United States District Court, E.D. New York
JONATHAN KELLY, Pro Se FCI Cumberland Cumberland, MD,
LORETTA E. LYNCH, Berit Berger, UNITED STATES ATTORNEY, Brooklyn, NY.
MEMORANDUM AND ORDER
STERLING JOHNSON, Jr., District Judge.
Petitioner Jonathan Kelly ("Petitioner" or "Kelly") proceeding pro se, moves pursuant to 28 U.S.C. § 2255 ("Section 2255") to vacate, set aside, or correct his sentence on the grounds that he received ineffective assistance of counsel. The government opposes. For the following reasons, the motion is DENIED.
On May 5, 2008, Petitioner was charged in a superseding indictment with five sex trafficking offenses, some involving minors. (See Dkt. No. 34.) On September 18, 2008, he pleaded guilty to two of these charges, to wit: conspiracy to engage in sex trafficking, in violation of 18 U.S.C. § 371; and sex trafficking of a minor, in violation of 18 U.S.C. §§ 1591(a)(1) and (a)(2). The plea agreement estimated a combined adjusted offense level of 34, a criminal history category of I, and an adjusted Sentencing Guideline range of 151 to 188 months. The plea agreement contained a non-binding estimate clause providing that Petitioner would not be entitled to withdraw his plea if the Guideline offense level determined by Probation or the Court differed from the estimate in the plea agreement. The plea agreement also contained an appellate waiver clause precluding Petitioner from appealing his conviction or sentence, or pursuing a Section 2255 petition, if the Court imposed a term of imprisonment of 188 or below. The agreement also stated that it "is binding without regard to the sentencing analysis used by the Court." (Dkt. No. 6 at Exh. B.)
At his September 19, 2008 plea allocution, Petitioner testified under oath that he had read and discussed the plea agreement with his lawyer, that he was fully satisfied with the advice and representation given by his lawyer, that the agreement was not entered pursuant to any threats or any promises not contained therein, and that the signature on the agreement was his own.
Prior to sentencing, the Probation Department calculated a total offense level two points higher than that in the plea agreement, having added enhancements for the use of a computer and Kelly's role as an organizer and leader in the offense. U.S.S.G. §§ 2G1.3(b)(3)(B); 3B1.1(c)(2). However, at the July 2, 2010, sentencing, Kelly's focus was the undue influence enhancement of U.S.S.G. § 2G1.3(b)(2)(b). He claimed the enhancement was unwarranted because the Jane Doe victims were willing participants in the prostitute lifestyle:
Petitioner: I understand that what I did was wrong. Right. I understand what I did was wrong....I didn't know the girl was fourteen years old. It really didn't matter how old she was. I shouldn't have did [ sic ] it, but a lot of things that you said besides what I did isn't [ sic ] true. What I did, I did, I did pimp the girl, I did, I did do that....And - and I know - I know what I did was wrong. I didn't beat people. I didn't do things like that. I was being selfish. You know what I'm saying? I'm not really that type of person.
The Court: You're a nice pimp?
Petitioner: I'm not. I don't want to be a pimp anymore.
(Tr. of 7/2/10 Sentencing at 16.)
The Court applied the enhancement, as it was not only in Probation's recommendation but also in the plea agreement. The Probation Department, however, assigned Kelly to criminal history category III instead of I. This difference led to a substantially higher guideline range of 235 to 293 months.
The Court sentenced Kelly to 188 months, relying instead on the terms of the plea agreement. Kelly appealed his sentence and the Second Circuit affirmed, finding that Kelly's right to appeal had been waived. ...