sentencing Hearing at 12 (Feb. 9, l993).
5
The Court: Do you understand that"
Defendant Diaz: No.
The Court: You’re giving up your right to go to the Court of Appeals. Do
you understand that? If you had been found guilty, sir, you would have had
a right to have this reviewed by the Court of Appeals. 'l``hey would have
looked at it and they would have said were there any mistakes done here,
any errors done here, should we change this decision or should we let this
decision stand. Well, if there is no trial, the Court of Appeals does not have
that to review. So you are giving up your right to go to the Court of
Appeals. Do you understand that?
Defendant Diaz: Yes.
The Court: Are you sure?
Defendant Diaz: Uh-Uh.
The Court: Well, what don't you understand about it, sir?
Defendant Diaz: l want to ask my counsel something.
(Defendant Diaz and counsel consult)
Mr. Bond: Judge, l know this kind of unusual, but could we have a brief
recess so I can talk to Mr. Diaz?
The Court: Well, obviously. But I really -- if we‘re not going to plea, that's
fine with me. Certainly Mr. Diaz is not under any compulsion by the court
to plea. I don’t care if he pleads or not.
TR at 45-46.
Twenty minutes later, the Court reconvened and addressed Mr. Diaz:
The Court: Mr. Diaz, you remain under oath. And as you will recall,
before we took this recess at your counsel's request, and your request, l was
asking you some questions. What do you plan to do? Do you wish to
withdraw this beginning of the plea that you were making to the Court, or
do you wish to give a plea to the Court?
6
Defendant Diaz: l wish to give a plea.
The Court: And you‘re certain you've had enough time to talk to your
lawyers about this.
Defendant Diaz: Yes, l did, ma'am.
The Court: Now when we stopped, I was asking you some questions
concerning did you understand that if you didn't have a trial, there wouldn't
be any right to go to the Court of Appeals, but that if you did have a trial,
then, of course, you had a right to go to the Court of Appeals. So since you
are pleading to me and giving up your right to go to trial, you are giving up
your right to go the Court of Appeals. Do you now understand what that
means?
Defendant Diaz: Yes, ma'am.
The Court: All right. Are you making this plea of guilty and guilty to the
first count as you have indicated because you are guilty of that, and are you
making it voluntarily or for any other reason?
Defendant Diaz: Because I'm guilty. And voluntarily.
The Court: Are you making your plea voluntarily?
Defendant Diaz: Mm~hm.
The Court: Does that mean yes?
Defendant Diaz: Yes ma'arn.
The Court: All right You know we're taking everything down on a record,
so l have to have the full words from you, whatever those words are.
Defendant Diaz: Okay.
The Court: All right Sir, l started to ask you this question a moment ago;
let me finish it. You are represented by Mr. Ferris Bond, who is standing
next to you, and also today by Mr. --- John, is it?
Mr. Rubens: Rubens, Your Honor.
'l``he Court: Rubens. Have you been satisfied with their professional
services to you and have you had enough time to talk to them about any
matters concerning this case?
Defendant Diaz: Yes. I'm satisfied.
The Court: Sir, do you understand that if l accept your plea of guilty,
because the government has filed papers with us, what we call an
information as to your prior convictions, which the government is not
withdrawing in your case, that the charge against you on the conspiracy
couut, if I accept the plea of guilty, will carry a mandatory term of life
in prison?
Defendant Diaz: Yes, I understand
'l``he Court: lt is not less than life. lt is a mandatory term of life in
prison with no chance of parole, no chance of probation, no chance of
anything less than life in prison. D0 you understand?
Defendant Diaz: Yes.
The Court: Sir, are you today under the influence of any kind of alcohol or
drug whatsoever? Have you used any alcohol or drug whatsoever today?
Defendant Diaz: No, Ma’am.
The Court: Do you believe you fully know what you are doing in making
this plea of guilty‘?
Defendant Diaz: Yes. l do.
TR at 46-49 (emphasis added).
Following this colloquy, Diaz stated that he understood that if he cooperated, the
government might file a motion for a departure pursuant to §5Kl . l, if the government
was satisfied with his cooperation TR at 50-5 l. However, he also acknowledged that
the government was under no obligation to do so and that it had not promised to do so in
his case. Id. at 5 l. The Court then inquired about whether the defendant understood the
plea agreement:
The Court: Have you read these full eight pages that appear to have been
signed by you?
