Opinion
3:16-CR-54 3:19-CV-266
08-12-2020
UNITED STATES OF AMERICA v. JULE FUTRELL, Defendant.
( ) MEMORANDUM OPINION
Presently before the court for disposition is Defendant Jule Futrell's pro se motion to vacate and correct his sentence under 28 U.S.C. § 2255. (Doc. 154). For the reasons stated herein, Defendant's motion will be denied and no certificate of appealability will issue.
I. PROCEDURAL HISTORY
Defendant was originally charged with various federal crimes through the filing of a criminal complaint on February 12, 2015. (Doc. 1, Complaint). A four-count Information was subsequently filed against Defendant on March 9, 2016, which charged him with the following crimes: (1) Armed Bank Robbery by Force, Violence, and Intimidation in violation of 18 U.S.C. § 2113(d), relating to an incident that occurred at the First National Community Bank ("FNCB") in Pittston, Pennsylvania on March 13, 2014 ("Count 1"); Armed Bank Robbery by Force, Violence, and Intimidation in violation of 18 U.S.C. § 2113(d), relating to an incident that occurred at the NBT Bank in Scranton, Pennsylvania on November 26, 2014 ("Count 2"); Robbery of Controlled Substances in violation of 18 U.S.C. § 2118(a), relating to an incident that occurred at the CVS Pharmacy in East Stroudsburg, Pennsylvania on April 18, 2014 ("Count 3"); and Brandishing a Firearm in Relation to, and in Furtherance of, a Crime of Violence in violation of 18 U.S.C. § 924(c), relating to the November 26, 2014 robbery at NBT Bank ("Count 4"). (Doc. 95, Information).
On March 21, 2016, pursuant to the terms of a sealed written plea agreement (the "Plea Agreement"), Defendant pleaded guilty to the charges set forth in the Information. (Doc. 98, Plea Agreement; Doc. 109, Guilty Plea). The United States Probation Office then prepared a Presentence Investigation Report ("PSR") regarding Defendant. (Doc. 121, PSR). Based on at least two prior convictions, the PSR designated Defendant as a "career offender" pursuant to § 4B1.1(a), (b)(2) and (c)(2)(A) of the United States Sentencing Guidelines Manual (the "Guidelines" or "U.S.S.G."). (Id., at 15-17). Through his counsel, Defendant filed objections to the PSR and his career offender classification. (Doc. 122, Addendum to PSR). Defendant's counsel withdrew these objections, however, at Defendant's sentencing hearing held on July 12, 2017. (Doc. 146, Sentencing Transcript, July 12, 2017, at 2-3). The Court sentenced Defendant to a two hundred eight (208) month-term of imprisonment, which comprised of the following: one hundred twenty-four (124) months with respect to Counts 1, 2, and 3, to run concurrently; and eighty-four (84) months with respect to Count 4, to run consecutively to Counts 1, 2, and 3. (Doc. 142, Judgment).
On February 14, 2019, Defendant filed the instant pro se motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, followed by a supporting Memorandum of Law on March 25, 2019. (Doc. 154; Doc. 162, Br. in Supp.). In his motion, Defendant raises five (5) ineffective assistance of counsel claims against his trial attorney, Thomas Sundmaker ("Attorney Sundmaker" or "Trial Counsel"). Defendant also raises one (1) ineffective assistance of counsel claim against his appellate attorney, Christy Martin ("Attorney Martin" or "Appellate Counsel"). The Government filed a brief in opposition on May 20, 2019 and answered that Defendant's grounds for relief are without merit. (Doc. 170, Br. in Opp'n). After a lengthy procedural history, Defendant filed a reply brief on November 6, 2019 (Doc. 188, Reply), bringing this case to its present posture.
II. JURISDICTION
As Defendant brings his motion under 28 U.S.C. § 2255, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The court also has jurisdiction pursuant to 28 U.S.C. § 2241 ("Writs of habeas corpus may be granted by . . . the district courts[.]").
III. STANDARD OF REVIEW
A federal prisoner in custody under the sentence of a federal court may, within one year from when the judgment becomes final, move the sentencing court to "vacate, set aside, or correct" a sentence "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). A federal prisoner may also file a § 2255 motion within one year from "[t]he date on which the right asserted was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). A § 2255 motion may attack a federal prisoner's sentence on any of the following grounds: (1) the judgment was rendered without jurisdiction; (2) the sentence imposed was not authorized by law or otherwise open to collateral attack; or (3) there has been such a denial or infringement of the Constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. 28 U.S.C. § 2255(b).
Section 2255 does not, however, afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993). Rather, § 2255 permits relief for an error of law or fact constituting a "fundamental defect which inherently results in complete miscarriage of justice." United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (citing United States v. Addonizio, 442 U.S. 178, 185 (1979)). If the court determines that the sentence was not authorized by law, was unconstitutional, or is otherwise open to collateral attack, the court may vacate the judgment, resentence the prisoner, or grant the prisoner a new trial as appropriate. See 28 U.S.C. § 2255(b).
Generally, the petitioner bears the burden of proof in § 2255 proceedings. See United States v. Hollis, 569 F.2d 199, 205 (3d Cir. 1977). However, in cases that involve predicate offenses supporting a petitioner's career offender status, courts have determined that the burden remains with the government to show the validity of the career offender designation. United States v. Harris, 205 F. Supp. 3d 651, 662 (M.D. Pa. 2016); United States v. Evans, No. 02-CR-1, 2015 WL 9480097, at *2 (W.D. Pa. Dec. 29, 2015).
A. Standard of Review for Ineffective Assistance of Counsel Claims
As mentioned supra, the instant petition raises issues of ineffectiveness of counsel. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel. U.S. CONST. AMEND. VI. In Strickland v. Washington, the United States Supreme Court determined that "'the right to counsel is the right to the effective assistance of counsel.'" 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Counsel is ineffective when "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. As such, to succeed on an ineffectiveness claim under Strickland, a defendant must convince the court of two factors: 1) deficient performance by counsel; and 2) prejudice from that deficient performance. Id. at 687.
Satisfying the first factor requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. In assessing an attorney's performance, courts apply a highly deferential level of scrutiny. See Marshall v. Cathel, 428 F.3d 452, 462 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). This deference is afforded because "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.
To satisfy the second factor, "the defendant must show that the deficient performance prejudiced the defense" by demonstrating that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Put another way, "the party claiming ineffective assistance 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Campbell v. Burris, 515 F.3d 172, 184 (3d Cir. 2008) (quoting Strickland, 422 U.S. at 694). "In the sentencing context, prejudice exists where the deficient performance affected a defendant's sentence." United States v. Hankerson, 496 F.3d 303, 310-11 (3d Cir. 2007) (citing Glover v. United States, 531 U.S. 198, 203-04 (2001)); see e.g. United States v. Otero, 502 F.3d 331, 337 (3d Cir. 2007) (finding that "[t]he prejudice prong is satisfied 'when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing . . . which would not have occurred but for counsel's error"). However, "'[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings . . . not every error that conceivably could have influenced the outcome undermines the reliability of the proceeding.'" Id. (quoting Strickland, 466 U.S. at 693).
