United States District Court, S.D. New York
July 16, 2004.
TUCSON VANLOO, Petitioner,
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Opinion and Order
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
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
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
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
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
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.