Defendant Diaz: Yes, l did.
The Court: - of this plea agreement that is dated today’s date‘?
Defendant Diaz: Yes.
The Court: ls that your signature, sir, that l see on the back of the plea
agreement?
Defendant Diaz: Yes, it is.’
3 The Plea Agreement contained a provision above the defendant’s signature, which stated
in whole:
DEFE T’S E
l have read this plea agreement and have discussed it with my attomey, Mr. Ferris
Bond, Esquire. l fully understand this agreement and agree to it without
reservation. l do this voluntarily and of my own free will, intending to be legally
bound. No threats have been made to me nor am l under the influence of anything
that could impede my ability to understand this agreement fully.
l reaffirm that absolutely no promises, agreements, understandings, or conditions
have been made or entered into in connection with my decision to plead guilty
except those set forth in this plea agreement
I am satisfied with the legal services provided by attorney in connection with this
plea agreement and matters related to it.
Date: l0/28/92 / 1 Sign§gj 11
MICHAEL DIAZ
Defendant
Plea Agreement at 8-9.
The Court: Is that signature underneath you[rs] of your attorney[s], Mr.
Bond and Mr. Rubens?
Defendant Diaz: Yes. It’s their signature
The Court: All right And you’ve fully read all of this document and
understand all of its paxticulars?
Defendant Diaz: Yes ma’am.
'l``R at 52.
Immediately prior to accepting his plea, the Court inquired one last time whether
the defendant knew that he was pleading to an offense that cam``ed a mandatory life
SCIHCRC€I
The Court: All right. Mr. Diaz, you have had enough time to talk about
this potential plea, have you not?
Defendant Diaz: Mm-hm. Yes.
The Court: Is that yes? All right. And are you asking me now, with full
understanding of what the possible consequences are, with full
understanding of what the government believes that it could have proven if
it went to trial -- are you asking me to accept your plea of guilty to count
one of this indictment which charges, in effect, conspiracy to distribute
50 grams or more of cocaine base, in violation of law, and which carries
a mandatory life sentence in prison?
Defendant Diaz: Yes.
TR at 61 (emphasis added).
The defendant did not receive a motion for a departure based on substantial
assistance to the government, see Sealed Transcn``pt of Sentencing Hearing at 5-6, and on
February 3, 1993, at his sentencing, his counsel noted: "Mr. Diaz is facing the rest of his
10
life in prison." Transcript of Sentencing Hearing at 9. This Court then sentenced the
defendant to be imprisoned for a tenn of life. Id. at ll; judgment in a Criminal Case at 2
("JNC") (fled Feb. 9, 1993). He did not appeal his conviction or his sentence.
On December 7, l995, this Court granted the defendant’s application to proceed in
forma pauperis and authorized that the transcripts of the plea and sentencing hearings be
provided to him. See Order of Dec. 7, 1995 [Docket No. 45]. On Januaiy 31, 1996, this
Court denied the defendant’s motion for the appointment of counsel, stating:
In this case, the interests of justice would not be served by the
appointment of counsel The issues in the case are not cornplex, and it is
not now apparent that an evidentiary hearing would be required to review
the defendant’s claims. The defendant’s previous petitions to the Court
indicate that, despite only a ninth-grade education, he is able to
communicate effectively The underlying record and transcript of the guilty
plea and sentencing proceedings, which have been provided to the
defendant at his request, do not suggest that appointment of counsel is
necessary in the interests of justice
Order of Jan. 31, 1996, at l-Z [Docket No. 48].
On February 13, 1996, upon considering the defendant’s Motion for
Reconsideration of Order Denying Motion for Appointment of Counsel, this Court ruled
that it would hold the motion in abeyance until the defendant filed his petition under 28
U.S.C. § 2255. "Upon reviewing the defendant’s petition, the Court will be better
situated to determine whether appointment of counsel is necessaiy and appropriate lf
such appointment is warranted, counsel could refine the arguments presented by the
defendant or present new arguments as appropriate." Order of Feb. 13, 1996 at 1 [Docket
No. 50].
The defendant did not file a pro se petition, and, on .lanuary 6, 1997, the United
States moved that the Court deny the motion for reconsideration for failure to prosecute.
