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United States of America v. Kevin Rankin

June 14, 2011

UNITED STATES OF AMERICA,
v.
KEVIN RANKIN
UNITED STATES OF AMERICA,
v.
KEVIN RANKIN



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION AND ORDER

Pending before the Court are Kevin J. Rankin's ("Petitioner" or "Defendant") Habeas Corpus Motions to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255*fn1 and the Government's Motion to Dismiss the same.*fn2

I.FACTUAL AND PROCEDURAL BACKGROUND

On October 25, 2005, a federal grand jury in the Eastern District of Pennsylvania returned an indictment charging Petitioner with two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) ("firearm possession case").*fn3 While the firearm possession case was pending, Petitioner was also indicted on January 16, 2007 by a separate federal grand jury in the Eastern District of Pennsylvania for one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371; three counts of making false statements to a federally insured financial institution in violation of 18 U.S.C. § 1014; one count of willful failure to file a tax return in violation of 26 U.S.C. § 7203; one count of willfulfailure to file tax returns in violation of 26 U.S.C. § 7203; and four counts of making or subscribing a false tax return in violation of 18 U.S.C. § 7206(1) ("fraud case").*fn4 Petitioner faced a total statutory maximum of 128 years imprisonment, a 5-year period of supervised release, a $2.6 million fine, a $1,025 special assessment, and restitution to the IRS of at least $247,000.*fn5 Petitioner's motion to sever trials on Counts One and Two in the firearm possession case was granted on July 23, 2007.*fn6 On July 25, 2007, a jury returned a guilty verdict on Count Two in the firearm possession case. As a jury waited in a separate courtroom to commence his trial on Count One, Petitioner chose to enter a change of plea for the remaining firearm (Count One) and for the fraud and tax-related charges pending against him, and entered into a written plea agreement with the Government.*fn7 At the time, Petitioner was represented by experienced criminal defense attorneys of his choice-Edwin Jacobs, Jr., Christopher Warren, and Robert Madden.

Under the terms of the plea agreement, Petitioner agreed "not to challenge the guilty verdict returned by the jury on July 25, 2007 in Criminal [Action] No. 05-615-1 . . . ."*fn8 In the agreement, Petitioner further agreed that, with very limited exceptions, he would neither appeal nor present any collateral challenge to his conviction or sentence. Specifically, the appellate waiver provision of the plea agreement stated that:

In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.*fn9 The only exceptions to this waiver were if the government filed an appeal, or if certain conditions were present such as:

(1) defendant's sentence on any count of conviction exceeds the statutory maximum for that count . . . ; (2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines; (3) the sentencing judge, exercising the Court's discretion pursuant to United States v. Booker, 125 S. Ct. 738 (2005), imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court.*fn10

In exchange for these waivers, the Government agreed that it would recommend to the Court that Petitioner receive a three-level downward adjustment pursuant to U.S.S.G. § 3E1.1(a) and (b) for Petitioner's timely acceptance of responsibility of his crimes and for assisting authorities in the investigation or prosecution of his own misconduct by timely notifying the Government of his intent to plead guilty and timely providing complete information about his own involvement in the offenses.*fn11 The plea agreement, as signed by Petitioner, also made it clear that it contained "no additional promises, agreements or understandings other than those set forth in this written guilty plea agreement, and that no additional promises, agreements or understandings [would] be entered into unless in writing and signed by the parties."*fn12 Additionally, the plea agreement stated that Petitioner was "satisfied with the legal representation provided by [his] lawyer; the defendant and [his] lawyer . . . fully discussed this plea agreement; and the defendant [was] agreeing to plead guilty because the defendant admits that he is guilty."*fn13 Petitioner signed a separate two-page Acknowledgment of Rights, the first paragraph of which stated his understanding that he has the right to "not have to plead guilty," and that "if [he] plead[s] guilty, [he will] have waived [his] right to appeal, except as set forth in the appellate waiver provisions of [his] plea agreement."*fn14

