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Carlos Macpherson v. United States of America

August 9, 2012

CARLOS MACPHERSON, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:

OPINION AND ORDER

Carlos MacPherson ("petitioner") filed this petition for a writ of habeas corpus, challenging his sentence pursuant to 28 U.S.C. § 2255. On June 20, 2007, petitioner pled guilty to one count of conspiring to import heroin and cocaine into the United States, in violation of 21 U.S.C. §§ 963 and 960(b)(2)(A) and (b)(1)(B)(ii). On April 9, 2008, this court sentenced petitioner to 262 months' imprisonment, five years of supervised release, with special conditions, and a $100 special assessment. Petitioner appealed his conviction and sought to withdraw his plea alleging, inter alia, that the government, acting in bad faith, breached the plea agreement by advocating for a sentence higher than the range estimated in the plea agreement. See United States v. MacPherson, 590 F. 3d 215 (2d Cir. 2009) (per curiam). Because petitioner made this allegation for the first time on appeal, the Second Circuit applied a plain error standard of review and held the government did not breach the plea agreement since "the agreement and the plea colloquy put the defendant on notice that the Pimentel estimate was not binding on the prosecutor and that if the estimate was wrong, the plea could not be withdrawn." Id. at 219. Accordingly, the judgment of the court was affirmed and petitioner's request to withdraw his plea was denied. Id. at 220.

Petitioner now seeks to vacate his sentence or conviction on the ground that his trial attorney rendered ineffective assistance of counsel by failing to object, at the sentencing hearing, to the government's alleged bad faith breach of the plea agreement. (See Docket Entry No. 1, Petitioner's Memorandum of Law ("Pet. Mem.").) For the reasons set forth below, the petition is denied in its entirety.

I.Background

A.The Plea Agreement

The history of this case warrants some discussion. On June 20, 2007, petitioner entered into a plea agreement with the government wherein he agreed to plead guilty to Count One of the Indictment, which charged him with conspiring to import into the United States 100 grams or more of heroin and five kilograms or more of cocaine. (See Docket Entry No. 4, Plea Agreement ("Plea Agrmt.") ¶ 1, attached as Exh. D to Government's Memorandum in Opposition to Petitioner's Motion Pursuant to 28 U.S.C. § 2255 ("Gov't Mem.").) Pursuant to United States v. Pimentel, 932 F. 2d 1029 (2d Cir. 1991), the plea agreement contained the government's U.S. Sentencing Guidelines sentence range estimate of 120 to 135 months' imprisonment. (Plea Agrmt. ¶ 2.) As part of the agreement, petitioner stipulated that his sentence should be calculated "based on a drug type and quantity of fifteen kilograms or more of a substance containing cocaine[.]" (Id.) The agreement also stated, in pertinent parts:

The Guidelines estimate set forth in paragraph 2 is not binding on the Office, the Probation Department or the Court. If the Guidelines offense level advocated by the Office, or determined by the Probation Department or the Court, is different from the estimate, the defendant will not be entitled to withdraw the plea. (Plea Agrmt. ¶ 3) (emphasis added.) .

The Office agrees that: . . . based upon information now known to the Office, it will

b. take no position concerning where within the Guidelines range determined by the Court the sentence should fall; and

c. make no motion for an upward departure under the Sentencing Guidelines.

If information relevant to sentencing, as determined by the Office, becomes known to the Office after the date of this agreement, the Office will not be bound by paragraphs 5(b) and 5(c). Should it be judged by the Office that the defendant has violated any provision of this agreement, the defendant will not be released from his plea of guilty but this Office will be released from its obligations under this agreement[.] (Plea Agrmt. ¶ 5) (emphasis added).

B.Plea Colloquy

During the plea hearing, the court notified petitioner, inter alia, that the maximum term of imprisonment he faced was life imprisonment and that the mandatory minimum was ten years' imprisonment. (See Docket Entry No. 4, Transcript of the Plea Allocution ("Pl. Tr."), dated June 20, 2007, at 16-17, attached as Exh. E to Gov't Mem.) The court then discussed the Sentencing Guidelines and explained to petitioner:

The bottom line is that until the date of sentencing when we get a presentence report, as I said before, and I hear from you, your lawyer and from the government, we will not know with any certainty what the guidelines will be or whether there will be grounds to depart from them or whether the Court will impose a non-guideline sentence, do you understand that? (Pl. Tr. at 20.) Petitioner, who was under oath, responded that he understood. (Id.) The court told petitioner that it would ask the attorneys to give their best estimate as to what the Guidelines were likely to be, but the court specifically warned petitioner to "please keep in mind that this a guess that could be wrong, do you understand that?" (Id.) Petitioner again responded that he understood. (Id.) The government estimated the likely Guidelines range would be 120 to 135 months' imprisonment. (Id. at 21.) Petitioner's counsel confirmed his agreement with the estimated Guidelines range. (Id.) The court then inquired whether petitioner was safety valve eligible and the government indicated he probably was not eligible because "the facts are that [petitioner] was a supervisor." (Id.) The court further inquired of petitioner whether he understood "that these are all estimates that are ...


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