Opinion
No. 05 Civ. 1843 (LAK), (S3 02 Crim. 479-03 (LAK)).
March 28, 2005
ORDER
On November 15, 2002, movant pleaded guilty to one count of conspiracy to commit robbery affecting interstate commerce, three counts of robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and 2, and one count of brandishing a firearm during robbery in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. As part of her plea agreement, she stipulated to a Sentencing Guidelines range of 162 to 181 months, and waived any right to litigate a sentence within that range under 28 U.S.C. §§ 2241 and 2255. On January 7, 2004, she was sentenced principally to a term of 162 months.
Movant now has filed a motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. She claims that (1) her sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), and, in any event, (2) her plea was defective because she received ineffective assistance of counsel.
Rule 4(b) of the Rules Governing Section 2255 Proceedings obliges this Court to examine the petition and, "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief," to "make an order for its summary dismissal." The present motion must be dismissed as barred by the movant's plea agreement and without merit.
First, movant's Apprendi claim is barred by the terms of her plea agreement. Movant's agreement to the sentence and waiver of any right to appeal from a sentence of 162 to 181 months imprisonment is enforceable. E.g., United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.) (per curiam), cert. denied, 509 U.S. 931 (1993). Having gained the benefit of her plea bargain, movant will not now be permitted to avoid its burdens.
Even were the Court to consider her claim, it would fail. Movant argues that her sentence violates Apprendi because it was enhanced on the basis of facts to which she stipulated, but which were not charged in the indictment. But the Second Circuit has held that where a defendant stipulates to a fact, Apprendi is not implicated because were the issue to be before a jury, it would be bound by the stipulation. United States v. White, 240 F.3d 127, 134 (2d Cir. 2001); United States v. Champion, 234 F.3d 106, 111 n. 3 (2d Cir. 2000); see also Garraway v. United States, No. 01 Civ. 398 (RCC), 2002 WL 1586878 * 4-5 N.Y. July 17, 2002) (holding that the defendant who stipulated to drug quantity had no claim under (Apprendi); Valdez v. United States, No. 00 Civ. 9105, 2001 WL 29998, at *1-2 (S.D.N.Y. Jan. 8, 2001); Lendof v. United States, No. 00 Civ. 4312, 2001 WL 327155, at *9 (S.D.N.Y. Apr.4, 2001).
Movant next seeks to vacate her sentence on the ground that her plea was defective because she received the ineffective assistance of counsel. Specifically, she claims that her lawyer erred in advising her to plead guilty to brandishing a weapon in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2, a crime she was not to have committed. She argues that "[t]here is nothing to suggest that she was aware that a weapon was possessed, much less brandished." Pet. 5
In order to establish that a guilty plea was involuntary due to ineffective assistance of counsel the movant must show that "but for counsel's errors, [she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985) (applying Strickland v. Washington, 466 U.S. 668 (1984)). The record conclusively establishes that movant entered a knowing and voluntary plea.
At movant's plea, the following colloquy took place:
"Court: In connection with the robbery that occurred in Clifton, New Jersey on or about June 3, were you aware that one of the people who was carrying out the robbery was using a firearm?
"Defendant: Yes, sir.
"Court: Was it your understanding that a firearm would be used to threaten the individuals who were to be robbed and to keep them under control during the course of the robbery?
"Defendant: Yes, sir." Transcript of Plea Proceedings, Nov. 15, 2002, at 17.
The conduct to which movant admitted clearly establishes that she aided and abetted accomplices who brandished a weapon in the course of the robbery.
Accordingly, the motion for relief under 28 U.S.C. § 2255 is denied. A certificate of liability is denied and the Court certifies that any appeal herefrom would not be taken in good faith for cases of 28 U.S.C. § 1915(a)(3).
SO ORDERED.