The opinion of the court was delivered by: Judge Munley
Before the court for disposition are the defendant's identical motions to vacate, set aside or correct his sentence (Doc. 137 of No. 03:05cr117; Doc. 30 of No. 03:07cr090) filed pursuant to 28 U.S.C. § 2255.*fn1 The matters have been fully briefed and are ripe for disposition.
In February 2005 a cooperating witness informed the Federal Bureau of Investigation ("FBI")that Defendant John C. Tanis, III ("Tanis") asked the witness to (1) convert two non-functional Thompson Machinegun model 1928 A-1 receivers into functional automatic receivers; (2) thread a.22 caliber rifle barrel and a.22 caliber handgun barrel to accommodate silencers; and (3) inquired about ordering fifty Thompson Machinegun barrels, ten of which were to have threaded barrels. (Ciminal Compl., Aff. of Special Agent Joseph Noone at ¶¶ 2, 3 (Doc. 1)). Tanis had informed the witness that he had a contract outside the United States for fifty Thompson Machineguns. (Id. at ¶ 3). The witness performed the requested conversion, giving one receiver to Tanis and keeping the other for further modifications. (Id. at ¶ 4). The witness confirmed that the converted firearm he kept operated in full automatic. (Id.)
The FBI checked Tanis's criminal background and determined that Tanis had a New Jersey felony conviction for an illegal firearm. (Id. at ¶ 8). A second cooperating witness was interviewed by the FBI on February 24, 2005. (Id. at ¶ 9). The second witness had, eighteen months prior, observed a large number of firearms kept in safes in Tanis's residence at 70 Cabin Road, Tunkhannock, Pennsylvania. (Id. at ¶ 9).
On March 4, 2005, the first cooperating witness met with Tanis and was given four more Thompson Machinegun receivers. (Id. at ¶ 10). This meeting was recorded on video and audio. (Id.) Tanis and the witness discussed the purchase of an additional fifty barrels. (Id.) Tanis indicated that he still wanted ten of the barrels fit for a special purpose.(Id.) Tanis explained that the receivers were coming from the former Soviet Union and that customs could not recognize them because the receivers lacked a trigger mechanism. (Id.) Tanis stated that he kept the first receiver converted by the witness at his home. (Id.) Tanis also stated that he had a place in his home to hide the other completed machineguns. (Id.) Finally, Tanis stated that he would bring three silencers to the witness to make sure they fit the barrels. (Id.)
On March 7, 2005, the second cooperating witness informed the police that Tanis had returned from the Ukraine on March 3, 2005. (Id. at ¶ 11). An agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") confirmed on March 7, 2005 that Tanis had not been pardoned for his New Jersey felony conviction. (Id. at ¶ 12). The agent also examined the receivers Tanis gave to the first cooperating witness and confirmed that they constituted "machineguns" and "firearms" under 26 U.S.C. § 5845(b) and 18 U.S.C. § 921(a)(3). (Id. at ¶ 13).
On March 8, 2005 law enforcement officers confronted Tanis and informed him that a search warrant was going to be executed on his home in Tunkhannock. (Id. at ¶ 14). A search of the residence resulted in the seizure of more than one dozen hunting rifles, ammunition, and Thompson Machinegun parts. (Id.)
The FBI arrested Tanis on March 8, 2005. Tanis was charged with possession of a firearm by a felon, 18 U.S.C. § 922(g), and possession of machineguns, 18 U.S.C. §§ 922(o) and 924(a)(2). (Criminal Compl. (Doc. 1)).On March 9, 2005 Attorney David Cherundolo ("Cherundolo") was appointed to represent Tanis. (CJA 20 (Doc. 8).On March 22, 2005, a Federal Grand Jury returned a two count indictment charging that Tanis, having been previously convicted of a crime punishable by imprisonment exceeding one year, possessed 109 firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count I) and that Tanis unlawfully possessed machineguns, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count II). (Indictment (Doc. 11)).
On March 23, 2005, Cherundolo moved to withdraw his appearance as attorney. (Doc. 14). This Court granted that motion on March 29, 2005, and Attorney Gerard Grealish was added that day. (Doc. 15). The next day, March 30, 2005, Attorney Grealish was replaced on the docket with Attorney William Ruzzo ("Ruzzo"). Ruzzo was appointed to represent Tanis on April 4, 2005. (CJA 20 (Doc. 16)).
On March 13, 2006, the United States Attorney filed a superseding information. (Doc. 43). Count I of the superseding information charged Tanis with having been convicted of a crime punishable by imprisonment exceeding one year and possessing eight firearms, ammunition, and three silencers, in violation of 18 U.S.C. § 922(g)(1). Count II charged that Tanis shall forfeit, pursuant to 18 U.S.C. §§ 922(d), 981(a)(1)(C) and 28 U.S.C. § 2461(c), all right, title and interest in any property which constitutes proceeds traceable to the violations, and specifically listing 178 firearms along with ammunition, machinegun parts, and silencer components. (Id.) That same day, pursuant to a written plea agreement, Tanis pleaded guilty to the superseding information before this Court. (Docs. 43 - 48).
