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United States v. Robinson

United States District Court, W.D. Pennsylvania

September 5, 2019

UNITED STATES OF AMERICA,
v.
CLINTON ROBINSON, Defendant.

          MEMORANDUM OPINION

          NORA BARRY FISCHER SENIOR UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This matter is before the Court on a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (“§ 2255 Motion”) filed by pro se Defendant Clinton Robinson (“Defendant”) (Docket No. 448), which is opposed by the Government. (Docket No. 483). Defendant claims that his counsel was ineffective because he inaccurately predicted Defendant's criminal history category and seeks to vacate his sentence of 96 months' incarceration for his controlled substance offense convictions. For the following reasons, Defendant's ineffectiveness claim lacks merit and will be denied. However, Defendant's broad statement that his counsel allegedly did not inquire with him about an appeal lacks clarity, and he will be given leave to file an amended motion on that issue only, if he believes such course is warranted.

         II. Background and Procedural History

         On August 30, 2016, Defendant was charged at Count One of the Indictment in this case with conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, contrary to the provisions of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i), in violation of 21 U.S.C. § 846, and at Count Two with attempt to distribute and possess with intent to distribute 100 grams or more of heroin, contrary to the provisions of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(i), in violation of 21 U.S.C. § 846 (Docket No. 1). Defendant initially was represented by Assistant Federal Public Defender Linda Cohn; however, Ms. Cohn withdrew as counsel when Attorney Michael J. DeRiso entered his appearance as Defendant's retained counsel on December 14, 2016. (Docket No. 106). Attorney DeRiso represented Defendant throughout the pendency of the proceedings before this Court.

         On May 22, 2017, the Court conducted a change of plea hearing in Defendant's case. Based on Defendant's responses to the Court's inquiries, the Court found that he was competent to participate in the hearing and to plead guilty if that was his intent. (Docket No. 482 at 6). Among other matters, the Court and the parties examined the terms of their Rule 11(c)(1)(C) plea agreement. Pursuant to that agreement, Defendant would plead guilty to a lesser included offense at Count One of the Indictment, that is, conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin, and to Count Two, and the parties stipulated that Defendant was responsible for more than 700 grams but less than one kilogram of heroin. (Docket No. 483-1, ¶¶ A.1; C.2). In addition, the Government agreed not to file an Information pursuant to 21 U.S.C. § 851, stating a prior conviction as a basis for increased punishment, and Defendant agreed to waive his right to take a direct appeal from his conviction or sentence, except under certain limited circumstances. (Id. ¶¶ A.8, B.3). The plea agreement also specified that Defendant was subject to a statutory penalty of not less than five (5) years and not more than forty (40) years' imprisonment at each of the lesser included offense at Count One and Count Two. (Id. ¶ C.1). Finally, pursuant to Rule 11(c)(1)(C), the parties stipulated and agreed that the appropriate sentence was 96 months' imprisonment, a four-year term of supervised release, a fine, if any, in an amount to be determined by the Court and a special assessment of $200. (Id. ¶ C.3).

         Following the extensive change of plea colloquy, the Court determined that Defendant understood the nature of the charges against him, all of the elements of the offenses to which he was pleading guilty and the potential statutory penalties he was subject to for such violations, [1] the constitutional and statutory rights he was waiving by entering guilty pleas, and all of the terms and conditions of the plea agreement. (Docket No. 482 at 10-26, 28-29, 37-38). Defendant further assured the Court that he understood that the sentencing guidelines are only advisory and that the Court could impose a sentence outside of the advisory guidelines range but within the applicable statutory minimum and/or maximum penalties. (Id. at 31). Defendant also confirmed that he understood the Court was not bound by any sentencing recommendation that his counsel or anyone else may have suggested to him and that the Court could sentence him up to the maximum sentence permitted by statute. (Id. at 36-37). He acknowledged that no one had promised him what his actual sentence would be, forced him to plead guilty, or made any promises to him outside of the terms and conditions set forth in the plea agreement. (Id. at 45-47). During the hearing, Defendant twice asserted under oath that he was satisfied with Attorney DeRiso's representation. (Id. at 6, 47). Ultimately, the Court accepted Defendant's pleas and entered a judgment of guilty as to the lesser included offense at Count One of the Indictment and Count Two. (Id. at 49).