Further, counsel cannot be held to be ineffective for failing to pursue a meritless issue. Werts v. Vaughan, 228 F.3d 178, 203 (3d Cir. 2000). In nearly all cases, relief under § 2255 for ineffectiveness of counsel is only available to defendants who make adequate showings with respect to both factors of the Strickland test. See Strickland, 466 U.S. at 686. "Where the record is sufficient to allow determination of ineffective assistance of counsel, an evidentiary hearing to develop the facts is not needed." United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991) (citing Government of Virgin Islands v. Zepp, 748 F.2d 125, 133 (3d Cir.1984)); see also Campbell, 515 F.3d at 183 ("'[T]o merit a hearing, a claim for ineffective assistance of counsel, accepting the veracity of its allegations, must satisfy both prongs of the Strickland test, deficient counsel and prejudice to the defense.'" (quoting Wells v. Petsock, 941 F.2d 253, 559-60 (3d Cir. 1991))).
IV. ANALYSIS
Defendant raises six (6) grounds for relief in his § 2255 petition. Specifically, Defendant asserts that Attorney Sundmaker provided ineffective assistance of counsel in the following respects: by assisting the prosecutor in violating Defendant's Fifth Amendment right to Due Process through coercion, intimidation, and threats ("Ground One"); by failing to challenge Defendant's career offender classification under U.S.S.G. § 4B1.1, the PSR's four-level enhancement for "abduction," and the lack of supporting Shepard-approved documents at sentencing ("Ground Two"); by failing to provide Defendant with a final copy of the PSR and misleading him about the calculation of his sentence ("Ground Three"); by failing to object to the Government's alleged prosecutorial misconduct ("Ground Four"); and by failing to challenge the Plea Agreement on vagueness grounds and not arguing against the application of the mandatory minimum consecutive sentence under 18 U.S.C. § 924(c) ("Ground Six"). Defendant also raises an ineffective assistance of counsel claim against his Appellate Counsel for advising Defendant to withdraw his appeal and for failing to challenge the Court's career offender designation on direct review ("Ground Five"). The Court will address each issue in turn.
A. Ground Two
Although Defendant presents his claims in a different order, the Court will address Ground Two first, as its resolution impacts the disposition of Grounds One, Four, and Five.
In his motion, Defendant argues that Attorney Sundmaker displayed ineffective assistance of counsel by failing to object to the PSR's career offender designation under U.S.S.G. § 4B1.1, four (4) level abduction enhancement under U.S.S.G. § 2B3.1(b)(4)(A), and lack of Shepard-approved documents to support his career offender enhancement. (Doc. 154, at 5, 22-27). The Government responds that Defendant's claims lack merit and should be denied. (Doc. 170, Br. in Opp'n at 16-33). After careful review, the Court agrees with the Government.
1. Defendant's Career Offender Designation
As discussed supra, the PSR classified Defendant as a career offender pursuant to U.S.S.G. § 4B1.1. (Doc. 121, PSR at 15). Under this provision of the Guidelines, a defendant is properly classified as a career offender if:
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1
Of relevance here, the Guidelines define "a crime of violence" as "an offense . . . punishable by imprisonment for a term exceeding one year" that (1) "has an element the use, attempted use, or threatened use of physical force against the person of another" or (2) "is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm . . . or explosive material . . . ." U.S.S.G. § 4B1.2(a). Accordingly, a defendant's conviction can qualify as a crime of violence pursuant to either the "Elements Clause" articulated at U.S.S.G. § 4B1.2(a)(1) or the "Enumerated Offenses Clause" articulated at U.S.S.G. § 4B(1).2(a)(2). See United States v. Bullock, No. 4:16-CR-00264, 2017 WL 5593315, at *2 (M.D. Pa. Nov. 21, 2017).
On August 1, 2016, the Sentencing Commission amended the term "crime of violence" to include "robbery" as an enumerated offense under U.S.S.G. § 4B1.2(a)(2). See U.S. Sentencing Commission, Sentencing Guideline Amend. 798, at 1 (Jan. 21, 2016), http://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20160121_RF.pdf. The 2016 Amendments also omitted the "residual clause" previously found at § 4B1.2(a)(2), which included any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at 2.
The Court notes that the PSR used the 2016 Guidelines Manual, which incorporated all guideline amendments, to calculate Defendant's offense level and guidelines range. (Doc. 121, PSR at 12). Generally, there is no ex post facto violation "when a defendant is sentenced under the Guidelines promulgated after he committed his criminal acts" when the new version does not provide "a higher applicable Guidelines sentencing range than the version in place at the time of the offense." See Peugh v. United States, 569 U.S. 530, 533 (2013). As discussed infra, Defendant's prior convictions qualify as predicate offenses under the Elements Clause of U.S.S.G. § 4B1.2(a)(1). Thus, the application of U.S.S.G. § 4B1.2(a), either pre or post-2016 Amendments, does not alter Defendant's career offender designation here. See United States v. Parks, 237 F. Supp. 3d 229, 233 (M.D. Pa. 2017) (reasoning that it would not matter whether the 2015 or 2016 Guidelines were applied, as the language of § 4B1.2(a)(1) remained the same and the earlier version of § 4B1.2(a)(2) "included robbery as an enumerated offense in the commentary and the commentary can be used to determine robbery is a crime of violence").
A review of the PSR reveals that Defendant's career offender designation was based on the following prior convictions:
(1) A 1997 conviction in Syracuse, New York for attempted robbery (2nd Degree) in violation of N.Y. Penal Law § 160.10 (the "New York Conviction"); and
(2) A 1999 conviction in Phoenix, Arizona for attempted armed robbery (non-dangerous) (the "Arizona Conviction").
(Doc. 121, PSR at 16-17, ¶¶ 73-74; Doc. 162, Br. in Supp. at 63).
In his motion, Defendant argues that neither the New York Conviction nor the Arizona Conviction constitute crimes of violence that support the application of the Career Offender designation. (Doc. 154, at 22-25). Upon review, the Court finds that Defendant's position lacks merit, and thus cannot form the basis of an ineffectiveness claim against Attorney Sundmaker.
a. The New York Conviction
As mentioned supra, the Elements Clause enumerated at U.S.S.G. § 4B1.2(a)(1) defines a "crime of violence" as any offense that "has an element the use, attempted use, or threatened use of physical force against the person of another." To determine whether a prior state conviction constitutes a "crime of violence" under this provision, the sentencing court must apply a "categorical approach." See United States v. Brown, 765 F.3d 185, 188-89 (3d Cir. 2014), as amended (Nov. 4, 2014) (citations omitted). Under the categorical approach, courts "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the 'generic' crime—i.e., the offense as commonly understood." Id. at 189. In making this determination, courts "look only to the statutory definitions—i.e., the elements—of a defendant's . . . offense, and not to the particular facts underlying the conviction." United States v. Lewis, 720 F. App'x 111, 114 (3d Cir.), cert. denied, 138 S. Ct. 2013 (2018) (quoting United States v. Chapman, 866 F.3d 129, 134 (3d Cir. 2017)).
