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Ming v. United States

United States District Court, Second Circuit

May 3, 2013

DONG QI MING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

REPORT AND RECOMMENDATION

DEBRA FREEMAN, Magistrate Judge.

TO THE HONORABLE RICHARD J. SULLIVAN, U.S.D.J.

Pro se petitioner Dong Qi Ming ("Petitioner"), having pleaded guilty in this Court to federal offenses and, in connection with his plea, having expressly waived his rights to both direct appeal and collateral review of his conviction and sentence, now seeks to have his sentence modified pursuant to a writ of error coram nobis or audita querela, pursuant to 28 U.S.C. § 1651. As neither of these extraordinary writs are available to Petitioner, I recommend that his Petition be denied.

BACKGROUND

A. Petitioner's Guilty Plea and Sentence

Petitioner was convicted in this Court, upon his guilty plea, of three crimes:

(1) conspiring to murder H.Y.T., [1] as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, in violation of 18 U.S.C. § 1959(a)(5) ("Count One");
(2) conspiring to murder J.A.Q., as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity in violation of 18 U.S.C. § 1959(a)(5) ("Count Two"); and
(3) using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) ("Count Three").

( See Letter to the Court from Aimee Hector, A.U.S.A., dated Apr. 22, 2009 ("Hector Ltr") (Mi. 37 in 00 Cr. 694[2]), Ex. B (Transcript of plea allocution, dated Dec. 6, 2000).)

Petitioner pleaded guilty to these crimes on December 6, 2000, before the Honorable Michael B. Mukasey, U.S.D.J., pursuant to a plea agreement signed by Petitioner on that date. ( See Hector Ltr., Ex. A (Letter to Howard Leader, Esq., from Mary Jo White, U.S. Attorney, dated Nov. 30, 2000, countersigned by Petitioner on Dec. 6, 2000).) The plea agreement contained the following stipulation regarding the parties' calculation of a sentence in Petitioner's case, under the federal Sentencing Guidelines:

... [T]he defendant's calculated Sentencing Guidelines range is life.... Under § 5G1.2(d) [of the Sentencing Guidelines], because the sentence imposed on Count One would be less than the total punishment, the sentences on Count One and Count Two shall run consecutively, to the statutory maximum of ten years on each count. Under § 5G1.2(a), the five-year mandatory sentence on Count Three shall be imposed to run consecutively to any other sentence. As a result, the defendant's stipulated Sentencing Guidelines range is 300 months. ( Id., at 4.) Petitioner expressly agreed that no downward departure from this stipulated Sentencing Guidelines range would be warranted, and he agreed that he would not seek such a departure or any other adjustment not set forth in the plea agreement. ( Id., at 4-5.)

Further, under the plea agreement, Petitioner agreed that he would "neither appeal, nor otherwise litigate under 28 U.S.C. § 2255, any sentence within or below the stipulated Sentencing Guidelines range set forth above." ( Id. , at 5.) Petitioner agreed that this provision would be binding on him, even if the Court were to employ a Guidelines analysis different from the one stated in the plea agreement. ( Id. , at 6.) Petitioner also agreed that any appeal of his sentence that was not foreclosed by this provision would "be limited to that portion of the sentencing calculation that [wa]s inconsistent with (or not addressed by)" the parties' stipulation. ( Id. )

During the plea allocution conducted by the Court, the Court confirmed with Petitioner, through a Foochow (Fuzhou) interpreter, that he had reviewed the plea agreement with his counsel and an interpreter, that Petitioner was satisfied that he understood the agreement before he signed it, and that he had entered into the agreement voluntarily. ...


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