See Motion to Order Defendant to File his § 2255 Motion at l [Docket No. 51]. On
january 8, 1997, this Court stated that she would not hold the defendant’s motion for
reconsideration in abeyance indefmitely and ordered that "unless the defendant files his
petition pursuant to 28 U.S.C. § 2255 on or before March 7, 1997, his Motion for
Reconsideration of Order Denying Motion for Appointrnent of Counsel will stand denied
without further Order of this Court." Order of Jan. 8, 1997, at 1 [Docket No. 52]. The
defendant did not file his petition, and the motion for reconsideration was therefore
denied.
On Apri1 24, 1997, through counsel, the defendant filed a petition under § 2255.
While failing to explain why he did not appeal, see 2255 Motion at 4, the defendant
identified two grounds for relief:
Ground One: Distn``ct Court Failed to Make Downward Departure.
Supporting FACTS: The Distn``ct Court in sentencing Petitioner, indicated
it was restricted by the guidelines and had no option but to sentnece (sic)
Petitioner to life incarceration The United States Supreme Court has made
clear that the district court does have the option to exercise its discretion in
sentencing a defendant and may sentence a defendant to a lower sentence
than called for in the guidelines This is a case in which the district court
should exercise its discretion and make a downward departure.
Ground 'l``wo: ineffective Assistance of Counsel.
Supporting FACTS: Counsel failed in his representation during the plea
portion of the case to adequately advise the defendant that by pleading
guilty he was going to receive a mandatory life sentence. Had Petitioner
known that he was pleading guilty to a mandatory life sentence he would
have insisted upon going to tn``al. Counsel also failed during the sentencing
12
phase of the case to present any arguemtns (sic) in favor of a downward
departure. Effectively, Petitioner had no counsel, as upon his guilty plea he
received the maximum sentnenc (sic) with little to no effort on the part of
counsel to effect any change.
2255 Motion at 5.
II. Discussion
Putting the merits aside, the defendant’s 2255 Motion will be denied due to its
procedural defects. First, the motion is untimely. The Antiterron'sm and Effective Death
Penalty Act of 1996, which was signed into law on April 24, 1996, amended 28 U.S.C. §
2255 to provide a one-year period of limitation within which § 2255 motions must be
filed. See§ 105, Pub.L.No. 104-132, 110 Stat. 1220 (Apr. 24, 1996)." The defendant’s
conviction has long been fmal, and neither the record nor his petition support application
of any of the other trigger provisions of Section 105. Consequently, to be timely, the
defendant’s petition must have been filed on or before April 23, 1997. United States v.
‘ This section provides:
A l-year period of limitation shall apply to a motion under [§
2255], The limitation period shall run from the latest of--
(I) the date on which the judgment of conviction becomes tinal;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution of laws of
the United States is removed, if the movant was prevented from
making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review‘, or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence
13
Simmonds, ___ F.3d ____, ___, 1997 WL 177560 *8 (10th Cir. Apr. 14, 1997); Calderon v.
United States Dz``strict Ct., _ F.?>d 4 1997 WL 197546 *3 (9th Cir. Apr. 17, 1997);
Lindh v. Murphy, 96 F.3d 856,' 866 (7th Cir. 1996) (en banc), cert. granted in part, 117
S. Ct. 726 (1997). The defendant filed his petition on Apn``l 24, 1997, and he has not
identified any equitable reason for tolling. The motion will therefore be denied as
untimely.
Second, even were the Court to toll the statute of limitations applicable to the
defendant’s 2255 Motion, it would be rejected because of his procedural default, see
United States v. Frady, 456 U.S. l52, 167 (1982); United States v. Sanchez, 88 F.Bd
1243, 1248 (D.C. Cir. 1996), and on the men'ts. The defendant failed to appeal. And, in
his 2255 Motion, he has failed to identify cause for his failure to appeal or actual
prejudice resulting therefrom Fraciy, 456 U.S. at 167-68, 170-7 l. Nor has he shown that
failure to excuse this default would lead to a fundamental rniscarriage of justice. See,
e.g., United States v. MacDonald, 966 F.Zd 854, 859 (4th Cir.), cert. denz'ed, 506 U.S.