Here, Defendant has a prior conviction from New York state for attempted robbery (2nd Degree) in violation of N.Y. Penal Law § 160.10. It is well settled that New York attempted robbery in the second degree categorically constitutes a crime of violence pursuant to U.S.S.G. § 4B1.2(a)(1). See United States v. Pereira-Gomez, 903 F.3d 155, 166 (2d Cir. 2018), cert. denied, 139 S. Ct. 1600 (2019) (holding that robbery and attempted robbery "in any degree under New York Law are 'crimes of violence'" under § 2L1.2 of the Guidelines, which relies on a definition for "crime of violence" that is indistinguishable from that used in § 4B1.2(a)(1)); accord United States v. Brown, 945 F.3d 72, 76 (2d Cir. 2019); United States v. Dupree, 767 F. App'x 181, 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 474 (2019) (holding that a defendant's convictions for attempted robbery in the second degree under N.Y. Penal Law § 160.10 is categorically a "crime of violence" under U.S.S.G. § 2K2.1, which has the same meaning given to the term "crime of violence" under U.S.S.G. § 4B1.2(a)(1)); United States v. Johnson, 768 F. App'x 64, 65 (2d Cir. 2019) (holding that New York second-degree robbery is a crime of violence under U.S.S.G. 4B1.2(a)(1), as the "New York robbery statute's definition of 'forcible stealing' requires sufficient force to overcome the victim's resistance" and is not inconsistent with "violent force" as contemplated by the Supreme Court in Johnson v. United States, 559 U.S. 133 (2010)). Accordingly, contrary to Defendant's claim, the PSR properly classified the New York Conviction as a predicate offense for the purposes of Defendant's career criminal designation. As objecting to this determination would have been meritless, Defendant's ineffectiveness claim against Attorney Sundmaker is unavailing.
Although the record does not make clear which specific subsection of N.Y. Penal Law § 160.10 Defendant was convicted under, this does not impact the Court's conclusion. See United States v. Pereira-Gomez, 903 F.3d 155, 166 (2d Cir. 2018), cert. denied, 139 S. Ct. 1600 (2019) (noting that the armed robbery statute enumerated at § 160.10 necessarily involves the forcible stealing of property as required for robbery under § 160.00).
Because the New York Conviction qualifies as a "crime of violence" under the Elements Clause, the Court declines to consider whether it also qualifies as a predicate offense under the Enumerated Offenses Clause.
b. The Arizona Conviction
Defendant next argues that the Arizona Conviction does not qualify as a predicate offense under the Elements Clause, as the statutory definition of Arizona armed robbery does not require the degree of "violent force" that is necessary to constitute a crime of violence. (Doc. 162, Br. in Supp. at 19-20). In support of his position, Defendant cites to Johnson v. United States, 559 U.S. 133 (2010), which evaluated the definition of "physical force" under 18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court held that, to qualify as a "violent felony" under the Elements Clause of the ACCA, "'physical force' means violent force—i.e., force capable of causing physical pain or injury to another person." Johnson, 599 U.S. at 134.
Under this provision, similar to the Elements Clause of the U.S.S.G., a violent felony "has an element the use, attempted use, or threatened use of physical force against the person of another . . . ." 18 U.S.C. § 924(e)(2)(B)(i).
Defendant also refers to United States v. Molinar, 881 F.3d 1064 (9th Cir. 2017), in which the United States Court of Appeals for the Ninth Circuit applied the categorical approach to the Arizona robbery and armed robbery statutes at issue. The Molinar court noted that the statutory definition of "force" under A.R.S. §§ 13-1901(1) and 13-1902(A) had "not been narrowed by Arizona courts other than by clarifying that the force must be 'intended to overpower the party robbed.'" Id. at 1069. Reasoning that even the minimal application of force could satisfy this definition, the court found that Arizona convictions for robbery and armed robbery did "not require the threat or use of Johnson-level force." Id. at 1069-70. As such, based on its interpretation of Johnson, the court held that robbery and armed robbery under Arizona Law could "no longer be considered [] categorical crime[s] of violence under Section 4B1.2's [Elements] clause." Id. at 1069-70.
The Court noted that Arizona armed robbery was "indistinguishable from [Arizona] robbery for the purposes of the categorical analysis under the [Elements] clause." United States v. Molinar, 881 F.3d 1064, 1069 (9th Cir. 2017) (citing United States v. Parnell, 818 F.3d 974, 978-80 (9th Cir. 2016)). As such, it focused its analysis on whether robbery under A.R.S. § 13-1902 involved "violent force" as defined under Johnson. Id.
The Supreme Court subsequently revisited the Johnson decision in Stokeling v. United States, however, and clarified that the Elements Clause of the ACCA "encompasses robbery offenses that require the criminal to overcome the victim's resistance[,] [however slight.]" 139 S. Ct. 544, 550 (2019). Significantly, at least one other Ninth Circuit case has indicated that Stokeling "effectively overruled" the "prior distinction between 'substantial' and 'minimal' force in the ACCA robbery context in such cases as Molinar . . . ." Ward v. United States, 936 F.3d 914, 919 (9th Cir. 2019); accord United States v. Dominguez, 954 F.3d 1251, 1259 (9th Cir. 2020). Accordingly, the Court finds that the conclusion in Molinar upon which Defendant relies is unpersuasive in this case.
At issue is thus whether the Arizona Conviction required the "threatened use of physical force against the person of another" as contemplated under the Guideline's Elements Clause. Pursuant to Arizona law:
A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.
A.R.S. § 13-1902(A).
As used in this statute, "force" is defined as "any physical act directed against a person as a means of gaining control of property." A.R.S. § 13-1901(1). A person commits armed robbery if, while committing robbery under A.R.S. § 13-1902, he "is armed with a deadly weapon or a simulated deadly weapon" or "uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon." A.R.S. § 13-1904.
