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FRANK v. UNITED STATES

June 9, 1981

Anthony J. FRANK, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: WEBER

The plaintiff, Anthony Frank, is a prisoner presently incarcerated in the Federal Correctional Institute in Morgantown, West Virginia. Pursuant to 28 U.S.C. § 2255, Mr. Frank has recently filed two motions to vacate the sentence imposed on him by this court. A hearing and argument was held on these motions on May 5, 1981. We conclude that none of the arguments raised in the plaintiff's motions justify vacation of his sentence. Therefore we will deny these motions.

In order to fully understand the nature of the claims made by the plaintiff in these motions it is necessary to discuss the background of this case in some detail. Anthony Frank was indicted on March 1, 1979 and charged with possession of $ 20,000 of stolen securities in violation of 18 U.S.C. §§ 2315 and 2. These securities were part of a $ 5,000,000 armed robbery which had taken place in New York City on July 13, 1978. In the course of the FBI's investigation into this theft, and during his plea negotiations with the United States Attorney's office, Mr. Frank admitted to the authorities that he had possessed between $ 750,000 and $ 1,700,000 in stolen securities. At this time Frank also alluded to the fact that he possessed detailed knowledge of the involvement of others in this theft. Frank frequently promised to cooperate with the authorities and assist in this investigation in return for lenient treatment. In fact, however, Frank never provided any such assistance to the government.

 Mr. Frank initially entered a plea of not guilty to the charges contained in the March 2 indictment. However, on May 11, 1979, in proceedings conducted before this court, Frank formally changed his plea from not guilty to guilty. In the course of the proceedings the court engaged in an extended colloquy with Mr. Frank. In this colloquy Frank acknowledged full awareness of the charges pending against him; the possible term of imprisonment he faced; and the rights he was waiving by entering a plea. Frank also stated that his plea was not induced by any threats or promises.

 At the close of this colloquy the court accepted Mr. Frank's plea and ordered the Probation Office to prepare a presentence report. This report, which was submitted on June 14, 1979, contained a complete recital of the facts surrounding Mr. Frank's case, including his admissions of involvement in a much larger criminal enterprise. Because of this admitted involvement in a larger criminal scheme, the presentence report predicted that the Parole Commission would give Frank an offense severity rating of Greatest I.

 The offense severity rating is one of several variables used by the Parole Commission in calculating probable release dates for federal prisoners. This rating is essentially an evaluation by the Commission of the relative severity of the defendant's criminal behavior. In calculating this offense severity rating the Parole Commission does not limit itself solely to the charges currently being served by the prisoner. Rather the Commission considers information contained in the defendant's presentence report and "any (other) substantial information available to it" in arriving at an offense severity rating. See 18 U.S.C. § 4207; 28 C.F.R. § 219. In fact in some instances the Commission may even consider charges upon which a prisoner was found not guilty when determining offense severity. See 28 C.F.R. § 2.19(c); see also United States ex rel. Goldberg v. Warden, Allenwood Federal Prison Camp, 622 F.2d 60 (3rd Cir. 1980). Under these guidelines a Greatest I severity rating is one of the highest ratings the Parole Commission can confer. See, 28 C.F.R. § 2.20. By attaching such a severity rating to a prisoner's conduct the Parole Commission indicates that the prisoner's criminal behavior, viewed in its totality, is extremely serious. Therefore a Greatest I rating generally reduces the possibility of early parole for a prisoner.

 It is conceded in this case that, if the Parole Commission had calculated the offense severity rating solely on the basis of the offenses charged in Frank's indictment, the severity rating assigned to Frank would have been lower. See 28 C.F.R. § 2.20.

 Given this background the plaintiff now comes before this court seeking vacation of his sentence. The plaintiff's argument in support of these motions to vacate is essentially twofold. First, he contends that his plea of guilty was not knowingly and intelligently made because he was not aware, at the time he entered the plea, of all of the consequences of that plea. See Fed.R.Cr.P. 11.

 Specifically Frank asserts that he was unaware that the statements contained in his presentence report would be considered by the Parole Commission and effect his chances for parole. Without this information Frank contends that he could not intelligently enter a guilty plea.

 Frank also argues that his trial counsel was incompetent because counsel failed to specifically inform him of the Parole Commission guidelines and procedures at the time of his guilty plea. For the reasons set forth below we reject both of these arguments and deny the plaintiff's motions.

 I.

 It is clear "that the accuracy and truth of an accused's statements at a Rule 11 proceeding in which his guilty plea is accepted are "conclusively' established by that proceeding unless and until he makes some reasonable allegation why this should not be so." Crawford v. United States, 519 F.2d 347, 350 (4th Cir. 1975). In this case the plaintiff has shown no reason for disregarding the statements he made at the time he changed his plea. Therefore, he must now be bound by those statements.

 At the time that Frank changed his plea the court engaged in an extended colloquy with him. In that colloquy the following exchanges took place:

 
Q. All right. Now has anyone made any kind of an offer with respect to the plea here? Has anyone said that if you plead guilty, things will go easier or the Judge will do a certain thing?
 
A. No, Your Honor.
 
Q. Has anyone threatened you if you didn't plead guilty, you might face more serious consequences or other charges?
 
A. No, Your Honor.
 
Q. So there has been no indication of any kind here, is that it, of what ...

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