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Simon v. United States

United States District Court, S.D. New York

July 2, 2014

DARYL SIMON, Petitioner,


EDGARDO RAMOS, District Judge.

Petitioner Daryl Simon ("Simon" or "Petitioner") moves to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"), alleging ineffective assistance of counsel in violation of the Sixth Amendment and a resultant denial of due process as guaranteed by the Fifth Amendment. Doc. 1 ("Motion"). In addition, Petitioner accuses the Government of breaching the terms of their plea agreement. Id. For the reasons set forth below, Petitioner's motion is DENIED to the extent it alleges a breach of the plea agreement. The Court reserves judgment on Petitioner's ineffective assistance claim, pending an evidentiary hearing.

I. Factual Background

A. The Initial Credit Card Fraud Offense

On May 11, 2006, Petitioner and another individual entered a Target store, located at the Palisades Center Mall in West Nyack, New York, and attempted to purchase electronic equipment using several different credit cards in the name of "D. Simon." See Resp't's Mem. of Law in Opp'n Ex. A (the "PSR"), ¶ 14. They then entered a parked car in the mall parking lot, where they were approached by police officers. Id. Petitioner admitted to the officers that he had been inside the store and was in possession of four counterfeit credit cards bearing his name and someone else's account number. Id. The officers found a laptop with an attached encoding device. Id. They saw a credit writing program on the laptop's screen, along with a list of fifty credit card numbers. Id. Petitioner was also in possession of a data flash drive that was subsequently found to contain 3, 200 account numbers, with corresponding identification information, for credit cards belonging to other people. Id. ¶¶ 14, 16. Petitioner admitted to possessing these numbers for the purpose of making unauthorized purchases or for resale. Id. ¶ 17. Petitioner was arrested approximately three months later, on August 16, 2006. Id. ¶ 18.

B. The 2007 Plea Proceeding

On September 25, 2007, Magistrate Judge George A. Yanthis accepted Petitioner's guilty plea to an Information charging him with one count of access device fraud in violation of 18 U.S.C. §§ 1029(a)(3) and 2 (the "2007 Information").[1] Id. ¶ 19. Specifically, Petitioner pled to having possessed account information for over 1, 000 credit cards issued to other people. Id. [2]

C. Failure To Appear for Sentencing

This Court, per the Hon. Charles L. Brieant, issued a warrant for Petitioner's arrest on December 5, 2007, based on violations of the terms of his release. Id. ¶ 20. Nevertheless, Petitioner failed to appear for his sentencing, which had been scheduled for January 3, 2008. Id. The sentencing proceedings were rescheduled for January 17, 2008. Id. Petitioner failed to appear for the rescheduled sentencing. Id. On March 25, 2008, a grand jury returned an indictment that charged petitioner with failure to appear in violation of 18 U.S.C. §§ 3146(a)(1) and (b)(1)(A)(ii) (the "Indictment"). Id. ¶ 21.[3]

D. The Subsequent Credit Card Fraud Offense

On May 14, 2008, law enforcement officers entered a basement apartment in the Bronx where Petitioner was thought to be residing. Id. ¶ 21. The officers observed various items upon entering, including computers, hard drives, a high-resolution printer, a credit card embossing machine, a credit card skimming and encoding machine, and a gun silencer. Id. Petitioner was not present at the time, but officers confirmed with the landlord and some of the neighbors that he had been seen in the apartment within that past week. Id. They also saw photographs of Petitioner and several identification cards in Petitioner's name. Id. One of the computers contained 1, 479 credit card numbers and images of fake identification cards in the process of being made. Id.

Petitioner was arrested approximately five months later, on October 1, 2008. Id. ¶ 22.

E. The Plea Agreement

The parties entered into a Plea Agreement on January 13, 2010. See Resp't's Mem. of Law in Opp'n Ex. B (the "Plea Agreement"). The Government agreed to accept Petitioner's plea to a two-count superseding information, which charged Petitioner with failure to appear for sentencing and with possession of approximately 1, 200 unauthorized access devices (the "Superseding Information"). See Plea Agreement at 1-4.[4] Those charges were in addition to the one count of access device fraud covered by the 2007 Information. In the 2010 Plea Agreement, the parties stipulated that the offense charged in the 2007 Information involved 250 or more victims, with a loss amount between $1 million and $2.5 million, and that the offense charged in Count Two of the 2008 Superseding Information involved fifty or more victims, with a loss amount between $400, 000 and $1 million. Id. at 3-4. The parties stipulated that the combined base offense level for purposes of the Sentencing Guidelines was 34. Id. at 4.