Of relevance here, Arizona state courts have interpreted robbery as requiring the use of "force or a threat of imminent physical injury sufficient to overpower the party robbed." See State v. Garza Rodriguez, 791 P.2d 633, 637 (Ariz. 1990) (en banc); see also State v. Bishop, 698 P.2d 1240, 1243 (Ariz. 1985) (concluding that "'[f]orce' sufficient to constitute robbery may either be before, or at the time of the taking, and it must be of such a nature as to show that it was intended to overpower the party robbed."). Indeed, "[u]nless some physical act, including a verbal threat, [i]s used to coerce the surrender of property, a person can only be found guilty of theft." Id.; see also Bauer v. State, , 43 P.2d 203, 205-06 (Ariz. 1935) (holding that defendant's use of force was sufficient to sustain a robbery conviction when the victim struggled to maintain control of the property being stolen); Lear v. State, 6 P.2d 426, 427 (Ariz. 1931) (noting that, to constitute robbery, "the force used must be either before, or at the time of the taking, and must be of such a nature as to show that it was intended to overpower the party robbed, and prevent his resisting, and not merely to get possession of the property stolen.'"). As such, both the Arizona robbery and armed robbery statutes require the use or threatened use of force to overcome a victim's resistance. Under Stokeling, such force comports with Johnson's definition of "violent force" and the federal definition of a "crime of violence" under U.S.S.G. § 4B1.2(a)(1).
Notably, "Stokeling made clear that force involved in snatchings, where there is no resistance, is not sufficient to fall under the ACCA's [Elements] clause." Ward, 936 F.3d at 919 n.4. Like the robbery statute at issue in Stokeling, the mere "snatching of a thing is not looked upon as a taking by force" as required to support a robbery conviction under Arizona law. See Bauer, 43 P.2d at 205 ("[E]ven though the snatching of a thing is not looked upon as a taking by force, it is otherwise where there is a struggle to keep it."); see also State v. Lee, 917 P.2d 692, 700 (Ariz. 1996) ("Fear of force is an element of robbery and the conviction of robbery presumes that such fear was present." (quoting State v. Watson, 586 P.2d 1253, 1260 (Ariz. 1978))); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (explaining that, under the categorical approach, whether a state statute "creates a crime outside the generic definition" of its federal counterpart requires "a realistic probability that the State would apply its statute to conduct that falls outside the generic definition of a crime.").
For these reasons, Defendant has two prior convictions of "crimes of violence" for the purposes of the Guideline's Career Offender provision. See U.S.S.G. § 4B1.1. Defendant therefore cannot fault Attorney Sundmaker for failing to challenge his career criminal classification, which was properly based on both the New York Conviction and the Arizona Conviction. See U.S.S.G. § 4B1.2(a)(1); Werts v. Vaughan, 228 F.3d 178, 203 (3d Cir. 2000) (holding that counsel cannot be deemed ineffective for failing to pursue a meritless issue); cf. Jansen v. United States, 369 F.3d 237, 244 (3d Cir. 2004) ("[w]here defense counsel fails to object to an improper enhancement under the Sentencing Guidelines, counsel has rendered ineffective assistance."). Nor can Defendant demonstrate that any such failure prejudiced him, as required to satisfy the second prong of Strickland. See United States v. Gardner, No. CIV. 02-238, 2003 WL 21146727, at *8 (W.D. Pa. Mar. 12, 2003) ("[R]egardless what actions [defendant]'s sentencing counsel took or did not take concerning this Court's application of the "career offender" enhancement, counsel's conduct cannot be considered deficient because it is clear that [defendant] is a "career offender" within the meaning of [U.S.S.G.] § 4B1.1."). Therefore, Defendant's ineffectiveness claim against Attorney Sundmaker will be denied.
2. The PSR's Four (4) Level Abduction Enhancement
Defendant also submits that Attorney Sundmaker was ineffective for failing to object to the PSR's application of the 4-level abduction enhancement under U.S.S.G. § 2B3.1(b)(4)(a). (Doc. 154, at 5, 24-25). Defendant argues that he was never made aware of the basis for this enhancement, as the sentencing memorandum only included a two-level increase for "restraint" under U.S.S.G. § 2B3.1(b)(4)(a). (Doc. 154, at 25; Doc. 162, Br. in Supp. at 25-26). The Government responds that the abduction enhancement was proper here, and that Attorney Sundmaker cannot be deemed ineffective for failing to challenge its application. (Doc. 170, Br. in Opp'n at 30).
Pursuant to U.S.S.G. § 2B3.1(b)(4)(1), "[i]f any person was abducted to facilitate commission of the offense or to facilitate escape," a defendant's offense level is enhanced by four (4) points. According to the PSR, the four (4) level abduction enhancement was applied with respect to the FNCB robbery (charged at Count 1). (Doc. 121, PSR at 13, ¶ 41). Attorney Sundmaker's subsequent sentencing memorandum, however, accounted for a two (2) level restraint enhancement under Count 1 instead of a four (4) level abduction enhancement. Cf. (Doc. 137, Sentencing Memorandum at 2) with (Doc. 121, PSR at 13, ¶ 41).
When a defendant "physically restrain[s]" any person to facilitate the commission of an offense or escape, a two (2) level enhancement is applied. U.S.S.G. 2B3.1 (b)(4)(1). "Physically restrained" is defined as "the forcible restraint of the victim such as by being tied, bound, or locked up." U.S.S.G. § 1B1.1 cmt. n. 1(K).
The Court need not address the underlying merits of this claim, because, regardless of whether Attorney Sundmaker mistakenly referenced a two (2) level restraint enhancement in the Sentencing Memorandum, Defendant's guideline range was ultimately controlled by his status as a career criminal. With respect to Count 1, where the abduction enhancement was applied, the PSR performed the following calculations:
| Base Offense Level for an offense under 18 U.S.C. § 2113(a): | 20 |
|---|---|
| Enhancement for taking property from a financial institution: | + 2 |
| Enhancement for brandishing of a firearm: | + 5 |
| Enhancement for abducting victims to facilitate the offense: | + 4 |
| Enhancement for amount of loss: | + 1 |
| Total adjusted offense level (for Count 1): | 32 |
(Doc. 121, PSR at 13, ¶¶ 38-46).
After applying U.S.S.G. § 3D1.4 to account for Counts 1, 2, and 3, the PSR determined that Defendant had a combined adjusted offense level of thirty-two (32). (Id. at 15, ¶ 65). Because Defendant qualified as a "career offender," however, the PSR increased Defendant's offense level to thirty-four (34). (Id. at 15, ¶ 66). Finally, the PSR applied a three (3) level reduction for acceptance of responsibility, which resulted in a total offense level of thirty-one (31) as to Counts 1, 2, and 3. (Id. at 15, ¶¶ 67-69).
U.S.S.G. § 4B1.1(b)(2) provides that "if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply." (emphasis added). According to the table set forth in this subsection, the offense level for a career offender is thirty-four (34) if the statutory maximum for an offense is twenty-five (25) years or more. Id. Here, because the statutory maximum term of imprisonment for Count 1 was twenty-five (25) years, Defendant's offense level as a career offender was 34. (Doc. 121, PSR at 24, ¶ 112).
According to U.S.S.G. § 4B1.1(b)(2), the applicable career offender offense level may be decreased if an adjustment from U.S.S.G. § 3E1.1 for Acceptance of Responsibility applies.