         The Court held a sentencing hearing on February 9, 2018.[2] The Court confirmed with Defendant that he read the Presentence Investigation Report (“PIR”) issued by the Probation Office, the Addendum thereto and the Court's Tentative Findings and Rulings, he reviewed those documents with Attorney DeRiso, who answered any questions Defendant had concerning them, and he did not have any questions for the Court about those documents. The Court noted that the PIR and the Tentative Findings indicated that Defendant had a total offense level of 25 and a criminal history category of II, which provided for an advisory guidelines range of 63 to 78 months' imprisonment. (Docket Nos. 208, 213). However, the Court also noted that the parties stipulated in the plea agreement that the appropriate sentence in Defendant's case was 96 months' imprisonment and four (4) years' supervised release.

         Attorney DeRiso correctly observed at the sentencing hearing that Defendant's guilty plea to a lesser include offense at Count One of the Indictment reduced the mandatory minimum term of imprisonment from ten (10) years to five (5) years. As Attorney DeRiso noted, Defendant would have faced a ten-year mandatory term of imprisonment if the Government had filed an Information pursuant to 21 U.S.C. § 851, but it did not do so in accordance with the plea agreement.[3] Attorney DeRiso explained that background provided the basis for the stipulated sentence of 96 months' imprisonment, which both parties asked the Court to accept. Defendant did not raise any questions or concerns about the stipulated sentence at any point during the hearing, nor did he express any dissatisfaction with Attorney DeRiso's representation. He did, however, make a statement in which he apologized to the Court and his family and friends for his conduct and accepted responsibility for same.

         In consideration of the facts and circumstances of Defendant's case, the parties' positions and Defendant's statement, the Court accepted the parties' Rule 11(c)(1)(C) plea agreement. The Court recognized that the agreed-upon sentence of 96 months' imprisonment represented a variance above the advisory guidelines range of 63 to 78 months' imprisonment, but explained that such sentence was warranted because of Defendant's role in the serious heroin trafficking offenses and other relevant factors under 18 U.S.C. § 3553(a).[4] Further, the Court explained that Defendant avoided much more significant penalties by entering into the Rule 11(c)(1)(C) plea agreement. As it were, Defendant was subject to a statutory mandatory minimum term of five (5) years and up to forty (40) years' imprisonment. But for the plea agreement, the Government could have filed an Information pursuant to 21 U.S.C. § 851, thereby subjecting Defendant to a mandatory minimum term of ten (10) years and up to life imprisonment. The higher mandatory term of ten (10) years and up to life imprisonment also would have applied if the parties had not reached the agreement permitting Defendant to plead guilty to the lesser included offense at Count One of the Indictment. In that event, if the Government had filed a § 851 Information, Defendant would have faced a mandatory term of twenty (20) years and up to life imprisonment under the law as it existed at that time. In view of the parties' agreement and other relevant § 3553(a) factors the Court addressed, the Court sentenced Defendant to 96 months' imprisonment in accordance with the Rule 11(c)(1)(C) plea agreement.

         At the conclusion of the sentencing hearing, the Court advised Defendant of his appellate rights, including the fact that a notice of appeal must be filed within 14 days after the entry of judgment. Defendant did not file a direct appeal of his conviction or sentence.

         On February 8, 2019, Defendant filed the § 2255 Motion arguing that Attorney DeRiso was ineffective in representing him because he incorrectly predicted that Defendant's criminal history category would be III or IV, but the PIR subsequently revealed that it was category II. (Docket No. 448, ¶¶ 16, 17). Defendant now claims that Attorney DeRiso's prediction was “pivotal” in his decision to plead guilty pursuant to the Rule 11(c)(1)(C) plea agreement, and he suggests that he would not have assented to the agreement if Attorney DeRiso had provided an accurate prediction. (Id. ¶¶ 16-19).

         On February 11, 2019, the Court entered its standard order pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999), advising Defendant that all federal constitutional claims had to be included in a single habeas corpus petition and of his right to: (1) withdraw the pending motion and file one new, all-inclusive § 2255 motion setting forth every ground which may entitle him to relief from his conviction and sentence, provided that such motion is timely; (2) amend the § 2255 motion presently on file to include any additional claims or materials he wished to raise; or (3) choose to proceed with the motion as filed. (Docket No. 450 at 1-2). The order specified that Defendant was required to notify the Court in writing of his choice within 30 days of the date of the order. (Id. at 2). If Defendant did not respond within that time, the Court would proceed to decide the § 2255 Motion as filed. (Id.).

         Defendant did not respond to the Court's Miller notice; thus, the Government was ordered to respond to Defendant's § 2255 motion. After obtaining an extension of time, the Government filed its response on May 23, 2019, arguing that Defendant is not entitled to § 2255 ...


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