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United States District Court, S.D. New York

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 of the defendant to plead guilty or accept a particular plea bargain."). This, of course, does not mean that Petitioner satisfies his claim of ineffective assistance of counsel. It merely means he has the right to have his claim considered.

  II. The Strickland Test as it applies here.

  In Strickland v. Washington the court established a two prong test to determine whether the representation provided to a defendant was ineffective. 466 U.S. 668, 681-82 (1984). Pursuant to the test articulated in Strickland, VanLoo must show: "(1) that counsel's representation fell below an objective standard of reasonableness measured by prevailing professional norms; and (2) that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different." United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998). In order for a defendant to prevail on an ineffective assistance claim he or she must overcome a strong presumption that counsel did act reasonably. Strickland, 466 U.S. at 687-89. A. VanLoo's Counsel Acted Reasonably.

  VanLoo has failed to offer any evidence that his counsel acted unreasonably. His argument is premised on the assertion that his attorney acted unreasonably by failing to obtain a better plea agreement for Petitioner, and that his counsel should have found a way for Petitioner to plead guilty to a lesser crime than that to which Petitioner eventually pleaded guilty. VanLoo must overcome the strong presumption that his attorney acted reasonably, and show exactly how his attorney's actions were unreasonable. Id. at 687-89. VanLoo's suggestion that his lawyer should have obtained a more favorable plea agreement is based solely on VanLoo's own misguided view of the case against him and what he believes his lawyer should have persuaded the government to agree to. Considering the indictment that VanLoo faced, the Court finds the agreement obtained by VanLoo's counsel quite reasonable. Id. As such, counsel's conduct clearly does not fall below an objective standard of reasonableness. VanLoo's petition, therefore, fails the first prong of the Strickland test. Id. at 687. VanLoo also contends that, had he had time to "deal with the ideas of the plea agreement, [he] would definitely [have] instructed [his attorney] to investigate all alternatives [to the plea agreement]". Pet. at ¶ 13. This contention, however, is in conflict with VanLoo's sworn statements at his allocution:

THE COURT: And prior to signing the plea agreement, did you read it?
VANLOO: Yes, sir.
THE COURT: Did you discuss it with Mr. Jasper [your attorney]?
VANLOO: Yes, sir.
THE COURT: Did he explain to you what each provision of the agreement said and what it meant?
VANLOO: Yes, he did.
THE COURT: Did he explain to you what the effect on you would be of entering into such an agreement with the government?
VANLOO: Yes, sir.
Plea Tr. at 12.

  A defendant's plea of guilty based on reasonably competent advice of an attorney is deemed an intelligent plea not open to attack. McMann v. Richardson, 397 U.S. 759, 769 (1970). When weighing the arguments within the Petitioner's motion, the Court must rely upon the petitioner's past sworn statements, made in open court, that he understood the plea agreement, and that he understood the consequences of his plea. Hernandez, 242 F.3d at 112. Nothing VanLoo has presented contradicts his sworn testimony given at his plea allocution or supports a conclusion that the performance of VanLoo's attorney fell below professional norms. Nor has Petitioner shown that his decision to plead guilty was based on unprofessional or incompetent advice from his attorney. McMann, 397 U.S. at 769 (1970).

  Based simply on the indictment against VanLoo, had this case gone to trial and had VanLoo been found guilty, he would have faced at least twenty years in prison. It is common for a criminal defendant facing the prospect of a lengthy prison term to plead guilty to minimize his sentence. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the government's case. Id. Part of the role of defense counsel is to use his or her knowledge and experience to assist the client in evaluating the strength of the government's case and assist in determining whether entering into a plea agreement is prudent. Although a defendant must be able to expect that his lawyer's advice is reasonable, undoubtedly, petitioner takes a calculated risk when he demurs to the judgment of his attorney. Id. Considering the potential punishment that VanLoo faced, it can hardly be said that counsel's advice that VanLoo accept the plea agreement was unreasonable. Id.

  B. Vanloo was NOT prejudiced by his counsel's failure to secure a Minor Role Adjustment.

  VanLoo argues that his sentence was prejudiced by his attorney's failure to secure a Minor Role Adjustment. VanLoo argues that he was entitled to a downward adjustment because of the relatively small quantity of narcotics with which he was found — and otherwise admits to have been responsible for transporting — and for his role, or lack thereof, as compared to others associated with the drug conspiracy.

