Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

April 30, 2004.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



Donald Alexander Bailey ("Bailey") has made a motion, pursuant to 28 U.S.C. § 2255, that the court vacate the sentence imposed upon him under Indictment No. 98 Crim. 1148, because his right under the Sixth Amendment to the effective assistance of counsel was violated when the attorney who represented him in connection with the criminal proceeding failed to object when the court, applying § 2L1.2(b)(1)(a) of the United States Sentencing Commission Guidelines ("Guidelines"), increased by 16 levels the base offense level assigned to the offense for which Bailey was convicted. Bailey maintains that the increased base offense level applied to him was improper and resulted in a term of incarceration longer than was justified under the Guidelines.


  Bailey was convicted upon a plea of guilty to violating 8 U.S.C. § 1326, which makes it an offense for an alien to enter or be found in the United States after having been deported, unless the alien has obtained the consent of the United States Attorney General to reapply for admission to this country. The statute provides, among other things, that an alien who has violated 8 U.S.C. § 1326, after having been convicted for an aggravated felony, may be fined or imprisoned for not more than 20 years or both. In Bailey's case, the indictment returned by the grand jury notes that Bailey was convicted in the New York State Supreme Court, Kings County, for the aggravated felony criminal sale of a controlled substance in the fourth degree.

  Bailey's plea of guilty to Indictment No. 98 Crim. 1148 followed your Honor's determination to deny his pretrial motion to dismiss the indictment premised upon Bailey's claim that he received ineffective assistance from the attorney he engaged to represent him in connection with proceedings brought by the Immigration and Naturalization Service to effect Bailey's deportation from the United States.

  The gravamen of the instant request by Bailey, that his sentence be vacated, is that the drug-related conviction noted in Indictment No. 98 Cr. 1148 was not an aggravated felony. Therefore, according to Bailey, under the relevant provision of the Guidelines, the base offense level applicable to his case was eight, and should not have been increased by 16 levels pursuant to Guidelines § 2L1.2. Consequently, the period of incarceration to which he was exposed by his plea of guilty was much lower than that considered by the court when it imposed a sentence upon him. Bailey maintains that his criminal defense attorney's failure to recognize this and to urge the court to apply the Guidelines appropriately to his case, supports a finding that he received ineffective assistance from his criminal defense attorney and was, thereby, prejudiced because he received a term of incarceration greater than that to which he should have been exposed. In asserting his claim, Bailey relies upon 8 U.S.C. § 1101(a)(43)(F). That provision of the statute defines an aggravated felony that is a crime of violence as an offense for which the term of imprisonment is at least one year. Bailey contends that, because he was incarcerated for only four months in connection with his September 1985 conviction in the New York State Supreme Court, the drug-related offense for which he was convicted was not an aggravated felony, as that phrase is described in 8 U.S.C. § 1101(a)(43)(F), for which a 16-level enhancement could be made to the base offense level prescribed by the Guidelines for the illegal reentry offense to which he pleaded guilty before your Honor.


 Enhanced Base Offense Level

  Section 2L1.2 of the Guidelines prescribes a base offense level of eight for a person convicted for unlawfully entering or remaining in the United States after having been deported. However, that section of the Guidelines also provides, in pertinent part, the following:

If the defendant previously was deported after a criminal conviction, or if the defendant unlawfully remained in the United States following a removal order issued after a criminal conviction, increase [the base offense level] as follows. if the conviction was for an aggravated felony, increase by 16 levels.
Guidelines § 2L1.2(b)(1)(A)

