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KATES v. UNITED STATES

May 24, 1996

Walter T. Kates
v.
United States of America



The opinion of the court was delivered by: GAWTHROP

 Gawthrop, J.

 May 24, 1996

 Petitioner, Walter T. Kates, filed a motion to vacate, set aside, or correct his criminal sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel, and requesting a hearing, which was held. Upon the following reasoning, I shall grant the motion.

 A jury convicted Mr. Kates of (1) conspiracy to distribute and possess with intent to distribute methamphetamine, (2) distribution of methamphetamine, and (3) two counts of possession with intent to distribute methamphetamine, for violations of 21 U.S.C. § 841 (1988 & Supp. II 1990), 21 U.S.C. § 846 (1988), and 18 U.S.C. § 2 (1988). On October 4, 1993, he was sentenced as a career offender to 360 months imprisonment, the minimum sentence permissible under the United States Sentencing Guidelines. The Third Circuit affirmed both the conviction and the sentence. See United States v. Kates, No. 93-1939 (3d Cir. filed June 15, 1994).

 Over the course of these proceedings, Mr. Kates has been represented by a variety of lawyers, one each to handle his arraignment, his trial, his sentence and appeal, and now his § 2255 motion. Mr. Kates is forty-five years of age.

 In his § 2255 motion Mr. Kates contends that his attorneys were prejudicially deficient because they failed (1) to explain clearly the plea bargain offered and (2) to distinguish between D- and L-methamphetamine, as this distinction relates to his sentence. At the evidentiary hearing on this motion, Mr. Kates withdrew the second ground, and I thus consider his claim of ineffective assistance of counsel only with respect to the alleged deficiency regarding plea bargaining.

 Mr. Kates claims that because counsel never informed him that he faced a possible mandatory minimum sentence of 360 months imprisonment if he stood trial, he was denied effective assistance of counsel. *fn1" He contends that had counsel told him that if he rejected the bargain, went to trial, and was convicted, he would have faced a prison sentence of not less than 30 years, he would not have run that risk, but would have accepted the government's offer and pled guilty. Instead, he went to trial and is now suffering the consequences. He has maintained his innocence throughout.

 To prevail on an ineffective-assistance-of-counsel claim, a defendant must clear two probative hurdles. First, he must prove that his counsel's performance was so unreasonable, considering all of the circumstances, that it denied him his Sixth Amendment rights. Strickland v. Washington, 466 U.S. 668, 687-91, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Second, he must prove that counsel's ineffectiveness caused him to be prejudiced.

 I turn first to the alleged deficient performance of counsel. The government prepared and presented a proposed plea agreement to Joseph M. Gontram, Esq., Mr. Kates's first attorney. Under that agreement, Mr. Kates would plead guilty to conspiracy, acknowledge his guilt as charged in the indictment, and cooperate with the government, including testifying before a grand jury and at trial if called upon so to do. The agreement called for the government's moving to dismiss the other counts of the indictment, contingent upon Mr. Kates's cooperation. For the conspiracy count, under 21 U.S.C. §§ 841 and 846, Mr. Kates faced a maximum sentence of 40 years imprisonment, with a mandatory minimum of five years. If the government, in its sole discretion, found Mr. Kates to have cooperated sufficiently to sate their purposes, they agreed to file a motion pursuant to § 5K1.1 of the Guidelines and 18 U.S.C. § 3553(a), which would authorize the court to depart downwards from the minimum Guideline range as well as the five-year statutory minimum. (Pet'r Ex. C).

 At his § 2255 hearing, each of Mr. Kates's prior lawyers testified that he did not tell Mr. Kates that, under the Guidelines, he faced a sentence of between 30 years and life, if convicted, as opposed to the government's offer of 5 to 40, with a possible downward departure below the 5. Mr. Gontram said he was not sure whether he had explained the Guidelines computations to Mr. Kates; he said he did not recall performing the actual calculation, but that he believed that he had discussed the Guidelines generally with his client.

 When pressed on this point, Mr. Gontram referred to the mandatory minimum contained within the plea agreement, but testified in generalities, stating that "I did advise him that these numbers were to be increased without a deal, because of the very real possibility that the Government would file papers with the court with respect to previous convictions." (Transcript of § 2255 hearing at 113-14) ("Trans."). There is no evidence, however, that Mr. Gontram performed the actual Guidelines calculations or that he apprised Mr. Kates with specificity of the three-decade Guideline minimum he faced if convicted.

 Mr. Kates's two succeeding attorneys testified more directly on this subject. Robert Scandone, Esq., his trial attorney, testified:

 Q: Did you tell him [Mr. Kates] that he was going to do 30 years if he went to trial, that it was mandatory and ...


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