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U.S. v. GUIDICE

May 20, 2004.

UNITED STATES,
v.
ANTHONY GUIDICE, Defendant



The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On March 10, 2004, defendant Anthony Guidice ("Guidice") made this motion to withdraw his guilty plea on the ground that his counsel was ineffective in failing to advise him that his sentencing guidelines range substantially exceeds the range to which he stipulated in his plea agreement with the Government (the "Plea Agreement"). The disparity between the guidelines range to which Guidice stipulated and his actual guidelines range was discovered upon receipt of the Probation Department's Pre-Sentence Report ("PSR"), which concludes that he qualifies as a career offender under the Sentencing Guidelines. This is Guidice's second motion to withdraw his guilty plea. The first, brought on the ground that the Government breached the Plea Agreement, was denied by this Court in a November 25, 2003 Opinion, 2003 WL 22779263 (S.D.N.Y. Nov. 25, 2003) (DLC), familiarity with which is presumed. For the reasons set forth below, this motion is also denied.

  Background

  The parties and Guidice's prior defense counsel ("Prior Counsel") have stipulated to the following facts concerning the events surrounding his plea of guilty to one count of conspiracy to commit extortion, in violation of Title 18, United States Code, Section 1951. On or about January 3, 2003, the Government provided Prior Counsel with a draft plea agreement (the "Draft Plea Agreement") calculating Guidice's offense level to be 16 and his criminal history to be Level V, resulting in a stipulated sentencing guidelines range of 41 to 51 months' imprisonment. The Draft Plea Agreement's criminal history calculation included Guidice's 1992 state conviction for assault in the second degree, his 1997 federal bank robbery conviction, and his conviction for conspiracy to commit extortion in the present case. The Draft Plea Agreement did not, however, address whether Guidice qualified as a career offender under Section 4B1.1 of the Sentencing Guidelines ("Section 4B1.1"). U.S.S.G. § 4B1.1. On January 7, 2003, during a meeting at the Metropolitan Corrections Center ("MCC"), Guidice and his Prior Counsel reviewed the Draft Plea Agreement, specifically, Guidice's criminal history category, the statutory and Sentencing Guidelines provisions, and the fact that the stipulated guidelines range was not binding on the Court or the Probation Department. Prior Counsel did not, however, specifically advise Guidice of the risk that when preparing the PSR the Probation Department might conclude that Guidice was correctly placed in a higher criminal history category. Prior counsel did discuss with Guidice the fact that he could not withdraw his plea should his sentence be higher than the guidelines range contained in the Draft Plea Agreement, that his sentence would be determined solely by the Court, and that Guidice could appeal should his ultimate sentence exceed the guidelines range to which he stipulated.

  The Plea Agreement was signed by Guidice and his Prior Counsel on January 14, 2003.*fn1 It is identical to the Draft Plea Agreement that Prior Counsel discussed with Guidice on January 7, except that the Plea Agreement calculated Guidice's offense level to be 15, based on a determination that Guidice was between a minor and minimal participant in the offense. The sentencing guidelines range to which Guidice stipulated in the Plea Agreement, 37 to 46 months' imprisonment, was therefore lower than the range in the Draft Plea Agreement. Guidice's criminal history classification, however, remained unchanged. The Plea Agreement specifies that "it is understood that the defendant will have no right to withdraw his plea of guilty should the sentence imposed by the Court be outside the Stipulated Guidelines Sentencing Range of 37 to 46 months."

  The Court reviewed the Plea Agreement with Guidice when he entered his guilty plea on January 16, 2003. The Court advised him that the maximum sentence for the crime to which he pleaded guilty is twenty years' imprisonment. Guidice again acknowledged that he understood that the Court is not bound by the calculation of the guidelines range contained in the Plea Agreement and that he could not withdraw his plea should his actual sentence differ from that calculation. Specifically, the Court questioned Guidice as follows:
THE COURT: Even if your sentence is different from what your attorney or anyone else has told you it might be, even if it is different from what is calculated in a written agreement you would have with the government, you are still going to be bound by your plea of guilty, and cannot withdraw your plea of guilty. Do you understand that?
GUIDICE: Yes, I do.
THE COURT: Do you understand that if your attorney or anyone else has attempted to predict to you what your sentence may be, that their prediction could be wrong? Do you understand that?
GUIDICE: Yes, I do.
THE COURT: No one, not your lawyer, not the government's lawyer, no one, can give you any assurance of what your sentence will be, because I am going to decide your sentence, but I am not going to do it now. I am going to wait, wait till I get a presentence report prepared by the probation department, do my own calculation of what your guidelines range is, decide whether I should depart up or down. And only than [sic] will I decide your sentence. Do you understand that?
GUIDICE: Yes, I do.
Guidice thus expressed his understanding that the Court would review the PSR and would conduct its own calculation of Guidice's guidelines range before determining his sentence:

  On or about May 26, 2003, the parties received a draft of the PSR ("Draft PSR"), which concluded that Guidice's 1992 assault conviction, in combination with his 1997 federal bank robbery conviction and his conviction for conspiracy to commit extortion in the present case, qualifies Guidice as a career offender under the Sentencing Guidelines. U.S.S.G. § 4B1.1. Section 4B1.1 provides that

 
A defendant is 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 . . . a crime of violence . . . and (3) the defendant has at least two prior felony convictions of . . . a crime of violence.
U.S.S.G. § 4B1.1(a). A "crime of violence" is defined as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force against the person of another. . . ." U.S.S.G. § 4B1.2 (a). Based on Guidice's status as a career offender, the Draft PSR determined that his guidelines sentencing range is between 151 to 188 months' imprisonment.

  Neither the Government nor Prior Counsel had discussed the possibility that Guidice's 1992 assault conviction could qualify him as a career offender under the Sentencing Guidelines. Under the New York Penal Law, in relevant part, a person is guilty of assault in the second degree when

 
(1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or . . . (4) He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or . . . (6) In the course of and in furtherance of the commission or attempted commission of a felony . . . or of immediate flight therefrom, he, or another participant if there by any, causes physical injury to a person other than one of the participants . . .
N.Y. Penal Law § 120.05. After receiving the Draft PSR, both parties independently researched whether Guidice's 1992 assault conviction qualified as a crime of violence. While a conviction for second degree assault generally constitutes a crime of violence under the Guidelines, U.S.S.G. § 4B1.2, the parties determined that case law in this District supports the conclusion that a conviction under subsection six, N.Y. Penal Law § 120.05(6), would not be classified as a crime of violence.

  In calculating Guidice's criminal history category, both the Government and Prior Counsel had relied, on a copy of his rapsheet, which included his 1992 state conviction for assault in the second degree but did not specify the subsection of the New York Penal Law under which Guidice was convicted. N.Y. Penal Law § 120.05. After receiving the Draft PSR, the Government obtained the relevant state court records, and both parties then concluded that Guidice had been convicted under Section 120.05(1), N.Y. Penal Law, that his 1992 conviction for assault constitutes a crime of violence, and that Guidice is therefore a career offender under Section 4B1.1.

  The Government offered Guidice a revised plea agreement ("Revised Plea Agreement"), under which the parties would agree that the correct sentencing guidelines range is between 151 and 188 months, Guidice would reserve the right to make a motion for downward departure on the ground that his criminal history category of Level VI overstates the seriousness of his criminal history, and the Government would reserve the right to oppose that motion. On July 24, 2003, Guidice informed the Court and the Government that he had rejected the Revised Plea Agreement and instead sought to file a motion to withdraw his guilty plea.

  On August 22, 2003, this Court denied Guidice's request for the appointment of new counsel. On September 26, 2003, Guidice, through Prior Counsel, moved to withdraw his plea pursuant to Rule 32(e), Fed.R.Crim. P., on the ground that the Government breached the Plea Agreement. The Court denied this motion on November 25, 2003. United States v. Guidice, 2003 WL 22779263 (S.D.N.Y. Nov. 25, 2003) (DLC). On December 19, Prior Counsel submitted a motion for a downward departure based on Guidice's poor health and advanced age, on his criminal history category's over-representation of the likelihood of recidivism, and on the totality of the circumstances.

  This Court again denied Guidice's request for the appointment of new counsel on January 5, 2004. On January 7, 2004, Guidice wrote a letter to the Court including the following:
Could no one really have known, when I agreed to the plea deal, what the effects of my past record would be? Does it matter? . . . You said during my plea that in the end sentencing would be at your discretion. But I feel like I've been also set up by other people involved in this. I recognize that I'm no angel, but twelve or more years is a death sentence for me.
The Court appointed new counsel ("Counsel") for Guidice on January 12, 2004. On March 10, Counsel ...

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