At Petitioner's July 26, 2007 Change of Plea hearing, at which Petitioner was represented by his three attorneys,*fn15 the Court conducted a full colloquy with Petitioner. During the colloquy, the Court reviewed with Petitioner, in great detail, the plea agreement to determine whether Petitioner was competent and capable of entering an informed plea, and to determine whether he knowingly, intelligently, and voluntarily gave up his rights to a trial by pleading guilty and entering into the underlying guilty plea agreement. The Court also explored whether the Petitioner understood the charges against him and the terms of the plea agreement.*fn16
The Court first extensively explored Petitioner's competence, asking whether he had ever taken any drugs, prescribed or otherwise, had ever received in-patient or out-patient treatment for chemical addiction, either drugs or alcohol, whether such treatment had ever been recommended to him or whether it was a component of Petitioner's prior probation, when the petitioner had last consumed alcohol and whether he had taken any drugs, prescribed or over-the-counter, in the last 24 hours.*fn17 Petitioner responded that he had never undergone treatment for drug or alcohol abuse, had taken only prescription drugs and only those for treatment of his heart condition, and, within the last 24 hours, had ingested prescription medications for that heart condition, aspirin and two glasses of wine but had stopped drinking at 6:00 p.m. the prior evening.*fn18 The Court further explored whether his prescription heart medications might affect his ability to understand the proceeding and the plea agreement:

The Court: So when you take this medication that you just listed for me, there's four prescription meds plus aspirin. You said you have had your medications in the last twenty-four hours, did you?

The Defendant: Yes, Your Honor, I took it last night.

The Court: When you take this medicine, does it affect your ability to understand what you are doing, or [affect] your comprehension in any way?

The Defendant: I don't think so.*fn19

In addition, the Court also asked Petitioner whether his hearing impairment affected his ability to understand or hear the proceedings:

The Court: Now, I know also, because I heard you testify in the trial - -was it Tuesday you testified that you wear hearing aids?

The Defendant: I do, Your Honor.

The Court: So can you hear me now?

The Defendant: I can, Your Honor.

The Court: Do you have any trouble understanding or hearing what I am asking of you?

The Defendant: I do not.*fn20

Petitioner also confirmed that he had been represented by his counsel of choice for a few years, had discussed the indictment and cases with them, and was satisfied with their representation.*fn21

The Court further explored with Petitioner his understanding of the appellate waiver provisions of the plea agreement. The Court first asked the Government to orally explain the terms of the plea agreement, including the provisions of the appeal waiver, on the Record:

Mr. Schwartz: We also have an appellate waiver. The parties agree - the defendant agrees that he will not appeal either his conviction in the trial or any other matters, including post sentencing appeals through a 2255, with a very limited carve out.

The defendant could appeal his sentence if the government was to appeal this Courts [sic] sentence. The defendant could also appeal his sentence if the government does not appeal, but if this Court was to sentence the defendant in excess of the statutory maximum of any of the particular counts, or if this Court was to erroneously depart upwards pursuant to the guidelines, or if this Court was to[,] exercising [its] discretion pursuant to Booker, impose an unreasonable sentence that is above the final guideline range determined by the Court.

If any of those conditions were to apply, the defendant would be able to appeal. Otherwise he waives his right to appeal any other matter.*fn22

After reviewing the essential terms of the plea agreement with Petitioner's counsel and counsel for the Government, the Court then entered into a colloquy with the Petitioner. Petitioner confirmed that he had reviewed, signed, and discussed the plea agreement with his counsel:

The Court: . . . . Are these essentially the terms of your plea agreement as you understand them to be?

The Defendant: Yes, Your Honor.

The Court: And did you review your plea agreement? The written plea agreement, did you read it?

The Defendant: I did, Your Honor.

The Court: Did you review that plea agreement with your attorneys? ...


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