The opinion of the court was delivered by: Chief Judge Kane
Pending before the Court is Defendant Frank E. Klimovitz's motion for habeas corpus pursuant to 28 U.S.C. § 2255 (Doc. No. 33). The motion has been fully briefed and is ripe for disposition.*fn1 Because the Court finds that Defendant's counsel provided ineffective assistance by failing to object to the amount of loss included in the pre-sentence report, the Court will grant Defendant's habeas writ, vacate his sentence, and reopen his case for resentencing.
A. Plea Agreement and Plea Hearing
On July 15, 2008 a one count Information was filed against Defendant charging him with violating 18 U.S.C. § 1341. Specifically, Defendant was charged with defrauding his employer, Jaxxi Products and Design, via a fictitious product sales and invoice scheme from September 2007 to May 2008. (See Doc. No. 1.) On July 15, 2008, the Government filed a plea agreement with Defendant. (Doc. No. 3.) According to the agreement, Defendant would plead guilty to the one count. (Id. ¶ 1.) In addition, the first paragraph of the agreement stated that [t]he defendant further agrees that any legal and factual issues relating to the application of the Federal Sentencing Guidelines to the defendant's conduct, including facts that support any specific offense characteristic or other enhancement or adjustment and the appropriate sentence within the statutory maximums provided for by law, will be determined by the court after briefing, or a pre-sentence hearing, or at a sentencing hearing. (Id. (emphasis added).) Likewise, seventh paragraph of the agreement stated that "[t]he defendant and the government agree that the amount of the loss resulting from the defendant's actions will be determined by the Court at the sentencing hearing." (Id. ¶ 7.)
Defendant and the Government reached the plea agreement several weeks earlier, on June 27, 2008. (Doc. No. 33 ¶ 4.) During his negotiations with the Government, Defendant claims that he was told that "if I acted on paying full restitution, that they would recommend probation, along with my attorney [Gary Michak]." (Habeas Petition Tr. 10, May 8, 2009.) In line with this, a handwritten amendment was added to the twelfth paragraph of the plea agreement on September 2, 2008, the date of Defendant's plea hearing. (Id.) The handwritten amendment stated:
If the Defendant pays $351,990 restitution at the time he enters his guilty plea, the Government agrees to join the Defendant in a motion for departure based upon extraordinary acceptance of responsibility and recommend probation at the time of sentencing. (Doc. No. 11 ¶ 12.) The handwritten amendment was initialed by Defendant and by Kim Daniel, the Assistant United States Attorney. (See id.; Plea Hearing Tr. 11, Sept. 2, 2008.) At the plea hearing on September 2, 2008, during the Court's colloquy of Defendant, the Court asked Mr. Daniel to outline the essential terms of the plea agreement. (Plea Hearing Tr. 10, Sept. 2, 2008.) After reviewing the outline of the plea agreement, Mr. Daniel pointed to the handwritten amendment that had been inserted regarding the amount of restitution and the Government's probation recommendation. (Id. at 10-11.) The following exchange occurred:
MR. DANIEL: . . . And I would note that the original agreement, Your Honor, had no specific agreement as to the amount of the loss in this case, leaving such to the determination of the Court. But we've now reached an agreement on the amount of the loss, and Mr.
Klimovitz has agreed to make this payment.
BY THE COURT: . . . Mr. Klimovitz, at this point in the proceedings I'm always careful to advise defendants--and I especially want this to be so in your case--that any recommendation that the Government would make on your case is only that, a recommendation. Very often I will follow the recommendations of the Government, especially when they relate to credit for acceptance of responsibility or extra credit on sentencing that the Government might suggest is appropriate because of cooperation. Very often it's the Government who is in the best position to evaluate assistance that a defendant has given. . . .
In a case such as this where the Government is making a more specific recommendation so that a person be credited with something under the guidelines, it's even more tenuous as to whether I would accept the Government's recommendation.
I don't want you to plead guilty to this offense with the expectation that I will give you credit for extraordinary acceptance. I have not researched the issue, but I have some preliminary views as to whether or not extraordinary acceptance is appropriate or even allowed.
I believe--maybe Mr. Daniel has researched it or Mr. Michak has--that the cases would suggest that the Court would be in error to credit a defendant with extraordinary acceptance for a restitution payment. I believe that is the state of the law. If that is the state of the law, I would not be inclined to give that credit. (Plea Hearing Tr. 11-13, Sept. 2, 2008.) After discussing the agreement further with the attorneys, the Court resumed its colloquy of Defendant. The Court specifically explained to Defendant the specific penalties for the offense to which he was pleading guilty and that it was not bound by the Government's recommendation in sentencing him. (Id. at 17.) The following exchange occurred:
[THE COURT]: . . . [N]o one knows what your sentence is going to be. The lawyers don't know, and I certainly don't know because I haven't seen the report yet, and I don't know what your guideline range is going to be. I certainly cannot tell you today whether I would be accepting the Government's recommendation in the case.
If the Government does, indeed, recommend that you receive probation in the case, I may or may not think that appropriate, and I am not required to follow any recommendation that they offer to me.
[THE COURT]: Do you have any questions about any of that?
[THE COURT]: Any questions at all for your lawyer or for me about the plea agreement that's been filed in the case?
[THE COURT]: Has anybody promised you what your sentence will be here?
[THE COURT]: Do you understand then that anything the Government offers is only that, a recommendation?
[MR. KLIMOVITZ]: Yes. (Plea Hearing Tr. 18-19, Sept. 2, 2008.) Defendant entered a plea of guilty pursuant to the ...