  In order to qualify for a Minor Role Adjustment a defendant must show that he or she is less culpable than most other participants. USSG § 3B1.2 (2003). The burden is on the defendant seeking the downward departure to prove by a preponderance of the evidence that he is entitled to a Minor Role Adjustment. United States v. Castano, 234 F.3d 111, 112 (2d Cir. 2000). The Second Circuit has held that simply playing a lesser role than other co-conspirators does not render a defendant eligible for a reduction. The defendant's conduct must be minor as compared to the average participant in a crime of the nature with which the defendant is charged. Castano, 234 F.3d at 112; United States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999).

  The Second Circuit has rejected the argument that a defendant is automatically entitled to a minor role adjustment simply because he or she is only a courier. Rather, the determination of whether the minor role adjustment that petitioner seeks is appropriate is very fact specific. Garcia, 920, F.3d at 155. The determination of whether a role adjustment is appropriate in "courier" or "mule" cases depends upon "the nature of the defendant's relationship to the other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise." United States v. Idowu, 74, F.3d 387, 397 (2d Cir. 1996); see Garcia, 920 F.3d at 155.

  Petitioner, in his application, characterizes his involvement as minimal to minor. See Pet. pp. 7-9. A sentencing court, however, is not bound to accept petitioner's self-serving characterizations of his role in an offense, particularly after he has pleaded guilty to that offense. United States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993). The record indicates that VanLoo was a courier on several occasions. He was caught transporting around $30,000 worth of cocaine, and pleaded guilty to transporting $75,000 worth of cocaine and $50,000 worth of heroin. The quantity of narcotics with which VanLoo was caught is alone enough to render him more than simply a minor player in the conspiracy. Garcia, 920 F.2d at 155-56 (drug courier with $23,000 worth of cocaine was not a minor participant). Furthermore, VanLoo's pattern of travel, and his admissions of other drug related trips suggests sufficient knowledge and action on VanLoo's part to indicate that he did not merit a Minor Role Adjustment. Shonubi, 998 F.2d at 90-91.

  VanLoo also argues that, relative to the charges of responsibility for 70 kilograms of cocaine and 15 kilograms of heroin that the government threatened to bring against him, the crime to which he pleaded guilty — 5 kilograms of cocaine and 1 kilogram of heroin — was clearly minor. Culpability, however, is gauged by the elements of the offence, not simply by comparison to crimes of the co-conspirators or those crimes the government may have been able to charge the defendant with but for the plea agreement. United States v. Ajmal, 67 F.3d 12, 18 (2d Cir. 1995). VanLoo pleaded guilty to possession with intent to distribute 5 kilograms of cocaine and 1 kilogram of heroin, and it was for this crime that he was sentenced to 151 months in prison. There is no authority to support the suggestion that a sentence should be modified to somehow reflect the variance between what the government could have charged a defendant with and the crime to which the defendant eventually pleaded guilty. Such a variance is reflected in any benefits the defendant received by agreeing to the plea.

  VanLoo appears to have had a general knowledge of the structure, nature and scope of the drug ring for which he was working. He was a courier on several occasions for both drugs and drug money. This is all indicated in the plea agreement that VanLoo signed and is therefore a matter of fact. This is enough for the Court to conclude that VanLoo was not deserving of a Minor Role Adjustment. Id.; see Idowu, 74 F.3d at 397. As such, VanLoo's counsel cannot be deemed ineffective for failing to secure the adjustment. Moreover, at the plea, Petitioner allocuted that he was satisfied with the representation and advice supplied by his attorney. Plea tr. supra. To allow his claim here would turn common sense upside down.


  VanLoo has failed to show that his attorney acted unreasonably, or in such a fashion as to negatively impact VanLoo's eventual prison sentence of 151 months. VanLoo is not, and was not, entitled to a Minor Role Adjustment. His attorney cannot be considered ineffective for having failed to secure a Minor Role Adjustment for VanLoo.

  VanLoo's § 2255 motion is denied. Because the Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). This case is closed and the Court directs the Clerk of the Court to remove this case from the Court's active docket.


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