  8 U.S.C. § 1101(43) defines the term "aggravated felony" in 21 different lettered subdivisions. The most relevant provision of that statute explains that "aggravated felony" means "elicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(43)(B). Based on this provision of 8 U.S.C. § 1101, a felony conviction for trafficking in a controlled substance is an aggravated felony regardless of the penalty imposed for committing the offense. Therefore, Bailey's claim that his four-months term of incarceration, following his state-court conviction in 1985 for criminal sale of a controlled substance in the fourth degree, must be considered in determining whether he committed an aggravated felony and thereby exposed himself to an enhanced base offense level under the Guidelines is meritless. See United States v. Polanco, 47 F.3d 516, 518-519 (2d Cir. 1995)(finding that illicit trafficking in any controlled substance counts as an aggravated felony regardless of the sentence received). While it is true that 8 U.S.C. § 1101(43)(F), upon which Bailey relies in claiming that the period of incarceration dictates whether a felony conviction is an "aggravated felony," makes reference to the term of imprisonment, that provision of 8 U.S.C. § 1101 applies to a conviction that is for a "crime of violence." It has no application to a conviction that arises from illegally trafficking in a controlled substance. Therefore, Bailey's reliance upon 8 U.S.C. § 1101(43)(F) is misplaced, because the underlying felony offense recited in his indictment did not involve a crime of violence but, rather, involved the illicit trafficking in a controlled substance.

 Ineffective Assistance of Counsel

  The Supreme Court has explained that the right to counsel guaranteed by the Sixth Amendment is the "right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 So. Ct. 2052, 2063 (1984)(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n. 14 [1970]). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See Strickland, 466 U.S. at 687-696, 104 S.Ct. at 2064-2069. First, a criminal defendant must show that counsel's performance was deficient; that is, that it fell below an "objective standard of reasonableness" measured under "prevailing professional norms." Id. at 687-688, 2064-2065. Second, the criminal defendant must affirmatively demonstrate prejudice, by showing that "there is a reasonable probability that, but for counsel's [error], the result of the proceeding would have been different." Id. at 694, 2068. See also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir.), cert. denied, 506 U.S. 979, 113 S.Ct. 477 (1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Considerable deference is accorded counsel's performance; counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 2066.

  Bailey's claim that his criminal defense attorney rendered ineffective assistance to him, by failing to urge the court to find that his felony conviction for selling a controlled substance in 1985 was not an aggravated felony because Bailey was sentenced to a four-month period of incarceration, would have required counsel to ignore the express language found in 8 U.S.C. § 1101(43)(B) and Second Circuit precedent that made it abundantly clear that the illicit trafficking in any controlled substance constitutes an aggravated felony regardless of the sentence received for committing such an offense. That counsel failed to urge an argument upon the court which could not be supported by reference to the applicable statute or to existing case law, cannot be said to establish that counsel rendered ineffective assistance to her client, as contemplated by Strickland. Furthermore, Bailey's decision to ignore the relevant provision of 8 U.S.C. § 1101 and to seize upon an irrelevant section of the statute in urging that the court find that he received ineffective assistance from his counsel and was thereby prejudiced, through the imposition of an improper sentence under the Guidelines, provides no basis upon which to grant him the relief he seeks through the instant motion. Therefore, the Court finds that no reasonable probability exists, based on the record as a whole, that the outcome of the sentencing proceeding would have been different had Bailey's counsel adopted his mistaken view of the meaning of the term "aggravated felony" as it relates to drug trafficking offenses and urged that view upon the court. It is not reasonable to conclude that the court would have ignored either the express language of the applicable provision of the relevant statute or pertinent Second Circuit precedent in determining whether Bailey was subject to a 16-level base offense enhancement, based upon his prior felony drug sale conviction.

  Bailey also contends that he received "erroneous" advice from appellate counsel to withdraw a notice of appeal that he had filed pro se. Bailey contends that the advice he received from appellate counsel was "erroneous" based on his belief, as discussed supra, that the 1985 drug-related conviction he suffered was not an "aggravated felony." For the reasons outlined above, Bailey's contention that his appellate counsel rendered ineffective assistance to him premised upon Bailey's selective reading of 8 U.S.C. § 1101 is unpersuasive.


  For the reasons set forth above, Bailey's motion, made pursuant to 28 U.S.C. § 2255, that his sentence be vacated, should be denied.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed. S. Rakoff, 500 Pearl Street, Room 1340, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am. 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


© 1992-2004 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.