Opinion
00-CV-0902 (RR)
May 19, 2000
JOSEPH COLMONE, Inmate No. 49662-053, FPC Allenwood Montgomery, Pennsylvania, Petitioner Pro Se.
HONORABLE LORETTA E. LYNCH, UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK, Brooklyn, New York, By: Paul Weinstein Assistant United States Attorney, Attorney for Respondent.
Memorandum and ORDER
Joseph Colmone, proceeding pro se, petitions this court to correct his sentence pursuant to 28 U.S.C. § 2255. Colmone pleaded guilty on September 4, 1998 before Magistrate Judge John L. Caden to conspiracy to distribute cocaine. See United States v. Colmone, et al., 98 CR 249 (RR). On March 5, 1999, this court accepted Colmone's plea and sentenced him to 78-months' incarceration.
Colmone did not appeal his conviction or sentence. Instead, on February 9, 2000, he filed this collateral challenge, asserting that: (1) this court erred when it calculated his guidelines without awarding a 2-level reduction under U.S.S.G. § 2D1.1(b)(6) as provided for in petitioner's plea agreement, (2) defense counsel was constitutionally ineffective for failing to bring this matter to the court's prompt attention at sentencing, and (3) the prosecutor and defense counsel wrongfully induced his guilty plea with promises that he would not receive a sentence of more than 5-years' incarceration.
Having carefully reviewed the submissions of the parties as well as the record in the original case, this court concludes that the petition must be denied both because Colmone waived any direct or appellate challenge to the sentence imposed and because his claims are without merit.
Discussion
I. Plea Agreement Waiver
Colmone pleaded guilty pursuant to a written agreement with the United States Attorney's office, ¶ 4 of which provides:
The defendant will not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a sentence within or below the range of imprisonment set forth in paragraph 2. This waiver is binding on the defendant even if the Court employs a Guidelines analysis different from that set forth in paragraph 2.
Exh. A to Pet. In ¶ 2, the prosecution estimated that Colmone's sentencing range would be 63-78 months' incarceration. Since this court's 78-month sentence is within that range, Colmone's § 2255 petition must be denied as barred by his plea agreement. See United States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995) (holding that a knowing and voluntary waiver of the right to appeal precludes a defendant from appealing a sentence that falls within the range specified in the plea agreement); United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (refusing to allow defendant who expressly waived right to appeal sentence within predicted guideline range to challenge sentence in § 2255 petition: "Whatever linguistic distinction maybe made between an `appeal' and a § 2255 petition, we are loathe to countenance so obvious a circumvention of a plea agreement"); Yoon v. United States, 2000 WL 516403, at *2 (E.D.N.Y. March 17, 2000) (RR) (rejecting § 2255 challenge by defendant who had knowingly and voluntarily waived his right to appeal or challenge any sentence falling within the stipulated guideline range); Defex v. United States, 1998 WE 812572, at *2 (E.D.N.Y. May 19, 1998) (JG) (defendant who expressly waives appellate review of sentence cannot obtain review under § 2255); LaSalle v. United States, 1998 WL 781185, at *1 (S.D.N.Y. Feb. 24, 1998) (AGS) (rejecting § 2255 challenge by defendant who had knowingly and voluntarily waived his right to appeal or challenge any sentence falling within the stipulated guideline range); see also Jones v. United States, 167 F.3d 1142, 1144-45 (7th Cir. 1999) (holding that same principles applied to assessing the validity of plea agreement waivers of § 2255 review as applied to waivers of direct appeal); United States v. Abarca, 985 F.2d 1012, 1013 (9th Cir. 1993) (dismissing § 2255 challenge to sentence by defendant whose plea agreement waived right to appeal any sentencing issues on condition sentence was imposed within predicted guideline range).
This court calculated Colmone's guidelines by beginning with a base offense level of 32 since the undisputed evidence suggested that he dealt in 5-15 kilograms of cocaine. This level was reduced by three to credit Colmone for prompt acceptance of responsibility. With a criminal history category of I, Colmone's guideline range was found to be 87-108 months in jail. The court then departed the equivalent of one additional guideline level in recognition of Colmone's contribution to the global settlement of a complex case, bringing petitioner into the 78-97 month range.
As the Court of Appeals noted in Yemitan, a waiver of appellate rights might not be enforced if it could be shown that a sentence was so "arbitrary" as to "amount to an abdication of judicial responsibility," or if the sentence was tainted by invidious bias. Id. at 748. Petitioner cannot make any such claims in this case. Indeed, to the extent his challenge is limited to guidelines issues that concern the merits of his sentence, even the dissent in Yemitan thought that such challenges were barred by agreements such as the one Colmone entered into in this case.Id. at 749-50 (Newman, J., dissenting).
Colmone seeks to avoid this result by arguing that his waiver of appellate rights was not knowing and voluntary. Indeed, he submits that he was expressly promised by both his attorney and the prosecutor that his sentence would be no more than five years, that his plea agreement guaranteed him credit under § 2D1.1(b)(6), and that he never understood that he could not appeal if he was sentenced without regard to these promises. These arguments merit little discussion.
