United States District Court, S.D. New York
October 7, 2005.
TONY MERCEDES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
OPINION and ORDER
Before the Court is the pro se motion of Petitioner Tony
Mercedes ("Mercedes" or "Petitioner") to vacate, set aside, or
correct his sentence pursuant to 18 U.S.C. § 2255 ("§ 2255"). For
the reasons discussed below, the motion is denied.
On January 4, 2000, Mercedes was arrested and charged with
participating in a conspiracy to commit robbery and committing
robbery. He was also charged with using a firearm in connection
with that crime. On January 19, 2000, a Grand Jury returned a
three-count indictment, charging that Mercedes obstructed
commerce by conspiring to commit and committing robbery, in
violation of 18 U.S.C. §§ 1951 ("Hobbs Act") and 1952, and using
a firearm in connection with the crime, in violation of
18 U.S.C. § 924 (c).
On December 20, 2000, Mercedes pled guilty to all three counts
of the Indictment, pursuant to a written plea agreement. The plea
agreement provided that the Stipulated Guidelines Range was 37 to
46 months for the robbery, plus another 84-month mandatory
consecutive sentence for the firearms charge. The agreement also
stipulated that the Court could enhance the sentence on the first
two charges to 46 to 57 months if it found that Mercedes had
tried to obstruct justice by encouraging friends to create a false alibi on his behalf. The Court
concluded that the Petitioner had obstructed justice and raised
his stipulated range from 121 to 130 months to 130 to 141 months.
Petitioner agreed that he would not appeal or otherwise litigate
under § 2255 any sentence within or below the stipulated United
States Sentencing Guidelines range. Plea Agreement at 5-6. In
Petitioner's plea agreement, he further agreed that "any appeal,
or litigation brought pursuant to Title 28, United States Code,
Section 2255, will be limited exclusively to the issue of whether
Tony Mercedes' conduct merits the two-level sentencing
enhancement" for obstruction of justice. Id. at 5.
During the December 20, 2000 plea allocution, Mercedes
confirmed that his lawyer fully explained the provisions of the
plea agreement and that he understood the plea agreement:
THE COURT: Did [your lawyer] explain this to you,
this plea agreement that I am holding up in my hand?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you really feel you understand it?
THE DEFENDANT: Yes.
Plea Transcript at 13.
Mercedes also confirmed that he understood the agreement's
THE COURT: Do you realize, under the provisions of
this plea agreement, you have waived any right you
have to appeal if I sentence you within the range set
forth in the plea agreement or if I sentence you to
less than that range under the guidelines. Do you
. . . .
THE DEFENDANT: Yes, sir. Id. at 15.
Mercedes further confirmed that he was entering voluntarily
into the plea agreement:
THE COURT: Are you offering to plead guilty of your
own free will?
THE DEFENDANT: Yes, your Honor.
He admitted that he and his accomplice robbed a television
repairman and that he was, in fact, aware that the victim fixed
television sets in his apartment. Id. at 16-17. The Court
accepted Mercedes' plea. Id. at 21.
On April 23, 2001, the Court sentenced Mercedes to 130 months
in prison. Sentencing Transcript at 10. On September 7, 2001,
Mercedes filed a notice of appeal, challenging the sentencing
enhancement for obstruction of justice. The Court of Appeals for
the Second Circuit dismissed the appeal. United States v.
Feliz, 286 F.3d 118 (2d Cir. 2002).
On June 16, 2003, Mercedes filed the instant petition, seeking
relief from his sentence on constitutional grounds. He claims he
was denied effective assistance of counsel. His attorney, he
alleges, should have challenged the government's claim that
Petitioner's robbery was a Hobbs Act violation, and should
therefore not have advised Petitioner to take the plea agreement.
Petitioner argues that the Hobbs Act was inappropriate in his
case because the Act requires robbery of a legitimate business involved in interstate commerce, whereas the
victim of his crime did not run a legal business. Petitioner
requests the Court vacate, set aside, or correct his sentence
pursuant to § 2255.
I. Petitioner Waived His Right to File a § 2255 Petition in
His Plea Agreement
The Court of Appeals for 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 the stipulated Guidelines Range shall be enforced. United
States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998); United
States v. Yemitan, 70 F.3d 746, 747-48 (2d 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 (2d Cir. 1993). Therefore, once a defendant has secured the
benefits of a plea agreement he or she is foreclosed from appeal
except for very specific, extraordinary circumstances. Id. at
Under this plea agreement, Mercedes explicitly waived his right
to file a § 2255 motion for "any sentence within or below the
stipulated Sentencing ranges set forth" in the Plea Agreement.