The parties also stipulated that, assuming Petitioner clearly demonstrated acceptance of responsibility for all three offenses with which he had been charged, a two-level reduction would be warranted under U.S.S.G § 3E1.1(a). Id. at 4. In other words, despite Petitioner's previous obstructive conduct, he would be granted the reduction if he accepted full responsibility for both the obstruction and the underlying crimes. See id. at 4 n.2. The Government reserved the right to:

seek denial of the adjustment for acceptance of responsibility and/or imposition of an adjustment for obstruction of justice, regardless of any stipulation..., should the defendant move to withdraw his guilty plea once it is entered, or should it be determined that the defendant has either (i) engaged in conduct, unknown to the Government at the time of the signing of [the Plea Agreement], that constitutes obstruction of justice or (ii) committed another crime after signing [the Plea Agreement].

Id. at 7 (citations omitted).

With the two-level reduction, the parties stipulated to a total adjusted offense level of 32 and a criminal history category of VI, resulting in a stipulated Guidelines range of 210 to 262 months' imprisonment (the "Stipulated Guidelines Range"). Id. at 5-6.

The Plea Agreement also contained a waiver of Petitioner's right to file a direct appeal or to seek collateral review of a sentence within or below the Stipulated Guidelines Range. Id. at 8. The provision was binding regardless of whether "the Court employ[ed] a Guidelines analysis different from that stipulated to [in the Plea Agreement]." Id. To the extent an appeal was not barred by the waiver, that appeal would be "limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) the... stipulation." Id.

F. The 2010 Plea Proceeding

Petitioner appeared before the Hon. Stephen C. Robinson on January 13, 2010, at which time he pled guilty to the Superseding Information. See Resp't's Mem. of Law in Opp'n Ex. C ("Plea Tr."). After Petitioner was sworn, the Court questioned him regarding his attorney, Mr. Richard D. Willstatter. Petitioner replied in the affirmative when asked whether he "had enough of an opportunity to discuss [the] case" with his attorney. Plea Tr. at 5. Petitioner also confirmed that he was fully satisfied with the representation and advice that his attorney had given him. Id. In response to a series of questions, Petitioner then confirmed that he had had sufficient time to discuss the Plea Agreement with his attorney, that he understood the document completely, that he did not have any questions for the Court regarding the contents or meaning of the Plea Agreement, and that he understood that the Plea Agreement represented the complete understanding between him and the Government. Id. at 13-14. The Court asked Petitioner twice whether he understood the Plea Agreement, and Petitioner provided an affirmative response both times. Id. Nevertheless, the Court directed Petitioner to look at the Plea Agreement once again and spend any time he needed with his attorney prior to signing it. Id. at 15.

Once Petitioner signed the Plea Agreement, the Court continued the allocution by discussing certain of the Agreement's specific provisions. See id. at 16. The Court began with the Guidelines calculation. See id. at 17-20. The Court confirmed that Petitioner understood that the Court might calculate a Guidelines range that was higher or lower than the Stipulated Guidelines Range. Id. at 18. Petitioner also verified that he understood that, "if the Court were to find a different guideline range than the one calculated in [the] plea agreement, [Petitioner] could not appeal [his] guilty plea based on the fact that the guideline range in [the] plea agreement was different than the one the Court ultimately found." Id.

The Court read and discussed a provision in which Petitioner waived his right to challenge the Government's failure to produce discovery, Jencks Act, Brady or Giglio material. Id. at 21-22. Petitioner was asked again if he needed any additional time to discuss the Plea Agreement with his counsel or if he wanted to discuss anything with the Court. Id. at 22-23. Petitioner indicated that he did not. Id. at 23.

The Government then asked the Court to specifically allocute Petitioner as to his understanding of the direct and collateral appeal waivers with respect to sentences at or below the Stipulated ...

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