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Lisnoff v. United States

May 18, 2006

X ROBERT LISNOFF, PETITIONER
v.
UNITED STATES, RESPONDENT.



The opinion of the court was delivered by: Garaufis, United States District Judge.

MEMORANDUM & ORDER

Presently before the court is the habeas appeal of pro se petitioner Robert Lisnoff ("Petitioner" or "Lisnoff") pursuant to 28 U.S.C. § 2255, challenging his sentencing in the underlying criminal matter United States v. Robert Lisnoff, 00-CR-1248 (NGG). Lisnoff argues that the enhancement of his offense level by five levels at sentencing is unconstitutional under the Supreme Court cases of United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000). Under the holdings of these cases, the Petitioner argues that he is entitled to re-sentencing. For the reasons set forth below, the petition is DENIED.

I. Background and Procedural History

On November 27, 2002, the Petitioner pleaded guilty to conspiracy to commit securities fraud in violation of 18 U.S.C. § 371, and of securities fraud in violation of 15 U.S.C. § 78ff arising from his involvement in a "boiler room" stock fraud scheme. (See 00-CR-1248 ECF Docket). The plea agreement was signed on that date, and the Petitioner was sentenced before this court on April 30, 2004. (Docket Entry ("DE") Nos. 530, 531). In the plea agreement signed by Lisnoff, he agreed that he would "not file an appeal or otherwise challenge the conviction or sentence [he received] in the event that the court imposes a term of imprisonment of 46 months or below." (See Plea Agreement, at 4, attached to Petitioner's Memorandum of Law in Support of Habeas Petition ("Pet.'s Br."). At his April 30, 2004 sentencing, he was sentenced to 37 months imprisonment and three years supervised release. (DE No. 531).

On February 28, 2005, the Petitioner timely filed this 28 U.S.C. § 2255 petition. In his Memorandum in Support, filed with the petition, he put forth two principal arguments. Petitioner first argues that, in light of the Booker decision, he "unlawfully and improperly" received a five level enhancement at sentencing, and that the holding of Booker should apply retroactively to his sentencing. (See Pet.'s Br. ¶¶ 6-28). Second, the Petitioner urges the court to find that the filing of his 2255 petition did not violate the express waiver contained in his plea agreement because a 2255 petition should not be considered an "appeal" and thus is not covered by the plea agreement's terms and conditions. (See id. ¶¶ 35-36).

On May 16, 2005, Lisnoff filed a Supplemental Memorandum of Law in Support of his 2255 petition ("Pet.'s Supp. Br."). In this supplemental brief, Lisnoff abandons the argument that Booker should apply retroactively, in light of intervening Second Circuit precedent squarely foreclosing that argument. Instead, he contends that the Booker decision was only a confirmation of the Supreme Court's earlier decision in Apprendi v. New Jersey, which was decided at the time of his conviction and sentence. He argues that under Apprendi, the five level enhancement imposed at his sentencing was an unconstitutional violation of his Sixth Amendment rights. (See Pet.'s Supp. Br. at 2-3).

The Government responded to the petition by letter dated June 22, 2005 ("Govt. Resp."), arguing that the Petitioner waived his right to bring a 2255 collateral attack when he signed his plea agreement, and that the Petitioner was not entitled to habeas relief under either Booker or Apprendi.

II. Discussion

A. Petitioner Waived the Right to Bring a Section 2255 Habeas Challenge

Lisnoff's 2255 habeas petition fails because the Petitioner, in his plea agreement, explicitly agreed that he would "not file an appeal or otherwise challenge the conviction or sentence in the event that the Court imposes a term of imprisonment of forty-six months or below." (Plea Agreement, at 4). The court imposed a sentence of thirty-seven months, short of the forty-six month threshold, therefore triggering the waiver provision. See United States v. Pipitone, 67 F.3d 34, 39 (2d Cir. 1995) (holding 2255 petitioner procedurally barred from challenging sentence within guideline range because of the petitioner's "explicit undertaking in the [Plea] Agreement not to appeal a sentence that fell within a guideline range of 63-78 months"). In Pipitone, the Circuit Court noted that "[w]hatever linguistic distinction may be made between an 'appeal' and a § 2255 petition, we are loathe to countenance so obvious a circumvention of a plea agreement." Id. at 39; see also Kaiser v. United States, No. 00-CV-5718, 2001 WL 237382, *2 (S.D.N.Y. March 9, 2001) ("In no circumstances . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless.") (internal quotation and citations omitted).

I am unpersuaded by the Petitioner's argument that the terms of his plea agreement only precluded him from pursuing a direct appeal of his sentence, and that a 2255 petition falls outside the scope of the agreement's waiver provision. For one, Second Circuit precedent suggests that such a distinction is not warranted in light of the fact that the "government, this court, the public, and criminal defendants have legitimate interests in the integrity of the plea bargaining process and in the finality of sentences thus imposed. Pipitone, 67 F.3d at 39; see also Kaiser, 2001 WL 237382, at *2 n.4 ("In referring to the waiver of appeal provision, the Court of Appeals applies the same waiver principles to the waiver of the right to appeal and waiver of a Section 2255 challenge.").

Moreover, the transcript of Lisnoff's plea hearing demonstrates that Lisnoff fully understood the waiver provision when he knowingly and voluntarily signed his plea agreement, and thus he is bound to it. See United States v. Chen, 127 F.3d 286, 289 (2d Cir. 1997). Specifically, the following questions were asked by the court and answers given by the Petitioner:

Q: Do you understand that you have the right to appeal only if I sentence you ...


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