The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On April 1, 2008, Petitioner Artour Arakelian moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, and on August 8, 2008, Petitioner filed a memorandum of law in support of his petition. Petitioner contends that 1) he received ineffective assistance of counsel from Cheryl Sturm, Esq., and 2) that the Court imposed an unreasonable sentence on him by purportedly failing to consider statistics maintained by the United States Sentencing Commission for sentences "imposed locally and nationally on similarly situated offenders." For the reasons that follow, the petition is denied.
1. FACTUAL BACKGROUND*fn1
In the fall of 2003, Petitioner Artour Arakelian conspired together with others to form Lexington Royce & Associates (the "Company"), a company designed to fleece unsuspecting investors of their savings by offering them an opportunity to "invest" in its "Managed Account Program." The Company, which held itself out as having a twenty-two year history as a foreign exchange currency dealer, touted this program as a successful pooled fund by which retail investors could engage in foreign currency transactions.
From September 2003 to April 2004, Lexington Royce collected approximately $4 million from investors. After obtaining these funds, the Company did not invest in foreign currency exchange accounts; rather, the Company transmitted the fraudulently-obtained moneys to foreign bank accounts or to a second sham corporation called 65J, Inc. Petitioner operated Lexington Royce with a single secretary; unidentified salesmen solicited business for the Company from outside of the office via mobile phone.
Petitioner was arrested on April 14, 2004 and charged in a criminal complaint with wire fraud in violation of 18 U.S.C. § 1343. On April 29, 2004, Samuel Sloan Weissman, Esq., entered his notice of appearance for Petitioner, and on May 10, 2004, the grand jury indicted Petitioner, charging him with five fraud-related counts. Weissman appeared with Petitioner at his arraignment, and there, the Court set a trial date of September 27, 2004. On September 9, 2004, Mr. Weissman requested an adjournment of the trial from the Court, explaining that Richard Jasper, Esq., had been recently retained as co-counsel to assist Mr. Weissman at trial and Jasper needed time to prepare.
On September 15, 2004, the Government filed a superseding indictment containing a conspiracy count and four additional counts of wire fraud. The superseding indictment also alleged enhancements for losses of over $2.5 million, more than fifty victims, and "sophisticated means" on which the Government would seek the jury's determination. And on September 29, 2004, the Government filed a second superseding indictment, to which Petitioner pleaded not guilty. During the time between the first and second superseding indictments, the Government communicated a plea offer to Petitioner of 46 to 57 months imprisonment under the United States Sentencing Guidelines (U.S.S.G.). After speaking with attorneys Weissman and Jasper, Petitioner rejected the plea offer.
On November 22, 2004, after significant pretrial litigation irrelevant to the current petition, Petitioner pled guilty to Counts One through Ten of the second superseding indictment, without the benefit of a plea agreement. (11/22/2004 Transcript ("Tr.") 21-27.) In advance of the plea proceeding, the Government provided Petitioner with a letter pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), which set forth the Government's understanding at that time of the application of the Guidelines to Petitioner's case. The Government indicated that the adjusted offense level was 32, comprising: 1) a base offense level of 7, 2) an 18-level enhancement for the estimated loss of more than $2,500,000, 3) a four-level enhancement because the offenses involved more than 50 victims, 4) a two-level enhancement because the offense involved sophisticated means, 5) a three-level enhancement because Petitioner was a manager or supervisor in an offense that involved five or more participants, and 6) a two-level reduction for acceptance of responsibility. Petitioner was projected to have a Guidelines range of 121 to 151 months' imprisonment.
During the plea allocution, the Court ensured that Petitioner was competent to enter a guilty plea; that Petitioner was aware of the charges against him, the maximum penalties he faced as a result of those charges, and the rights that he would be waiving by pleading guilty, and; that there was a factual basis for Petitioner's guilty plea. (11/22/2004 Tr. 3-16, 21-27; see also Arakelian, 2005 U.S. Dist. LEXIS 19498, at *8.) Petitioner admitted that he "knowingly participated in an agreement with others to obtain money from individuals through a scheme with caused those individuals to make investments in a company called Lexington Royce & Associates," and further, that he "knew that this was wrong." (11/22/04 Tr. 29.) At that time, Petitioner stated that he was satisfied with the representation he had received from Weissman and Jasper, and that he had not received any promises concerning the sentence he would receive. (11/22/2004 Tri. 4-5.) The Court accepted Petitioner's guilty plea to Counts One through Ten of the Indictment, and set sentence for February 23, 2005. (Tr. 11/22/2004 at 32-33.)
