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