As discussed supra, the PSR properly classified Defendant as a career criminal. Although Defendant's Adjusted Offense Level for Count 1 was thirty-two (32) (inclusive of the four (4) level abduction enhancement), his offense level as a career offender was designated as thirty-four (34) pursuant to the Guideline's Chapter Four Enhancement. See U.S.S.G. § 4B1.1(b)(2); (Doc. 121, PSR at 15, ¶¶ 46, 65). Therefore, even if Defendant's Combined Adjusted Offense did not account for the abduction enhancement, this would not have altered his career criminal offense level of thirty-four (34) or, after adjusting for the three (3) level reduction for acceptance of responsibility, his ultimate total offense level of thirty-one (31). See Williams v. United States, 503 U.S. 193, 203 (1992) (holding that sentencing decisions need not be remanded if "the error did not affect the district court's selection of the sentence imposed" (citation omitted)); United States v. Hankerson, 496 F.3d 303, 310-11 (3d Cir. 2007) (holding that, in the sentencing context, prejudice under the second prong of Strickland exists "where the deficient performance affected a defendant's sentence."). As the contested enhancement did not impact his applicable sentencing range under the Guidelines, Defendant has not established prejudice under the second prong of Strickland. Thus, the court does not find that Attorney Sundmaker was ineffective for failing to challenge the inclusion of the four (4) level abduction enhancement in the PSR.
3. Lack of Shepard Documents
Defendant further argues that Attorney Sundmaker was ineffective for failing to challenge the Government's reliance on the PSR, instead of Shepard-approved documents, upon determining his predicate convictions for the purposes of the career criminal enhancement. (Doc. 154, at 26-27). The Third Circuit, however, has held that "a court can look to a presentence report if the defendant did not challenge the descriptions of the factual accounts within it." United States v. Volek, 796 F. App'x 123, 125 (3d Cir. 2019) (citing United States v. Siegel, 477 F.3d 87, 93-94 (3d Cir. 2007)). Although Defendant now generally contests whether the Government established that the convictions outlined in the PSR "were even his," he offers nothing to disclaim the offenses or descriptions at issue. See United States v. Payo, No. 2:17-CR-00211-1, 2019 WL 235112, at *6 (W.D. Pa. Jan. 16, 2019) (rejecting claim that counsel was ineffective for declining to object to the lack of Shepard documentation at sentencing, when defendant provided "no specific factual dispute beyond a blanket denial of any facts underlying his previous convictions."); see also United States v. Alexander, No. 4:05-CR-034-SPM, 2007 WL 4218988, at *3 (N.D. Fla. Nov. 27, 2007) (denying claim that "counsel was ineffective for not securing additional information beyond that stated in the PSR to advise the Court of the underlying facts of the convictions," when defendant did not "contest the summary of the offenses in the PSR or offer anything to refute the pertinent paragraphs."). Accordingly, the Court is not persuaded that Attorney Sundmaker's performance was constitutionally defective when he declined to challenge the factual basis of the PSR or request Shepard documents from the Government.
The term "Shepard document" is derived from the Supreme Court's decision in Shepard v. United States, 544 U.S. 13 (2005), which examined the limited documents that a court may review upon applying the modified categorical approach to divisible criminal statutes.
B. Ground One
As noted above, Defendant entered into a Plea Agreement with the Government on March 9, 2016. (Doc. 98, Plea Agreement). In the agreement, the Government conditionally agreed to recommend a three (3) level reduction in the Defendant's offense level if he could "adequately demonstrate recognition and affirmative acceptance of responsibility." (Id. at 7-8). The Plea Agreement also indicated that the Government "may" make a sentencing recommendation "that it considers appropriate based upon the nature of circumstances of the case and the defendant's participation in the offense," and request a downward sentencing departure based on Defendant's cooperation. (Id. at 7-8, 10-13). Ultimately, the Government recommended—and the Court granted—the three (3) level reduction for Defendant's acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 and a 35% downward sentencing departure pursuant to U.S.S.G. § 5K1.1. (Doc. 140, Departure Motion).
In his first ground for relief, however, Defendant argues that Attorney Sundmaker displayed ineffective assistance of counsel by "willingly assisting" the prosecutor in violating his Fifth Amendment Due Process Rights. (Doc. 154, at 16-22). Specifically, Defendant claims that the Government threatened to revoke his three (3) point criminal history reduction, as agreed upon in the Plea Agreement for acceptance of responsibility, and apply the U.S.S.G.'s leadership enhancement if he raised "'any objections to the PSR or anything else at [his] sentencing hearing . . . ." (Doc. 154, at 18). According to Defendant, this violated the express terms of the Plea Agreement and prevented him from pursuing his desired challenges to the PSR. (Doc. 188, Reply at 4). Defendant also asserts that Attorney Sundmaker displayed ineffective assistance by relaying the Government's "threats" to him, withdrawing the outstanding objections to the PSR, and failing to advocate on Defendant's behalf regarding the Government's coercive tactics. (Doc. 154, at 20; Doc. 188, Reply at 3-4).
Underlying the Defendant's position is the assertion that the Government violated his rights provided in the Plea Agreement. This is not the case. As discussed infra, the Plea Agreement provided discretion to the Government to make the sentencing recommendations at issue, and the Government evidently informed Attorney Sundmaker of the conditions under which they would not make the recommendations. Defendant has cited to no authority, and the Court's research has uncovered none, which would indicate that the Government's actions violated his due process rights or were otherwise improper. See e.g. United States v. Beattie, 919 F.3d 1110, 1115 (8th Cir. 2019), cert. denied, 140 S. Ct. 1129, 206 L. Ed. 2d 191 (2020) (concluding that the government "did not breach the plea agreement when it pointed out its right to argue against an acceptance of responsibility reduction for [defendant's] post-plea conduct but chose not to assert that right.").
The Plea Agreement provided, in relevant part:
If the defendant can adequately demonstrate recognition and affirmative acceptance of responsibility to the Government as required by the Sentencing Guidelines, the Government will recommend that the defendant receive a three-level reduction in the defendant's offense level for acceptance of responsibility. The third level, if applicable, shall be within the discretion of the Government under U.S.S.G. § 3E1.1.
(Doc. 98, Plea Agreement at 7-8).
The Plea Agreement further indicated that the Government "may" request a downward departure pursuant to U.S.S.G. § 5K1.1 if, upon the completion of Defendant's cooperation, the Government believed that Defendant had provided "substantial assistance." (Id. at 12). The Government reserved the right, however, to "decline to exercise its discretion" and recommend a downward departure if Defendant breached "any of the provisions of [the Plea] Agreement . . . ." (Id. at 12-13). Additionally, in the event the plea was withdrawn, "any statements, interview, or testimony given by the defendant as part of any efforts to cooperate with the government" would also be admissible against him. (Id. at 14-15).