Preliminarily, the court notes that there is a serious inconsistency in Colmone's first two arguments insofar as he tries to rely both on unsubstantiated promises by his attorney and the prosecutor and on the prosecution's guideline estimate in the plea agreement. In the plea agreement, the prosecution estimated that if Colmone were given credit under § 2d 1.1(b)(6), he would be sentenced to a prison term between 63-78 months, a range that even at the low end exceeded five-years "incarceration. In sum, the plea agreement on which petitioner relies itself belies his self-serving claim that he pleaded guilty in reliance on any attorney's promise of a sentence of five years or less. Further undermining this claim is the fact that at his plea allocution, Colmone stated
Even if the court were persuaded that any such representations had induced Colmone's plea, it is unlikely that it would reduce his sentence to five years. Fed.R.Crim.P. 11(e)(2) requires the trial court expressly to accept or reject agreements providing for specific sentences, see Fed.R.Crim.P. 11(e)(1)(C), which never happened in this case. Further, the sentencing guidelines do not anticipate acceptance of negotiated sentences below applicable guideline ranges without principled reasons for departure. See U.S.S.G. § 6B1.2 (c)(2). No such reasons are apparent on the present record. Under such circumstances, the more appropriate remedy might well be to give a petitioner back his guilty plea and to put him and the prosecution in the same position they were in before the promises were made. For the reasons stated in the main text of this memorandum, there is no need to consider this option in Colmone's case. under oath that he was not relying on any promises outside the plea agreement in pleading guilty. See Plea Tr. 20.
Indeed, the plea minutes also demonstrate that Colmone clearly understood that even the government's guideline estimates in the plea agreement did not control the court at sentencing. Magistrate Judge Caden emphasized that the prosecution's calculations were useful only in giving petitioner "some idea of how the guideline range may operate in this case." Plea Tr. 15. He made plain that until Colmone appeared for sentencing "before Judge Raggi and she receives a Pre-Sentence Report and hears from you and your lawyer and the Government counsel, you cannot know with certainty what the guidelines will be or whether there will be grounds to depart from them." Id. at 13. Magistrate Judge Caden specifically cautioned Colmone that if "Judge Raggi accepts your guilty plea," petitioner could not withdraw it "even assuming for a moment that the [prosecution's predicted] guideline range which I've just gone over with you proves in hindsight to be erroneous." Id. at 15. Colmone repeatedly assured the magistrate judge that he understood these points.
Magistrate Judge Caden further explained to Colmone that his plea agreement obliged him to give up his right to "appeal or otherwise challenge the conviction or sentence [in his case]" so long as the court did not go above the prosecution's estimate in the plea agreement. Id. at 17. He noted that this waiver applied "even if the Court employs a guidelines analysis different from that set forth" by the prosecution in the plea agreement. Id. Again, Colmone indicated that he understood these conditions and had no questions regarding the scope of the agreement. See id. at 18. Under these circumstances, there is no question that Colmone knowingly and voluntarily waived his right to bring a direct or collateral challenge to any sentence of 78 months or less.
To the extent Colmone faults counsel for not alerting the court to the plea agreement's reference to two-points credit under § 2D1.1 (b)(6), there are two ready responses. First, the record makes plain that the prosecution provided the court with a copy of the plea agreement before sentencing precisely so that it could review the guidelines estimate originally made in the case, see sentencing tr. at 7; thus, petitioner cannot show that he was prejudiced by his counsel's failure to submit this document to the court see Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) (holding that prisoner claiming ineffective assistance of counsel must demonstrate both objectively unreasonable representation and ensuing prejudice). Second, Colmone has totally failed to demonstrate that he was entitled to the consideration provided in § 2D1.1 (b)(6). As the Probation Department noted in ¶ 19 of Colmone's Pre-sentence Report,
In this case the defendant did not make any statement to the Government or the Probation Department concerning the instant offense. As such, a truthful admission of all information that the defendant has concerning the instant offense was not provided, as required by Guideline 5C1.2(5). Consequently, he is not eligible for the two-level reduction authorized by Guideline 2D1.1 (b)(6).
No objection was raised to this paragraph at sentencing by Colmone's counsel, an attorney well-known to the court for his conscientious representation of his clients. In any event, petitioner does not now unequivocally assert that he actually qualified for a § 2D1.1(b)(6) reduction. Instead, he refers more obliquely to a statement by the prosecutor during sentencing referring to "safety valve proffers of the defendants, insinuating that he was among those making such proffers. Sentencing Tr. 6. This court has carefully reviewed the minutes of the sentencing proceeding, as well as the sentencing files of all defendants who were charged with or whose cases related to petitioner's. It is apparent that the prosecutor was referring to proffers by defendantsother than Colmone, which, coincidentally, inured to his benefit in calculating his base offense level. But absolutely nothing in the record indicates that Colmone himself satisfied the requirements for obtaining two-point consideration under § 2D1.1 (b)(6).
Conclusion
Because Colmone's plea agreement bars him from pursuing a direct or collateral challenge to the sentence imposed by this court, his § 2255 petition to correct that sentence must be denied. To the extent petitioner seeks to avoid the limitations of his plea agreement by challenging the voluntariness of his waiver or the representation of his counsel, the court finds that his claims are without merit. Similarly without merit is petitioner's claim that his plea was induced by any verbal promises by the prosecutor and defense counsel as to the sentence he would receive. The petition is denied as is a certificate of appealability.
SO ORDERED.