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United States of America v. Brian Geller

February 7, 2012

UNITED STATES OF AMERICA
v.
BRIAN GELLER



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

MEMORANDUM

Defendant Brian Geller has filed a pro se Motion pursuant to 28 U.S.C. § 2255 challenging his sentence of 69 months' imprisonment. The Government has filed a Motion to Dismiss Geller's § 2255 Motion. For the following reasons, we grant the Government's Motion and dismiss Geller's § 2255 Motion.

I. BACKGROUND

Geller was employed by JP Morgan Chase in its private banking services division. From June 2005 through April 2009, he used his position to steal more than $1.8 million, by transferring the money from JP Morgan's accounts into his or a family member's personal accounts. On January 10, 2011, he pled guilty to bank fraud in violation of 18 U.S.C. § 1344; two counts of making a monetary transaction of over $10,000 with criminal proceeds in violation of 18 U.S.C. § 1957; and one count of tax evasion in violation of 26 U.S.C. § 7201. As part of his Guilty Plea Agreement; he agreed to waive his right to appeal and to collaterally attack his conviction and sentence. On May 2, 2011, we sentenced Geller to 69 months' imprisonment, varying downward from his Sentencing Guidelines range of 78 to 97 months.

Geller raises three challenges to the length of his sentence: 1) that there is a discrepancy between the sentence imposed and what we intended to impose; 2) his sentence violates his constitutional right to equal protection because he is ineligible for any sentence reduction based on participation in a substance abuse program; and 3) due to prison overcrowding, he is unable to get the rehabilitative help he needs.

II. LEGAL STANDARD

The Government has moved to dismiss Geller's § 2255 Motion on the ground that Geller waived his right to collaterally attack his sentence in his Guilty Plea Agreement. The United States Court of Appeals for the Third Circuit has held that a defendant's waiver of appellate or collateral attack rights is enforceable provided that (1) it was entered into knowingly and voluntarily; (2) no specific exception set forth in the agreement applies; and (3) enforcement of the waiver would not work a miscarriage of justice. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (citing United States v. Jackson, 523 F.3d 234, 243-44 (3d Cir. 2008)); see also United States v. Shedrick, 493 F.3d 292, 297-98 (3d Cir. 2007); United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001).

III. DISCUSSION

A. Knowing and Voluntary Waiver

We first "consider whether there is record evidence that [Geller] knowingly and voluntarily signed the waiver." United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). In making this determination, we look to the language of the waiver and to the guilty plea colloquy. See United States v. Mabry, 536 F.3d 231, 238 (3d Cir. 2008) (citing Gwinnett, 483 F.3d at 203-04).

The language of the waiver in Geller's Guilty Plea Agreement is clear: "the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter . . . under . . . 28 U.S.C. § 2255." (Guilty Plea Agreement ¶ 13.) The Guilty Plea Agreement also states that defendant "acknowledges his waiver of rights," (Id. ¶ 1), and that "the defendant and [his] lawyer have fully discussed this plea agreement." (Id. ¶ 15).

Prior to accepting Geller's guilty plea, we conducted a plea colloquy pursuant to Federal Rule of Criminal Procedure 11, which provides as follows:

Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the ...


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