On March 3, 2005, relying on United States v. Booker, 543 U.S. 220 (2005), Petitioner filed a lengthy sentencing memorandum in which he requested a sentence of between 24 and 36 months, well below the applicable guidelines. On March 18, 2005, the Government filed a letter objecting to Petitioner's request for leniency, and on March 23, 2005, the parties appeared for sentencing. After extensive colloquy with the Court, Petitioner requested an adjournment, which was granted. In mid-May of 2005, Petitioner submitted two letters to the Court, dated May 13 and 16, regarding his upcoming sentence.
In these letters, Petitioner admitted his knowing participation in the Lexington Royce fraud; conceded that he had rejected the Government's plea offer because he hoped to get even less jail time; and, for the first time, claimed that his attorneys had not represented him effectively. Petitioner also notified the Court that he wished to withdraw his guilty plea. Petitioner further requested the assignment of new counsel because he could not afford new counsel. See Arakalian, 2005 U.S. Dist. LEXIS 19498, at *10-11.
At a conference held on May 18, 2005, Weissman notified the Court that Petitioner had retained Cheryl Sturm, Esq, as his new counsel. On May 31, 2005, Sturm entered an appearance as Petitioner's new counsel, and on July 12, 2005, Petitioner, represented by Sturm, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241.
The petition asserted that Petitioner had been deprived of his right to effective assistance of counsel at the plea bargaining stage, and that the appropriate remedy for this ineffective assistance by Weissman and Jasper was the imposition of the forty-six month sentence originally offered by the Government during the plea negotiations. See Arakelian, 2005 U.S. Dist. LEXIS 19770. In connection with this petition, Petitioner filed a sworn declaration asserting, among other things, that:
2. Mr. Jasper said that if I was not going to hire him I should consider taking the plea offer. He told me I should not go to trial with Mr. Weissman. I understood Mr. Jasper to mean that if I hire him, he could get me a better plea than 46 months.
5. If Mr. Jasper had told me the best thing for me to do was to take the 46 month plea offer, I would have taken the offer.
Arakelian, 2006 U.S. Dist. LEXIS 19698, at *9. The Government responded that a Section 2241 petition was an inappropriate procedure vehicle for bringing such a claim, and further, that Petitioner's factual claims were unworthy of belief.
By order dated September 8, 2005, the Court dismissed Petitioner's Section 2241 petition. See Arakelian, 2005 U.S. Dist. LEXIS 19770. Citing a decision issued by the Honorable Denise L. Cote (United States v. Gonzalez, 2001 U.S. Dist. LEXIS 13096 (S.D.N.Y. 2001)), the Court observed that "[p]etitions for habeas corpus pursuant to 28 U.S.C. 2241 do not generally lie prior to sentencing." Arakelian, 2005 U.S. Dist. LEXIS 19770 at *2-3. The Court further observed that the petition was inherently defective because it did not contest the legality of Petitioner's custody, but rather sought reinstatement of a prior plea offer. Id. at *4. The Court did, however, schedule a Fatico hearing to consider Petitioner's ineffective assistance claims concerning the alleged failures by counsel Jasper and Weissman to advise him to accept a plea of 46-57 months imprisonment in September of 2004, and the Court further permitted Petitioner "to file his present papers as a motion pursuant to Section 2255 promptly after sentencing." Id.
On October 20 and 21, 2005, a Fatico hearing was held before this Court. At that hearing, Petitioner conceded that he never intended to go to trial, but rather "wanted to get the best plea bargain as possible" (10/21/2005 Tr. 297), and he admitted that he withheld certain information from his counsel. (10/21/2005 Tr. 294, 302-03.) In an opinion and order dated April 12, 2006, the Court concluded that Petitioner had obstructed justice by stating falsely in his declaration under oath that he would have taken the Government's plea had he been so advised by his counsel, and also, by misrepresenting the nature of the legal advice he actually received from Jasper. Arakelian, 2006 U.S. Dist. LEXIS 19698, at *9. The Court also ruled that Petitioner was still entitled to ...