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MEYER v. UNITED STATES

October 6, 1992

ROBERT G. MEYER, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: LEONARD D. WEXLER

MEMORANDUM AND ORDER

 WEXLER, District Judge

 Robert G. Meyer ("Meyer"), appearing pro se, moves pursuant to 28 U.S.C. § 2255 to modify the sentence of eighteen years of imprisonment and a consecutive life term of special parole that he is currently serving. He claims, inter alia, that he was unaware that a special parole term would be imposed because it was not mentioned in his plea agreement and because the Court failed to advise him in open court of the effect of such a term. He thus asserts that this Court erred in imposing such a term as part of his sentence. For the reasons that follow, Meyer's motion is granted and his sentence is modified as set forth below.

 I. BACKGROUND

 In September 1980, Meyer and several accomplices forced, at gunpoint, the manager of the Rexar Pharmacal Corp. ("Rexar"), located in Valley Stream, New York, to open Rexar's drug vault. They then handcuffed the manager and two other Rexar employees and took from the vault approximately 390,000 amphetamine tablets and a quantity of amphetamine powder. Little more than a year later, in December of 1981, Meyer and his accomplices abducted the same Rexar manager from his home and forced him to open the Rexar plant. On this occasion, they robbed Rexar of approximately 700,000 amphetamine capsules and 350 pounds of crystalline amphetamine.

 In April 1986, Meyer was indicted on five counts arising from the two robberies: (1) conspiring to take controlled substances by force with the intent to distribute, a violation of 21 U.S.C. § 846; (2) robbery, under 18 U.S.C. § 1951; (3) & (4) intentionally possessing with intent to distribute and distributing amphetamine, a schedule III controlled substance, in violation of 21 U.S.C. § 841(a)(1) & (2); and (5) engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848. Meyer was alleged to have been the organizer, supervisor, and manager of the enterprise.

 Plea negotiations led to an agreement to dismiss three of the counts in exchange for guilty pleas to the charges of robbery and distribution of a controlled substance. Meyer was given the choice of two sentencing options. The first option was as follows:

 It is expressly agreed pursuant to Fed. Crim. P. [sic] 11(e)(1)(C) that a) as to Count Two of the Indictment, a sentence to incarceration for no more than twenty years will be imposed on defendant Meyer; and b) any period of incarceration imposed on Count Four shall be served concurrent with the agreed upon sentence to be imposed for Count Two.

 The second option would have imposed a term of fifteen years of imprisonment followed by a special parole term of ten years. *fn1" Meyer chose the former option and signed an agreement to that effect on September 15, 1986. On September 19, 1986, he pleaded guilty.

 In his presentence memorandum, delivered after his guilty plea, Meyer urged the Court to impose a short prison term on the basis of his "remarkable effort to reintegrate" into society since a previous term of incarceration. Presentence Memorandum at p. 2. In exchange for a short term of imprisonment, Meyer suggested that the Court impose a lengthy special parole term. Id. As counsel for Meyer explained, a "lengthy consecutive special parole term . . . teamed with a moderate term of incarceration . . . would ensure that [Meyer] would be incarcerated for the rest of his life if he reverts to his old ways" after release from prison. Id. Moreover, the presentence report proffers that "this plan would permit [Meyer] to return to work to help support his family while under extended supervision. . . ." Id. at 14 (emphasis added).

 On December 5, 1986, this Court sentenced Meyer to eighteen years of incarceration to be followed by a life term of special parole. Meyer does not dispute that this sentence was within the statutory range that the Court was allowed to impose. Rather, he now contends that the special parole term was inconsistent with the plea agreement that he signed on September 15, 1992. Meyer asserts that: (1) he was unaware that a special parole term would be imposed because it was not mentioned in the plea agreement; (2) this Court did not advise him in open court of the effect of a special parole term, as required by Rule 11(c)(1) of the Federal Rules of Criminal Procedure; *fn2" and (3) the government knew the plea agreement to be a misrepresentation.

 II. DISCUSSION

 28 U.S.C. § 2255 authorizes the sentencing court to discharge or resentence a prisoner in custody if the court concludes that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . ." 28 U.S.C. § 2255; United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting § 2255). To be cognizable under a writ of habeas corpus, an error must be a fundamental defect resulting in "a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). It is to be noted that an error that would justify reversal on an appeal is not necessarily sufficient to support a collateral attack on a final judgment. Addonizio, 442 U.S. at 184.

 In the instant action, Meyer collaterally attacks on two grounds the guilty plea and the concomitant plea agreement. First, Meyer argues that in accepting his guilty plea without informing him of the mandatory special parole term, the Court made an error "inconsistent with the rudimentary demands of fair procedure" and reaching the magnitude of a "complete miscarriage of justice." Meyer's Motion at 8. Second, he claims that the United ...


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