Plea Agreement at 5-6. He also agreed that any § 2255 motion
would be limited exclusively to a challenge of the sentence enhancement for obstruction of justice. Id. at 5.
Here, the range was 130-141 months (with the obstruction of
justice enhancement). The Court sentenced Mercedes to 130 months,
which is within the stipulated range and, in fact, at the lowest
sentence within the range. Moreover, his instant motion is not
based on the sentence enhancement, but rather on a claim of
ineffective assistance of counsel.
Mercedes made this plea agreement knowingly and intelligently.
The Court specifically asked Mercedes at the plea allocution
whether he understood that he was giving up his right to appeal
or in any other way litigate his sentence if it fell within the
range stipulated by the plea agreement, and Mercedes responded
affirmatively. Plea Transcript at 15. Of particular importance
when evaluating Mercedes' ineffective assistance of counsel
claim, Mercedes stated during the plea allocution that his
defense counsel had reviewed the Plea Agreement with him before
he signed it, and that he understood the terms of the Agreement.
Id. at 13-15. Because Petitioner's guilty plea and waiver were
made knowingly and intelligently, Petitioner is barred from
making the present § 2255 motion.
II. Mercedes's Ineffective Assistance of Counsel Claims Are
Petitioner correctly asserts that one could find relief from a
plea agreement if the Court finds extraordinary circumstances,
such as ineffective assistance of counsel in connection with the plea. United States v. Hernandez,
242 F.3d 110, 113-14 (2d Cir. 2001); United States v. Ready,
82 F.3d 551, 555-56 (2d Cir. 1996).
In this case, extraordinary circumstances relief is not
available because, as discussed below, there are no grounds for
finding ineffective assistance of counsel in connection with
Mercedes' plea agreement.
A. The Standard for Proving Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court of the United States established a two-prong test to
determine whether the representation provided to a defendant was
ineffective. Petitioner 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). 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. The Supreme
Court has also held that 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). B. Petitioner's Claim Does Not Satisfy the Strickland
Test: Counsel's Performance Was Objectively Reasonable
Petitioner claims that his attorney acted unreasonably because,
as a matter of law, there was no federal Hobbs Act jurisdiction
and, therefore, counsel should not have advised Petitioner to
plead guilty. He claims the armed robbery of the victim could not
impact the flow of commerce because the victim ran an illegal
business. The Court rejects this argument.
The Hobbs Act prohibits conduct that affects commerce "in any
way or degree." 18 U.S.C. § 1951 (a). It is well established that
the burden of proving such a nexus is "de minimis." United
States v. Arena, 180 F.3d 380, 389 (2d Cir. 1999); United
States v. Farrish, 122 F.3d 146, 148 (2d Cir. 1997), cert.
denied, 522 U.S. 1118 (1998). Even the "possibility or
potential of an effect on interstate commerce, not an actual
effect," is sufficient to prosecute under the Hobbs Act. United
States v. Jones, 30 F.3d 276, 285 (2d Cir. 1994), cert.
denied, 513 U.S. 1028 (1994).
The Second Circuit has also noted that illegal businesses are
subject to Hobbs Act jurisdiction. United States v. Fabian,
312 F.3d 550, 555 (2d Cir. 2002) (holding that robbery of a loan
shark falls within the scope of the Hobbs Act because loan
sharking has an effect on interstate commerce). The
jurisdictional nexus will be satisfied by a showing that the
victim of a robbery directly participated in interstate commerce, even if that participation was illegal. United States v.
Jamison, 299 F.3d 114, 121 (2d Cir. 2002) (holding illegal drug
business to be a business operating in interstate commerce and
therefore subject to Hobbs Act jurisdiction), cert. denied,
538 U.S. 1025.
Petitioner contests only the nature of the victim's business.
It is undisputed that the victim did run some sort of a business
out of his apartment. That petitioner planned on robbing a
business, which would undoubtedly have had some impact, no matter
how minute, on the stream of commerce, is enough to satisfy the
required nexus with interstate commerce. Given the "de minimis"
standard and the facts of this case, Petitioner's counsel was,
therefore, not ineffective for failing to challenge the
Government's ability to prosecute under the Hobbs Act.
Petitioner's ineffective assistance of counsel claim does not
satisfy the first prong of the Strickland test. Because
Petitioner's claim fails the first Strickland prong, and both
prongs must be satisfied, this Court will not address the issue
of prejudice. Petitioner's § 2255 motion is denied.
Mercedes' motion pursuant to 28 U.S.C § 2255 to vacate, set
aside, or correct his sentence is hereby denied. Because the
Petitioner has not made a substantial showing of 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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