At the plea hearing Tanis admitted that-- having been previously convicted of a felony-- he possessed firearms and ammunition. (March 13, 2006 Change of Plea Hearing at 14 to 20 (Doc. 151)). Tanis stated that no one coerced him into waiving indictment or pleading guilty. (Id. at 5, 26). He understood that he was waiving the rights which attach to a criminal trial by jury. (Id. at 10 to 13). Tanis affirmed that no one had promised him a particular sentence. (Id. at 35). Tanis stated that he understood that, upon the completion of the presentence report, the court would consult the United States Sentencing Guidelines in determining Tanis' sentence, but that those guidelines were advisory only. (Id. at 36 to 37). Knowing these legal precepts Tanis pleaded guilty to the charges in the superceding information. (Id. at 39).
On August 16, 2006, the FBI interviewed representatives of Old Forge Bank in Old Forge, Pennsylvania and M&T Bank in Dallas, Pennsylvania, regarding suspicious activity by Tanis. (Aff. of Special Agent Richard Southeron at ¶¶ 3, 13 (Doc. 2 of No. 03:06cr302)). The FBI interviews and investigation revealed that Tanis made or attempted to make ten deposits at these banks, or branches thereof, and that at least five of these transactions involved counterfeit checks. (Id. at ¶¶ 4 - 16). The transactions occurred between March 6, 2006 and August 15, 2006, with only the first transaction predating Tanis's guilty plea of March 13, 2006. (Id.) A criminal complaint was filed against Tanis on August 18, 2006. (Doc. 1 of No. 03:06cr302).
On September 5, 2006, he was indicted for bank fraud, 18 U.S.C. § 1344, possessing and uttering forged securities, 18 U.S.C. § 513(a), and passing and attempting to pass false and fictitious financial instruments and documents, 18 U.S.C. § 514(a)(2). (Doc. 13 of No. 03:06cr302). He pleaded guilty on March 5, 2007, to a superseding information charging him with misprision of a felony, 18 U.S.C. § 4, pursuant to a binding plea agreement. (Doc. 6 of No. 03:07cr090). The plea agreement, under Federal Rule of Criminal Procedure 11(c)(1)(C), called for a sentence of twelve months plus one day for misprision of a felony, to run consecutive to Tanis's gun sentence. (Doc. 3 of No. 03:07cr090).
During the plea hearing Tanis admitted that he deposited or attempted to deposit approximately six forged or counterfeit checks and that upon learning that they were forged or counterfeit he did not notify law enforcement authorities as soon as possible. (March 5, 2007 Change of Plea Hearing at14 to 15 (Doc. 41 of No. 3:07cr090)). Tanis stated that no one coerced him into pleading guilty. (Id. at 15). He understood that he was waiving the rights which attach to a criminal trial by jury. (Id. at 11, 12). Tanis stated that he understood that, upon the completion of the presentence report, the court would consult the United States Sentencing Guidelines in determining Tanis' sentence, but that those guidelines were advisory only. (Id. at 22). Knowing this, Tanis pleaded guilty to the charges in the superceding information. (Id. at 24).
On March 30, 2007, this Court held two sentencing hearings for Tanis. Tanis was sentenced on his firearms-related plea to imprisonment for a term of sixty months, followed by supervised release for a term of three years. (Judgment, Doc. 100). Tanis was sentenced on his misprision of a felony plea to imprisonment for a term of twelve months and one day to run consecutive to his firearms-related imprisonment. (Judgment (Doc. 10 of 03:07cr090).
On April 11, 2007, Tanis filed a notice of appeal on his firearms-related conviction. (Doc. 101). On June 5, 2007, Tanis moved for property maintenance. (Doc. 108).On January 18, 2008, Tanis moved for return of his property. (Doc. 116).This Court denied Tanis's motion as untimely on April 10, 2008. (Doc. 118). On April 18, 2008, the United States made a final motion for forfeiture of property as to Tanis. (Doc. 121).
On July 30, 2008, the United States Court of Appeals for the Third Circuit affirmed Tanis's sentence of seventy-two months for possession of a firearm, 18 U.S.C. § 922(g) and misprision of a felony, 18 U.S.C. § 4. (Doc. 127-2). The Court of Appeals found that this Court properly considered the factors listed in 18 U.S.C. § 3553 in imposing Tanis's sentence. (Id.)
On September 22, 2009, Tanis filed the instant motions to vacate under 28 U.S.C. § 2255. (Doc. 137; Doc. 30 of No. 03:07cr090). Upon receipt of the Tanis's pro se motions, the court issued notices of election to the defendant pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999). (Doc. 138; Doc. 31 of 03:07cr090). Tanis did not respond to those orders. Accordingly, we treat his motion ...