1002 (1992). This constitutes procedural default of at least the first ground identified in
his 2255 Motion. Frady, 456 U.S. at 167-68; see Boyer v. United States, 55 F.3d 296,
298 (7th Cir.), cert denied, 116 S. Ct. 268 (1995). But cf Ciak v. UnitedStates, 59 F.3d
296, 303-04 (Znd Cir. 1995) (claims of ineffective assistance excused from procedural
default).
The record also makes clear that the defendant’s claims would fail on the merits.
l~lis first claim of error falls flat, because his sentence was controlled by a statutory
14
mandatory minimum, not the Sentencing Guidelines. Absent a motion by the government
reflecting the defendant’s substantial assistance or qualification under the criteria of the
safety valve provision of U.S.S.G. §5Cl.2, the Court has no authority to depart below a
statutory minimum See 18 U.S.C. § 3553(e) (authority to depart based upon
government’s motion for substantial assistance); z'd. § 3553(t) (authority to depart based
upon safety valve provision for certain offenders); U.S.S.G. §$Cl.2 (safety valve); ia'.
§5Kl.l (substantial assistance); United States v. Thomas, 11 F.?>d 732, 736-37 (7th Cir.
1993), cert. denied, 513 U.S. 960 (l994); UnitedStates v. Campbell, 995 F.Zd 173, 175
(IOth Cir. 1993).
In this case, the defendant did not receive a motion for a departure based on
substantial assistance under 18 U.S.C. § 3553(e) and §$Kl.l nor did he meet the criteria
for application of the safety valve provisions under 18 U.S.C. § 3553(f) and §5€1.2.
Consequently, as reflected in the record, the Court had no authority to depart below the
s_tamtgry mandatory minimum. See Transcript of Sentencing Hearing at 10; PSR at 16;
JNC at 4 (adopting PSR).
In his argument, the defendant appears to confuse the limited authority to depart
below a statutory mandatory minimum with the broader authority to depart below a
sentencing range established by the Guidelines. While it may be error in a case not
controlled by a statutory mandatory minimum to deny a departure on the ground that the
Court has no discretion to depart below the Guidelines where discretion actually exists
and a proper motion is made, see, e.g., United States v. Beckham, 968 F.Zd 47, 54-55
15
(D.C. Cir. 1992), this case was controlled by the statute. The defendant’s problem is not
that he was classified as a career offender under U.S.S.G. §4B1.l, but that the statute
provided in no uncertain terms: "If any person commits a violation of this subparagraph .
. . after two or more convictions for a felony drug offense have become fmal, such person
shall be sentenced to a mandatory term of life imprisonment without release and fined in
accordance with the preceding sentence.” 21 U.S.C. § 841(b)(1)(A). This provision
limited the Court’s sentencing discretion Absent application of one of the two statutory
bases for departure, this Court had no authority to depart below the mandatory minimum
of life imprisonment.
Even had the sentence not been controlled by the statute and had the defendant
made a motion for a departure below the Guidelines, such a motion would have been
denied simply because there were no valid grounds upon which to have departed (nor did
the defendant identify any such grounds--either at his sentencing or in his instant 2255
Motion). While a downward departure below the guidelines range under §4A1.3 may be
appropriate for a career offender whose category over-represents the defendant’s criminal
history, see Beckham, 968 F.Zd at 54-55, that is not this case.’ (Unlike the defendant in
Beckham, see id. at 53, Defendant Diaz never identified any ground for a departure).
Rather than over-representing the seriousness of the defendant’s criminal history
5 "Ot`` course, a departure under U.S.S.G. §4A1.3 is only justified in the rare and unusual
case in which a defendant’s criminal history category significantly overrepresents the seriousness
of his past conduct and future threat to society." Beckham, 968 F.2d at 55.
