United States District Court, N.D. New York
For Petitioner-Defendant: BRIAN SHEPPARD, ESQ., OF COUNSEL, OFFICE OF BRIAN SHEPPARD, New Hyde Park, NY.
CARLA B. FREEDMAN, ESQ., Ass't United States Attorney, OF COUNSEL, HON. RICHARD S. HARTUNIAN, United States Attorney, Syracuse, NY.
DAVID N. HURD, United States District Judge.
MEMORANDUM--DECISION and ORDER
Defendant James Mack (" Mack" or " defendant" ) brings this motion pursuant to 28 U.S.C. § 2255 seeking a vacatur of his sentence, re-sentencing, and a clarification of any off-the-record determinations made regarding his statements to the Probation Department. The United States of America (" the Government" ) opposes and defendant has replied. The motion was considered without oral argument.
II. FACTUAL BACKGROUND
On April 7, 2010, a three-count superseding indictment was filed in the Northern District of New York charging Mack with: (1) Conspiring to posses with intent to distribute and distribute 500 grams or more of a mixture and substance containing cocaine between August 2008 and April 2009 (" Count 1" ); (2) attempting to posses with intent to distribute 500 grams or more of a mixture and substance containing cocaine between October 8 and October 9, 2008 (" Count 2" ); and (3) possession with intent to distribute five grams or more of a mixture or substance containing cocaine base on December 17, 2009 (" Count 3" ). On February 8, 2011, defendant pled guilty to Count 3 with the understanding that Counts 1 and 2 would be dismissed. At this time, defendant was attorney Jeffrey Parry (" Attorney Parry" ).
On December 12, 2011, a sentencing hearing was held at which Mack was represented by Attorney Parry. The Government contended at the hearing, and in its sentencing memorandum, that the appropriate sentencing range was seventy-seven to ninety-six months; whereas defendant claimed the appropriate range was thirty-three
to forty-one months. Defendant argued that the possession of cocaine as charged in Counts 1 and 2 of the superseding indictment, which had been dismissed, could not be considered during sentencing. Sheppard Decl., Ex. 4, ECF No. 84-6, 2 (Def.'s Sentencing Mem.). The Government disagreed, asserting that conduct related to Counts 1 and 2 constituted relevant conduct which should be considered when determining the proper guideline range. Sheppard Decl., Ex. 5, ECF No. 84-7, 6-10 (Sentencing Hr'g Tr.).
At sentencing, it was found that the attempted possession of cocaine between October 8 and 9, 2008, as described in Count 2, constituted relevant conduct. Accordingly, the guideline imprisonment range became seventy-seven to ninety-six months. Id. at 14. Mack was sentenced to a term of imprisonment of seventy-seven months on Count 3, and the other counts were dismissed.
Attorney Parry filed a notice of appeal on behalf of defendant on December 19, 2011. On October 29, 2012, Attorney Parry moved, before the United States Court of Appeals for the Second Circuit, to be relieved as counsel for Mack, stating that he did not believe the grounds upon which he had intended to appeal were meritorious. See Sheppard Decl., Ex. 6, ECF No. 84-8. On November 9, 2012, attorney Brian Sheppard (" Attorney Sheppard" ), who represents Mack on the instant motion, was substituted as appellate counsel. On February 11, 2013, Attorney Sheppard filed an appellate brief in the Second Circuit, arguing that the court erred by failing to take into account amendments to the Sentencing ...