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July 16, 2004.

TUCSON VANLOO, Petitioner,
U.S., Respondent.

The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge

Opinion and Order

Preliminary Statement

On June 26, 2002, Tucson VanLoo ("VanLoo") pleaded guilty to violating 21 U.S.C. § 846, before the late Judge Allen G. Schwartz, and was subsequently sentenced to 151 months in prison. VanLoo has filed the instant motion pursuant to 28 U.S.C. § 2255 ("§ 2255") to vacate, set aside or correct his sentence. For the reasons outlined herein, petitioner's motion is denied.


  On October 30, 2001, VanLoo was arrested in Delaware while in possession of two kilograms of cocaine. He later admitted that his intent was to deliver that cocaine to Baltimore from New York. In his June 26, 2002, guilty plea VanLoo acknowledged participating in a conspiracy to distribute in excess of one kilogram of heroin and five kilograms of cocaine in violation of 21 U.S.C. § 846. During the course of his plea allocution Petitioner stated under oath that he understood the charges against him and the rights he was waiving by pleading guilty; that he was satisfied with the representation and advice given to him by his attorney Richard Jasper, Esq.; that he wished to plead guilty and was doing so voluntarily; and that he was guilty of conspiring to distribute at least one kilogram of heroin and five kilograms of cocaine as charged in the indictment. Plea Tr. at 6-12.*fn1 Judge Schwartz determined VanLoo to be competent and accepted the plea.

  As part of the plea agreement VanLoo entered into with the government, he agreed that so long as his sentence was within a Guidelines Range of 151 and 188 months as determined by an offense level of 33 and a criminal history category of II, he would not appeal or otherwise litigate under the sentence imposed. This agreement included not only a waiver of the right to appeal the sentence directly, but also to attack it collaterally under sections 2255 and 2241 of 28 U.S.C. On September 30, 2002, Judge Schwartz sentenced VanLoo to a term of imprisonment of 151 months, the low end of the Guidelines range. United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov. 2002).

  VanLoo did not contest his sentence on direct appeal. Instead, pro se, VanLoo has filed a § 2255 petition seeking relief from his sentence on constitutional grounds. He challenges the length of his sentence on the basis that he was unconstitutionally denied effective assistance of counsel. VanLoo claims his lawyer failed to make him "savvy" to the law on scope of participation, thereby leaving him unaware of to what, exactly, he was pleading guilty.

  Petitioner's ineffective assistance argument is not entirely clear. The government reads his petition to suggest that VanLoo's attorney, Richard Jasper, Esq., should have arranged for him to plead guilty without signing a plea agreement. Theoretically, doing so would have allowed VanLoo to argue for a "Minor Role Adjustment". The Court, on the other hand, believes VanLoo to be suggesting that his counsel was an ineffective negotiator who should have negotiated for VanLoo to receive a more favorable plea agreement and a lighter sentence.


  I. VanLoo has NOT waived his right to file a § 2255 motion.

  The initial question the court must address is whether VanLoo's plea agreement bars him from bringing an appeal on the grounds of ineffective counsel. The Second Circuit has held repeatedly that, short of extraordinary circumstances, a knowing and voluntary waiver of the right to appeal a sentence within or below a stipulated Guidelines Range shall be enforced. United States v. Djelevic, 161 F.3d 104, 106 (2nd Cir. 1998); United States v. Yemitan, 70 F.3d 746, 747-48 (2nd Cir. 1995). To permit defendants to appeal a sentence conforming to the plea agreement "would render the plea bargaining process and resulting agreement meaningless." United States v. Salcido-Contreras, 990 F.2d 51, 53 (2nd Cir. 1993).

  The Government contends that VanLoo, by signing the plea agreement, has waived his right to challenge his conviction on any grounds. Although the Second Circuit has held that a defendant's right to appeal his sentence may be waived, it has never directly held that such plea agreements foreclose appeal in every circumstance. United States v. Ready, 82 F.3d 551, 555 (2d Cir. 1996); Yemitan, 70 F.3d at 748. It has been implied, though never explicitly held, that the Second Circuit would not view a waiver of a right to appeal in a plea agreement to apply to a claim of ineffective assistance of counsel. Ready, 82 F.3d at 555-56; see also United States v. Hernandez, 242 F.3d 110, 113-14 (2nd Cir. 2001) ("We have suggested that a plea agreement containing a waiver of the right to appeal is not enforceable where the defendant claims that the plea agreement was entered into without effective assistance of counsel."); Djelevic, 161 F.3d at 107 ("Nor does [defendant] suggest that he received ineffective assistance of counsel in entering the plea agreement, an argument which, we have suggested, might cast doubt on the validity of his waiver."). In light of the implications in the Second Circuit opinions referred to above, the Court holds that, despite signing a plea agreement that included a waiver of the right to appeal, Petitioner has not foreclosed himself from appealing on the grounds of ineffective assistance of counsel at the time the plea agreement was entered into.

  The Court's decision on this aspect of petitioner's motion is consistent with the general trend throughout the federal court system. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (holding that a waiver of the right to appeal or file a § 2255 motion is unenforceable when the defendant claims ineffective assistance of counsel with regard to the agreement which effected the waiver); United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995) (holding that "dismissal of appeal based on a waiver in the plea agreement is inappropriate where the defendant's motion incorporates a claim that the plea agreement generally, and the defendant's waiver of appeal specifically, were tainted by ineffective assistance of council"); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) ("We doubt that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel's erroneously unprofessional inducement ...

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