In support of his argument that failing to object to the PSR was the product of coercion, and thus a violation of his due process rights, Defendant points to Attorney Sundmaker's notes from a meeting with the Government and U.S. Probation Officer Steve Zdaniewicz. (Doc. 154, at 36). These notes memorialized that, based on his career offender designation, Defendant's guidelines range was 294-346 months; the Government agreed to seek a 35% downward departure, however, which resulted in an adjusted guidelines range of 177-208 months. (Id.) While Defendant's guidelines range without a criminal offender designation would be 235-272 months, the notes indicated that the Government would be disinclined to seek such a high downward departure under that scenario. (Id.) The notes further provided that the Government could opt to seek a "two or three level upward departure for [Defendant's] leadership role." (Id.).
Attorney Sundmaker's notes do not suggest that the Government would recommend against the reduction of Defendant's sentence if he did not qualify as a career criminal; rather, they suggest that Defendant would not have received the same recommendation for a 35% downward departure.
Defendant asserts that he discussed these meeting notes with Attorney Sundmaker three (3) days prior to his sentencing hearing. (Id. at 18-19). Despite not bringing his concerns to the Court on the day of sentencing, Defendant now claims that he told Attorney Sundmaker he wished to withdraw his plea, as the Government's contention that it could withdraw his acceptance of responsibility reduction and object to his downward departure request under U.S.S.G. § 5K1.1 ran contrary to the Plea Agreement. (Id. at 19). Attorney Sundmaker advised against this, however, and explained that such an action would result in his statements being used against him at trial. (Id.)
Upon review of the record, the Court does not find that Attorney Sundmaker's aggrieved of conduct was constitutionally deficient. In essence, Defendant faults Attorney Sundmaker for advising him of the potentially adverse consequences of raising objections to the PSR and what remedies the Government could enforce if he chose to withdraw his plea. Insofar as Attorney Sundmaker failed to advance certain objections on the basis that they may result in the loss of Defendant's three-level reduction for acceptance of responsibility, or the addition of leadership enhancements, the Court is not persuaded that such efforts to preserve Defendant's sentencing benefits fell outside the bounds of prevailing professional norms. See Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006) ("Strickland and its progeny make clear that counsel's strategic choices will not be second-guessed by post-hoc determinations that a different trial strategy would have fared better."); see also Good v, United States, No. 2:16CR22, 2018 WL 2976984, at *8 (E.D. Va. June 12, 2018), appeal dismissed, 776 F. App'x 191 (4th Cir. 2019) (holding that counsel was not ineffective when there "was an objectively reasonable basis to withdraw Petitioner's objections both because of the potential loss of the acceptance of responsibility and because the objections appeared likely to fail."); McCully v. United States, No. 06-0829 CVWFJG, 2007 WL 927743, at *2 (W.D. Mo. Mar. 26, 2007) (holding that that "counsel cannot be found ineffective for . . . refraining from objections that would most likely enhance her client's sentence."). Nor is the Court convinced that any prejudice resulted from Attorney Sundmaker's tactics, as objecting to the PSR's career offender designation would have been futile and the Government still recommended that Defendant receive a three (3) level acceptance of responsibility reduction and a 35% downward departure; even if it had made contrary recommendations, or decided to pursue a leadership enhancement, the discretionary language of the Plea Agreement did not proscribe the Government from doing so under certain circumstances.
Additionally, the Defendant's testimony at the Sentencing Hearing on July 12, 2017 indicates that he agreed with the PSR, sought to accept responsibility, and understood the reasons why the objections were withdrawn. Specifically, the following exchange took place at the sentencing hearing regarding the PSR:
Atty. Sundmaker: [I]n this particular case there were two objections that had been lodged to the PSR. . . . I had the opportunity to meet with [U.S. Probation Officer] Mr. Zdaniewicz who I had been working with for some time with regard to the PSR, and also with [the Government].
[. . .]
We had a lengthy meeting, at which point in time I believe we resolved all of our outstanding differences. I've shown Mr. Futrell the current PSR . . . so at this point in time we would on the record withdraw any objections to the current PSR as it stands today.
The Court: All right, thank you. Mr. Futrell, do you agree with it?
Defendant: Yes, your Honor.
The Court: You do?
Defendant: Yes, your Honor.
[. . .]
I was told that depending on what I object to or what I said might change the outcome of whatever recommendation the government was going to make or whatever departures that I might receive, so I didn't object to anything because I want to - I want to accept responsibility. I feel, I mean, according to my lawyer certain objections could be looked at as me not accepting responsibility. So I don't object to certain things that w[ere] in the PSR.
(Doc. 146, Sentencing Transcript, July 12, 2017 at 2-3, 29).
Defendant's response does not suggest that he was coerced into withdrawing his objections due to the Government's alleged breach, or threatened breach, of the Plea Agreement. Rather, when given the opportunity to object to the PSR, Defendant declined to do so after acknowledging that certain objections could possibly be interpreted as failing to accept responsibility. For these reasons, Ground One will be denied.
In Ground Four of his petition, Defendant brings a related ineffectiveness claim against Attorney Sundmaker for failing to challenge the Government's alleged prosecutorial misconduct. Specifically, Defendant submits that the Government induced him into accepting the Plea Agreement when it promised that he could raise objections to the PSR, but "then used threats, intimidation, and deception" to prevent him from doing so. (Doc. 154, at 8, 29-31; Doc. 162, Br. in Supp. at 26-30). As Defendant has not shown that the Government breached the terms of the Plea Agreement, or otherwise improperly conditioned the receipt of certain sentencing benefits on the waiver of Defendant's objections to the PSR, the Court similarly rejects Ground Four.
C. Ground Three
In his third ground for relief, Defendant argues that Attorney Sundmaker was ineffective for failing to provide him with a final copy of the PSR before his sentencing hearing. (Doc. 154, at 7). Defendant asserts that Attorney Sundmaker merely provided him with a copy of the sentencing memorandum and misled him regarding the calculation of his sentencing range under the Guidelines. (Doc. 154, at 28-29; Doc. 162, Br. in Supp. at 27). The Government argues that there is no evidence in the record to substantiate these claims. (Doc. 170, Br. in Opp'n at 33-35).
The Third Circuit for the United States Court of Appeals has held that, "[i]n considering a motion to vacate a defendant's sentence, 'the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). Here, in the Addendum to the PSR filed on November 17, 2016, U.S. Probation Officer Stephen Zdaniewicz certified that the PSR had "been disclosed to the defendant, his attorney, and counsel for the Government, and that the content of the Addendum ha[d] been communicated to the parties." (Doc. 122, at 1). Additionally, during Defendant's sentencing hearing, Attorney Sundmaker indicated that he had shown Defendant the PSR. (Doc. 146, Sentencing Transcript, July 12, 2017 at 2-3). Notably, Defendant did not contest this statement and subsequently confirmed that he did not object to the PSR. Id. Therefore, based on the record, the Court is not persuaded that Attorney Sundmaker deprived Defendant of the opportunity to review the PSR prior to his sentencing or otherwise mislead him regarding the calculation of his sentence.
