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UNITED STATES v. MILLER

April 29, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
LEONARD GEORGE MILLER, Defendant.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 INTRODUCTION

 Defendant, Leonard George Miller, was charged in a superseding indictment returned on January 9, 1997, *fn1" with violations of various statutes in connection with his alleged involvement in a conspiracy to distribute heroin and cocaine. Miller was named in nineteen of the indictment's thirty-six counts. On September 25, 1997, pursuant to a written plea agreement, Miller (who was at that time represented by Anthony F. Leonardo, Jr., Esq.) pleaded guilty to Count One of the indictment, which charged him with a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), and 846. The agreement provided that, because of Miller's criminal history, he would be subject to a mandatory term of life imprisonment without release, but that, subject to Miller's compliance with the terms and conditions of the agreement concerning his cooperation with the Government, the court could sentence him to a term of imprisonment of no less than fifteen years.

 I accepted Miller's plea, but set no sentencing date at that time, since the appropriate sentence would depend in part on Miller's future cooperation. Since it was undisputed that Miller would be sentenced to at least fifteen years imprisonment, however, he was directed to self-surrender to the United States Marshal's Service on January 5, 1998 to begin serving his sentence.

 On December 19, 1997, over twelve weeks after he had pleaded guilty and sixteen days before his self-surrender date, Miller, now represented by Michael J. Tallon, Esq., filed a motion to withdraw his guilty plea pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure. The basis for the motion is Miller's claim that Leonardo rendered ineffective assistance of counsel by failing to look into certain factual and legal matters concerning the plea, and coerced Miller into pleading guilty.

 FACTUAL BACKGROUND

 On September 5, 1996, Miller appeared at the Federal Building in Rochester, New York in connection with his supervised release stemming from a 1994 conviction for conspiracy to distribute heroin. Agents of the Drug Enforcement Administration ("DEA") had been investigating the alleged activities underlying the indictment in the instant case since at least July 1996. When Miller arrived on September 5, he was questioned by DEA agents. He allegedly made some incriminating statements.

 The next day, Miller contacted Leonardo concerning his contact with the agents. There is some dispute about whether Leonardo agreed to represent Miller at that time, but it is undisputed that at some point prior to November 14, 1996, Miller did retain Leonardo as his attorney.

 On Leonardo's advice, Miller continued to cooperate with the DEA. Leonardo also began to discuss a possible plea agreement with Assistant United States Attorney Christopher P. Tuite, who was handling the case for the Government. Based on Miller's criminal record, which includes three felony drug convictions, the attorneys agreed that he would be subject to 21 U.S.C. § 841(b)(1)(A), which provides that a person convicted of any one of certain specified drug crimes who has previously been convicted of two or more drug offenses "shall be sentenced to a mandatory term of life imprisonment without release ..."

 Eventually Tuite and Leonardo worked out an agreement under which Miller would plead guilty to Count One, with the understanding that he would be subject to a mandatory life sentence. However, the agreement also provided that, subject to Miller's satisfactory cooperation with the Government as provided for elsewhere in the agreement, the court at the time of sentencing could impose a sentence of no less than fifteen years imprisonment.

 Miller now claims that Leonardo pressured him into accepting this agreement by telling him that his only alternative was to go to trial, where a guilty verdict would mean a sentence of life imprisonment with no chance of release. Leonardo denies pressuring Miller, though he and the Government concede that he advised Miller that this was the best deal Leonardo thought he could get based on the facts of the case.

 Miller was originally scheduled to enter his guilty plea on September 18, 1997. When he arrived at the courthouse, however, he expressed some hesitation about the matter to his attorney. When this was communicated to the court, I postponed the matter one week, to September 25. I stated to Miller, "It's a big decision to plead guilty ..., but if you need some time to think this over, you should have that time." Transcript ("Tr."), Sept. 18, 1997, at 3. I also made clear that there was no pressure on Miller to plead guilty rather than go to trial, stating, "Whatever you decide, the Court will certainly respect that." Tr. at 5.

 The parties reconvened as scheduled on September 25, and Miller went forward with his guilty plea. The thirty-seven page transcript of the plea proceeding is replete with statements that Miller made under oath reflecting Miller's awareness of his rights, his comprehension of the terms of the agreement, and his willingness to plead guilty pursuant to the agreement, as the following excerpts reveal:

 
THE COURT: ... Do you think now you have had enough time to decide what you want to do in this case?
 
THE DEFENDANT: Yes, sir.
 
THE COURT: Do you think you have fully explored all of your options, as it were, with your lawyer?
 
THE DEFENDANT: Yes, your Honor.

 Tr., September 25, 1997, at 4.

 
THE COURT: So that even though there's guideline calculations done here, ... because of Mr. Miller's prior record and the drug amount here, the statute trumps the guidelines and provides that I must impose a mandatory term of life imprisonment without release.
 
MR. TUITE: That's correct.
 
MR. LEONARDO: That's true, your Honor.
 
THE COURT: Mr. Miller, do you understand that?
 
THE DEFENDANT: Yes, sir.

 Tr., at 13-14.

 
THE COURT: ... If the government thinks your cooperation has been terrific and I agree, the best you can do or the lowest I can go, to put it another way, is fifteen years.
 
THE DEFENDANT: Yes, your Honor.

 Tr., at 15.

 
THE COURT: ... Even if I depart, there's no commitment or promise, as I read this agreement, that I'm going to give you fifteen years. Do you understand that?
 
THE DEFENDANT: Yes, your Honor.
 
THE COURT: ... If the Court departs, it could be anywhere between mandatory life to fifteen years. Do you understand that?
 
THE DEFENDANT: Yes, your Honor.
 
THE COURT: And the agreement specifically provides that you can't ask for any other kind of departure. This is ...

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