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United States v. Pennant

February 11, 2009

UNITED STATES OF AMERICA
v.
PAUL PENNANT



The opinion of the court was delivered by: Juan R. Sánchez, J.

CRIMINAL ACTION

MEMORANDUM AND ORDER

Paul Pennant asks this Court to vacate his sentence on grounds he received ineffective assistance of counsel during his guilty plea. The Government argues Pennant waived his right to collaterally challenge his sentence as a part of his plea agreement. Because I find Pennant's waiver of his collateral appeal rights was knowingly, intelligently, and voluntarily entered, I will deny Pennant's motion.

Pennant raises five issues in his petition for a writ of habeas corpus under 28 U.S.C. § 2255*fn1, alleging ineffective assistance of counsel during his plea and a violation of his Fifth Amendment rights during sentencing.

FACTS

On December 27, 2004, the Government filed an information charging Pennant with conspiracy to possess with intent to distribute more than 1000 kilograms of marijuana in violation of 21 U.S.C. § 846. Approximately four months later, on April 20, 2005, the Government filed a notice pursuant to 21 U.S.C. § 851 which detailed Pennant's prior drug felony conviction.*fn2

When Pennant entered his guilty plea on May 10, 2005, after a colloquy, he also waived his right to an indictment. During the colloquy, I informed Pennant of the charges against him and the consequences of choosing to plead guilty rather than proceeding to trial. In particular, I warned Pennant the plea agreement severely limited his right to appeal or to otherwise challenge his sentence or conviction. I cited only three instances where Pennant could appeal his case: if the Government appealed my sentence; if my sentence exceeded the statutory maximum; or if I erroneously departed upward from the otherwise applicable sentencing guidelines. Pennant stated he understood this information and chose to enter a guilty plea.

On the day of sentencing, the Government erroneously stated, "Mr. Pennant was the primary person with the primary contacts in Mexico with the suppliers of marijuana." Sentencing Tr. 22. Pennant's attorney did not object to the Government's misstatement. The factual basis for Pennant's guilty plea and the Pre-Sentence Investigation Report (PSIR) correctly identified Pennant's secondary role. The Government filed a Motion under Guidelines § 5k1.1 and 18 U.S.C. § 3553(e) recognizing Pennant's substantial assistance in the investigation and prosecution of other persons to justify a downward departure from the guideline sentencing range and from the mandatory minimum sentence. After considering the Guideline range of 262-327 months and the Government's Motion, I imposed a sentence of 174 months' imprisonment, 10 years' supervised release..

Despite the waiver in his plea agreement, Pennant filed a notice of appeal on October 28, 2005. The Third Circuit Court of Appeals granted the Government's motion to enforce the appellate waiver and dismissed Pennant's request. Subsequently, Pennant filed this Motion under section 2255.

DISCUSSION

Criminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver. United States v. Mabry, 536 F.3d 231, 243 (3d Cir. 2008). A valid waiver requires a colloquy which results in a knowing and voluntary decision.*fn3 Id. at 244. In this case, as in Mabry, the written plea agreement "provides that the waiver is very broad, admits of no exceptions, and applies to both direct appeal and collateral challenge rights." Id. at 238.

The record indicates I ensured Pennant's waiver was "knowingly and voluntarily" made. The text of the plea agreement signed by Pennant specifically stated he "voluntarily and expressly" waived "all rights" to collaterally attack his sentence under 28 U.S.C. § 2255. Guilty Plea Agreement ¶ 10. During the Rule 11 colloquy, I reviewed this waiver at length with Pennant and specifically stated his right to challenge his sentence and conviction by habeas corpus was severely limited by the agreement.*fn4 Pennant stated he understood the limitations to his rights. Guilty Plea Hr'g Tr. 34:14-15. He further agreed his decision to plead guilty was made free of coercion or other inducement. Id., 23:1-13. Thus, Pennant knowingly and voluntarily elected to enter his plea understanding the consequences.

Even though I am satisfied Pennant's waiver of his appellate rights was knowing and voluntary, I am also obligated to examine whether his plea and sentencing resulted in a miscarriage of justice. United States v. Khattak, 273 F.3d 557, 563 (3d Cir.2001) (stating "[t]here may be an unusual circumstance where an error amounting to a miscarriage of justice may invalidate the waiver"). A "miscarriage of justice" exists where "constitutionally deficient lawyering prevented [a defendant] from understanding his plea or from filing a direct appeal as permitted by his plea agreement." United States v. Shedrick, 493 F.3d 292, 297-98 (3d Cir. 2007) (invalidating a waiver because counsel failure to file an appeal deprived the defendant of "the opportunity properly to raise the issue he had previously expressed a desire for this Court to review and which he had explicitly preserved in his plea agreement and colloquy").

The Third Circuit directs the court to consider "the clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error . . ., the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result" to determine whether a miscarriage of justice occurred. as factors to consider before invalidating a waiver as involving a "miscarriage of justice." Mabry, 536 F.3d at 242-43 (citing United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)). Because I find none of Pennant's ...


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