The Court acknowledges that Defendant cites to the United States District Court for the Middle District of Pennsylvania's Policy on Guideline Sentencing, Standing Order 03-5, and Rule 32 of the Federal Rules of Criminal Procedure in support of his argument. (Doc. 162, Br. in Supp. at 57). Pursuant to subsection (d) of the standing order, defense counsel "shall ensure that the defendant has a copy of the [presentence] report." (Id.) Even if Attorney Sundmaker failed to comply with this directive, however, Defendant has not demonstrated prejudice under the second prong of Strickland. Specifically, as the record demonstrates that Attorney Sundmaker reviewed the PSR with the defendant, "[any prejudice that Defendant would have encountered by not actually receiving a copy of the report was effectively expunged." See United States v. Klimovitz, No. 1:08-CR-00283, 2010 WL 1994184, at *11 (M.D. Pa. May 18, 2010); see also United States v. Stevens, 223 F.3d 239, 245 n.6 (3d Cir. 2000) (noting that without "some showing" that Defendant's counsel failed to discuss the PSR with him, "we will not presume that counsel acted negligently or otherwise provided ineffective assistance.") (citing Strickland, 466 U.S.at 689 ("[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.")). Therefore, Defendant's motion for relief on the grounds that Attorney Sundmaker failed to furnish him with the PSR, or otherwise failed to discuss the calculation of his sentencing range under the Guidelines, will be denied.
D. Ground Five
In Ground Five, Defendant claims that his appellate counsel, Attorney Martin, provided ineffective assistance of counsel by not filing an Anders brief and advising him to withdraw his direct appeal. (Doc. 154, at 10). Defendant also faults Attorney Martin for failing to challenge his career offender designation, as well as the court's handling of his request for a downward departure, on direct review. (Id.; Doc. 162, Br. in Supp. at 34-37). The Government responds that appellate counsel provided sound advice regarding the prospects of Defendant's direct appeal, and cannot be deemed ineffective for failing to raise a meritless claim. (Doc. 170, Br. in Opp'n at 36-39). The Government also argues that Defendant cannot show any prejudice resulted from Attorney Martin's conduct. (Id. at 39-40).
The Sixth Amendment's "guarantee of effective assistance of counsel extend[s] to the first appeal as of right, and the Strickland standard applie[s] to appellate representation." Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004) (citing Jones v. Barnes, 463 U.S. 745 (1983)), To prove prejudice for the purposes of an ineffective assistance of appellate counsel claim, the "defendant has the burden to 'show a reasonable probability that, but for his counsel's unreasonable failure' to raise the disputed issue on appeal, 'he would have prevailed on his appeal.'" United States v. Fritz, 643 F. App'x 192, 194 (3d Cir. 2016) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000). 5); see also United States v. Mannino, 212 F.3d 835, 844 (3d Cir. 2000) (holding that the test for prejudice in the appellate context is whether the court of appeals "would have likely reversed and ordered a remand had the issue been raised on direct appeal.").
In support of his ineffectiveness claim, Defendant points to a letter from Attorney Martin that advises him as follows:
. . . [Y]ou cannot raise the [ineffective assistance of counsel] claim and the career offender issue on appeal, the former must be raised in a [§] 2255 [petition] because it will require an evidentiary hearing and the latter because it was waived below in district court. For this reason, the [career offender] issue must be couched in the [ineffective assistance of counsel] claim.
(Doc. 154, at 52).
Notably, the Third Circuit has held that a defendant waives any "objections to the accuracy of the PSR by not raising them at sentencing." See United States v. Cannon, 340 F. App'x 826, 830 (3d Cir. 2009) (citing Government of Virgin Islands v. Rosa, 399 F.3d 283, 291 (3d Cir. 2005)). Additionally, reviewing courts will generally "not address ineffective assistance of counsel claims on direct appeal, and instead will defer such claims to collateral proceedings." United States v. Telfair, 507 F. App'x 164, 176 (3d Cir. 2012) (citing United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003)). This is because the appellate court ruling on a direct appeal "must proceed on a trial record that is not developed precisely for, and is therefore often incomplete or inadequate for, the purpose of litigating or preserving [ineffectiveness] claim[s]." Massaro v. United States, 538 U.S. 500, 500-01 (2003).
Here, having concluded that Attorney Sundmaker abandoned Defendant's objections to the PSR, Attorney Martin properly advised that Defendant's career offender designation could not be raised on direct review. Attorney Martin also appropriately indicated that any ineffective assistance of counsel claims should be raised in collateral proceedings. As such, Defendant has not demonstrated that Attorney Martin's failure to raise the challenged claim on appeal fell outside "the wide range of reasonable professional assistance. . . ." Strickland, 466 U.S. at 689; see also United States v. Gassew, 42 F. Supp. 3d 686, 694 (E.D. Pa. 2014) (holding that ineffective assistance of appellate claim failed, as counsel "did not render deficient performance by failing to raise a waived claim."). Nor has Defendant established the necessary prejudice prong under Strickland; as Defendant's career criminal designation was properly determined, he has not shown that he would have prevailed on appeal had Attorney Martin pursued the issue. See Caceres v. United States, 188 F. Supp. 3d 383, 389 (D.N.J. 2015) ("Having found the career offender classification proper, appellate counsel was not ineffective for failing to appeal that issue.").
For these reasons, the Court concludes that there was a reasonable and strategic basis for Attorney Martin declining to pursue these issues on appeal. The Court similarly finds that, insofar as Attorney Martin advised Defendant to voluntarily withdraw his direct appeal instead of filing a brief in accordance with Anders v. California, 386 U.S. 738 (1967), Defendant's claim of ineffectiveness is also without merit. Therefore, Ground Five of Defendant's § 2255 petition will be denied.
In Anders, the Supreme Court clarified the procedures that appellate counsel must follow upon seeking leave to withdraw when they have determined that pursuing an appeal would be wholly frivolous. See Smith v. Robbins, 528 U.S. 259, 267-68 (2000). Here, Attorney Martin did not file an Anders brief with the Court; Defendant voluntarily dismissed his appeal pursuant to Rule 42 of the Federal Rules of Appellate Procedure. (Doc. 148). To the extent that Defendant vaguely claims Attorney Martin's failure to apprise him of the procedures in Anders somehow invalidated his decision to withdraw his direct appeal, or somehow resulted in prejudice, the Court is not persuaded by this contention.
E. Ground Six
In his final ground for relief, Defendant argues that Attorney Sundmaker was ineffective for failing to object to the vagueness of the plea agreement and not arguing that his sentence was "substantively and procedurally unreasonable." (Doc. 154, at 11). Defendant also faults Attorney Sundmaker for failing to oppose the application of the mandatory minimum consecutive sentence under 18 U.S.C. § 924(c). The Government argues that this ground should be dismissed, as there is nothing "vague" about the terms of the Plea Agreement. (Doc. 170, Br. in Opp'n at 40-43).