16
or reflecting that recidivism was unlikely, see id. at 54; United States v. Clark, 8 F.3d
83 9, 843 (D.C. Cir. 1993), the count of which he was convicted pursuant to his plea was
entirely representative of the defendant’s criminal history. Both of the defendant’s prior
felony convictions (i.e., criminal sale of a narcotics in New York, New Yo_rk in 1987, and
the distribution of cocaine in Fairfax, Virginia in 1988, see PSR at 9-10) were for the
same offense conduct underlying the offense to which he pled guilty in this case--
conspiracy to distribute 50 grams or more of cocaine base in 1992. Both of the earlier
offenses occurred while he was an adult and both were relatively close in time to his 1992
conviction.‘ As detailed in the PSR and at the plea colloquy, the 1992 conviction for
conspiracy to distribute cocaine base was based on extensive criminal activity involving a
significant quantity of narcotics--over 325 grams of cocaine base. Rather than forming
the basis for a departure, the facts before the Court, and specifically those underlying the
1992 conspiracy conviction, demonstrated not that the defendant had learned from his
past encounters with the criminal justice system, but that for whatever reasons and to
whatever end, he had decided to deepen his involvement in the illegal sale of narcotics
At the defendant’s sentencing, this Court noted the severity of the sentence, but severity
alone is not a ground for departure under the Guidelines, see Beckham, 968 l``~.2d at 54,
and it certainly carmot be used as a basis to depart from the statutory mandatory
6 The defendant also received one criminal history point for a Bail Act Violation (a
misdemeanor) in the Superior Court ofWashington, D.C. in 1988, after he failed to appear for a
status hearing on a possession with intent to distribute cocaine charge. PSR at 10.
l7
minimum set by Congress. See Thomas, 11 F.3d at 737. Even had the Guidelines
controlled the defendant’s sentence, a motion for a departure (were one made) would not
have been granted in this case simply because none was warranted
His second claim of error, in which he contends that he was never told about the
mandatory life sentence that he faced by pleading guilty, fares no better. This Court
repeatedly inquired to ensure that the defendant understood that he was pleading guilty to
a sentence that carried a mandatory life sentence, and the defendant repeatedly told this
Court, while he was under oath, that he did so understand. See supra. Unlike the facts
presented in United States v. Thompson, 27 F.3d 671, 674-75 (D.C. Cir.), cert. denied,
513 U.S. 1050 (1994), the record makes crystal clear that the defendant’s counsel
properly advised him of the potential consequences of his guilty plea before the defendant
decided to plead guilty,
Nor does the Court accept the defendant’s argument that he was rendered
ineffective assistance because counsel failed to argue for a departure. To make out a
Sixth Amendment violation, the defendant must show not only that his counsel was
deficient but this deficiency resulted in prejudice: "there must be a ‘reasonable
probability’--defined as ‘a probability sufficient to undermine confidence in the
outcome’-~that ‘but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ " Thompson, 27 F.3d at 675 (quoting Strz'ckland v.
Washington, 466 U.S. 668, 694 (1984)).
Here, the defendant has shown neither a deficiency in his representation nor that a
18
motion (on some unidentified ground) would have changed his sentence. As explained
above, the defendant’s sentence was controlled by the statute. The record reflects that his
counsel recognized that the defendant’s own background eliminated the application of the
safety valve and therefore undermined the ability to seek a departure See TR at 36;
Transcript of Sentencing l~learing at 9. Counsel is not required to make motions that
stand no chance of success in order to blunt claims of ineffective assistance. Even had
counsel moved for a departure, the Court could not have departed because the statute
controlled and the defendant neither received a substantial assistance motion under 18
U.S.C. § 3553(e) and §5Kl.l nor qualified for the safety valve of 18 U.S.C. § 3553(f)
and §5Cl.2. See supra.
The record in this matter is clear: the defendant entered into a plea agreement with
the govemment in the hope of obtaining a substantial assistance departure in order to
avoid the mandatory sentence of life imprisorunent. At the plea hearing, while under
oath, he told this Court that he understood that he was pleading guilty to an offense that
carried a mandatory sentence of life in prison and that he understood that the government
was not obligated to move for a departure at sentencing if it was not satisfied with the
cooperation that he provided.? He recognized the risks, but he accepted the bargain.
Now, while he may regret that decision, he cannot deny that it was his decision to make
and his alone. He can, of course, complain about the consequences of that decision, but
7 The defendant also told this Court that he was fully satisfied with the performance of his
counsel TR at 49; see Plea Agreement at 9.
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neither his current regrets nor his after-the-fact complaints entitle him to legal relief under
28 u.s.C. § 2255.
lII. Conclusion
Accordingly, the defendant’s 2255 Motion is DENIED.
l'l`` lS SO ORDERED.
may 13, 1997. /l~w / food -
” JoYcE HENS GREEN
United States District Judge
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