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Smith v. United States

July 14, 2008

SHARON ANN SMITH, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER*fn1

A.

I. Background

On February 18, 2004, Smith appeared before this Court to enter a change of plea pursuant to a written plea agreement into which she had entered with the Government. See 04-CR-0065, Dkt. No 5. In that agreement, Smith pleaded guilty to one count of embezzlement from a credit union in violation of 18 U.S.C. § 657. See Plea Agreement (04-CR-0065, Dkt. No. 4) ("Plea Agreement"). On August 30, 2004, she was sentenced by this Court principally to a term of imprisonment of 46 months. 04-CR-0065, Dkt. No. 12.

Smith's counsel filed an appeal on her behalf on September 8, 2004, see 04-CR-0065, Dkt. No. 14, and on August 18, 2005, the Second Circuit issued a mandate dismissing that appeal. 04-CR-0065, Dkt. No. 21.

On August 26, 2005, Smith filed the present Motion to Vacate, Set Aside or Correct her Sentence pursuant to 28 U.S.C. § 2255. See 05-CV-1089, Dkt. No. 1.

II. Discussion

Smith asserts four grounds in support of her application. See Motion to Vacate. The Court addresses each of her claims seriatim.

A. Enhancement Applied to Her Sentence

In her first ground for relief, Smith contends that this Court erroneously applied a two level enhancement to her total offense level in determining the guideline range of imprisonment to which she was subject. See Motion to Vacate, Ground One. Specifically, Smith notes that her offense level was increased due to this Court's finding that she had abused a position of trust during the commission of her crimes. Id.; see also U.S.S.G. § 3B1.3.*fn2 She argues that the enhancement should not have been applied because her thefts from the credit union started before she was promoted to the position of manager of that entity. Id.

Initially, this Court finds that Smith is precluded from asserting this claim due to the valid appellate waiver she executed in conjunction with her guilty plea. See Plea Agreement at ¶ 12; Transcript of Change of Plea (2/18/04) (04-CR-0065, Dkt. No. 23) ("Plea Tr.") at p. 18 (Smith acknowledging that she understood appellate waiver); see also United States v. Roque, 421 F.3d 118, 121-22 (2d Cir. 2005).

Moreover, this claim is substantively without merit. "The primary trait that distinguishes a position of trust from other positions is the extent to which the position provides the freedom to detect a difficult wrong." United States v. Laljie, 184 F.3d 180, 194 (2d Cir. 1999) (internal quotation marks and citation omitted).

In the underlying criminal action, Smith admitted to having created approximately 136 fraudulent loans. See Plea Agreement ¶ 5. The record reflects that only 12 of those fraudulent loans were created by her prior to the time she was promoted to union branch manager of the credit union, a position she held for approximately eight years while she engaged in the criminal conduct alleged in the Criminal Information.*fn3 Additionally, in her plea agreement, Smith admitted that she had abused a position of trust while engaging in her criminal conduct and that a two level enhancement to her sentence should therefore apply pursuant to U.S.S.G. § 3B1.3. See Plea Agreement at ¶ 8(b). Thus, as this Court noted at her sentencing, the subject enhancement was appropriate in light of the facts and circumstances relevant to the charges brought against her. See Transcript of Sentencing (8/30/04) ("Sentencing Tr.") at p. 5.

Since Smith clearly abused a position of trust during the commission of her crimes, her first ground for relief, which challenges the enhancement of her sentence on that ground, must (alternatively) be denied for substantive reasons.

B. Ineffective Assistance of Counsel

Petitioner next claims that she received the ineffective assistance of counsel during the course of the related criminal proceedings. See Motion to Vacate, Ground Two. In support of this claim, she argues that her counsel "insisted that [she] sign [the] plea agreement," notwithstanding the fact that it was purportedly "incorrect." Id. She also asserts that her attorney "never informed [Smith of her] rights, very rarely ...


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