Under 18 U.S.C. § 924(c)(1)(A), enhanced punishments apply for any individual who uses, carries, brandishes, or discharges a firearm "during and in relation to any crime of violence. The length of the mandatory minimum sentence depends on whether the defendant uses, carries, or possesses the firearm (five (5) years); brandishes the firearm (seven (7) years); or discharges the firearm (ten (10) years). 18 U.S.C. § 924(c)(1)(A)(i)-(iii). The law further defines a "crime of violence" as a felony that: "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another or; (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3). "These clauses are known as the 'elements clause' and the 'residual clause,' respectively." United States v. Robinson, 844 F.3d 137, 141 (3d Cir. 2016).
When liberally construed, Defendant argues that the Plea Agreement is "vague" because it does not specify whether he committed a "crime of violence" under the elements clause or the residual clause of § 924(c)(3). (Doc. 154, at 11, 34). Defendant also argues that his conviction as to Count 4 should be vacated if it was in fact based on § 924(c)'s residual clause, as the Supreme Court recently invalidated this provision as unconstitutionally vague in United States v. Davis, 139 S. Ct. 2319 (2019). (Doc. 188, Reply at 28). Although Attorney Sundmaker sought a downward departure of his sentence on other grounds, Defendant further claims that he was ineffective for failing to argue that the sentencing judge should have considered the mandatory minimums imposed under § 924(c) when calculating his sentence as to Counts 1, 2, and 3. (Doc. 162, Br. in Supp. at 38-39).
Even if Defendant argues that the Plea Agreement is "vague" because it cites to § 924(c) without referencing the specific subdivision to which he agreed to plead guilty, this position is unavailing. As the Information charged him with "knowingly us[ing], carry[ing], and brandish[ing] a firearm . . . during and in relation to a crime of violence" (Doc. 95, Information at 4) (emphasis added), and the Plea Agreement specifically stated that Count 4 carries a "minimum sentence of 7 years," (Doc. 98, Plea Agreement at 2), "the only reasonable conclusion he could have come to, even as a lay person, would have to have been that he was pleading guilty to § 924(c)(1)(A)(ii), thus binding him to a seven-year mandatory minimum." U.S.A. v. Waters, No. 1:17-CR-112-3, 2020 WL 3619085, at *4 (M.D. Pa. July 2, 2020).
As stated supra, Count 4 of the Criminal Information filed on March 9, 2016 charged Defendant with brandishing a firearm during and in relation to, and in furtherance of, a crime of violence, in violation of 18 U.S.C. §§ 924 (c) and 2. (Doc. 95, Information at 4). Specifically, the underlying crime of violence referred to armed bank robbery in violation of 18 U.S.C. § 2113(d). (Id.) Significantly, however, "[t]his court and others have consistently held that armed bank robbery [under 18 U.S.C. § 2113(d)] constitutes a 'crime of violence' within the meaning of § 924(c)'s [elements] clause." United States v. Stubbs, No. 1:12-CR-9, 2017 WL 550590, at *9 (M.D. Pa. Feb. 10, 2017), aff'd, 757 F. App'x 159 (3d Cir. 2018) (citing United States v. Williams, No. 16-CR-283, 2016 WL 7104297, at *3 & n.1 (M.D. Pa. Dec. 6, 2016) (collecting cases)); see also United States v. Green, No. 1:12-CR-9, 2020 WL 3263629, at *5-6 (M.D. Pa. June 17, 2020) ("[T]he Third Circuit has conclusively determined that armed bank robbery is a crime of violence under Section 924(c)'s elements clause," which "does not differentiate between principal, aider and abettor, and vicariously liable coconspirator."); United States v. Johnson, 899 F.3d 191, 203-04 (3d Cir. 2018), cert. denied, 139 S. Ct. 647, 202 L. Ed. 2d 498 (2018) (applying the categorical approach and finding that 18 U.S.C. § 2113(d) meets the elements clause of § 924(c)(3)). Further, as the Supreme Court decided Daws after Defendant's sentencing in 2017, Attorney Sundmaker cannot be deemed ineffective for failing to anticipate its result. See Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (holding that counsel's failure to foresee the outcome of a pending case did not constitute ineffective assistance, as "there is no general duty on the part of defense counsel to anticipate changes in the law." (citing Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989))). As such, Defendant cannot establish that failing to challenge the plea agreement based on Count 4's purported "vagueness," or to otherwise oppose the application of § 924(c)'s mandatory consecutive sentence, rendered Attorney Sundmaker's counsel constitutionally deficient.
Defendant also argues that Attorney Sundmaker was ineffective for failing to argue that his sentence was procedurally and substantively unreasonable under Dean v. United States, 137 S. Ct. 1170 (2017). (Doc. 162, Br. in Supp. at 38-39). In Dean, however, the Supreme Court simply determined that § 924(c) does not divest a sentencing court of its discretion to consider the length of the statute's mandatory minimums "when calculating an appropriate sentence for the predicate offense." Dean, 137 S. Ct. at 1178; see also United States v. Perez, 744 F. App'x 624, 627 (11th Cir. 2018) ("Dean does not require sentencing courts to consider mandatory minimum sentences under § 924(c) when calculating the sentence for predicate counts; rather, Dean emphasizes the district court's long enjoyed discretion' and held that mandatory minimum consecutive sentences under § 924(c) may (not must) be considered.") (emphasis in original) (quotation omitted). Here, at Defendant's sentencing hearing, the court clearly knew that Count 4 carried an eighty-four (84) month mandatory minimum sentence to run consecutively to Counts 1, 2, and 3, and emphasized the seriousness of Defendant's predicate offenses. (Doc. 146, at 34-36). Therefore, Defendant has not demonstrated a reasonable probability that he would have obtained a lesser sentence had Attorney Sundmaker relied on Dean to pursue a downward departure. USA v. Waters, No. 1:17-CR-112-3, 2020 WL 3619085, at *4 (M.D. Pa. July 2, 2020) (holding that failing to argue for a downward departure under Dean did not render counsel ineffective under the second prong of Strickland, as the court was aware of the relationship between the mandatory minimums under § 924(c) and the defendant's predicate offenses when deciding his total sentence). Therefore, Ground 6 of Defendant's § 2255 petition will be denied.
V. CONCLUSION
For the reasons set forth in this Memorandum Opinion, the Court will deny Defendant's motion to vacate under 28 U.S.C. § 2255 (Doc. 154). The Court will also decline to issue a certificate of appealability, as defendant has not "made a substantial showing of the denial of a constitutional right." 28 U.S.G. § 2253(c)(2). A separate Order follows.
/s/_________
Robert D. Mariani
United States District Court Judge