United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE
Yasser Carrillo Chartrand seeks relief pursuant to 28 U.S.C.
§ 2255. For the reasons stated below, the motion is
22, 2016, Petitioner pled guilty to one count of conspiracy
to commit bank fraud, in violation of 18 U.S.C. § 1349.
See Docket No. 67 (Plea Agreement). In
Petitioner's plea agreement, Petitioner and the
Government agreed that Petitioner's base offense level
was 7. Id. ¶ 6. The parties also agreed that,
after several Sentencing Guidelines enhancements,
Petitioner's base offense level should be increased 8
levels, for an adjusted offense level of 15. See Id.
particularly relevant here, the parties further agreed that,
“[a]t sentencing, the government agrees not to oppose
the recommendation that the Court apply the two . . . level
downward adjustment of Guidelines § 3E1.1(a) (acceptance
of responsibility) and further agrees to move the Court to
apply the additional one . . . level downward adjustment of
Guidelines § 3E1.1(b), which would result in a total
offense level of 13.” Id. ¶ 9. Finally,
the parties agreed that Petitioner's criminal history
category was I, and that with a total offense level of 13,
his Guidelines imprisonment range was 12 to 18 months.
Id. ¶ 11. At sentencing, the Court found that
the Guideline range for imprisonment was, as the parties had
agreed, 12 to 18 months. The Court sentenced Petitioner to a
term of imprisonment of twelve months and one day. Petitioner
did not file a notice of appeal.
has since filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. In his motion,
Petitioner correctly notes that his plea agreement
“seems to [contain] a mathematical error.” Docket
No. 77 at 2. Specifically, the plea agreement contemplates
that Petitioner would receive a two-level downward adjustment
for acceptance of responsibility, pursuant to Guideline
§ 3E1.1(a). However, the plea agreement also
contemplates that Petitioner would receive an additional
one-level downward adjustment for pleading guilty, pursuant
to Guideline § 3E1.1(b). Thus, Petitioner argues, his
adjusted offense level should have been 12, rather than 13.
Combined with his criminal history category of I, this would
result in a Guidelines imprisonment range of 10 to 16 months.
Petitioner contends that his counsel “was ineffective
for not reading over the plea agreement for mathematical
motion must be denied. Guideline § 3E1.1(b) allows the
Court, upon the Government's motion, to reduce the
offense level by one level based on a defendant's
decision to plead guilty. This adjustment, however, is
available only if, among other things, “the offense
level determined prior to the operation of [§ 3E1.1(a)]
is level 16 or greater.” U.S.S.G. § 3E1.1(b).
was ineligible for the additional one-level downward
adjustment authorized by § 3E1.1(b) because his adjusted
offense level “prior to the operation of [§
3E1.1(a)]” was 15-not “16 or greater.”
Petitioner's plea agreement therefore correctly concludes
that Petitioner's total adjusted offense level is 13, and
not 12. It is unclear why the plea agreement states that
Petitioner is entitled to an additional one-level downward
adjustment pursuant to § 3E1.1(b). But even assuming
that he has demonstrated ineffective assistance of counsel,
Petitioner cannot “show that there is a reasonable
probability that, but for counsel's [assumed]
unprofessional errors, the result of the proceedings would
have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984).
Petitioner's Guideline calculation would have been the
same with or without the error he identifies in his plea
reasons stated above, Petitioner's § 2255 motion
(Docket No. 77) is denied. Further, pursuant to 28 U.S.C.
§ 2253(c)(1) and Rule 11(a) of the Rules Governing
Section 2255 Proceedings, the Court declines to issue a
certificate of appealability because Petitioner has not made
a substantial showing of the denial of a constitutional
the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal taken from this decision would not be taken
in good faith. Thus, leave to appeal in forma
pauperis is denied. Petitioner is nonetheless advised
that, should he decide to appeal this Decision and Order,
“Federal Rule of Appellate Procedure 4(a) governs the
time to appeal, ” and “[a] timely notice of
appeal must be filed even” though the Court declined to
issue a certificate of appealability. Section 2255 Rule
Clerk of the Court shall take all steps necessary to close
the parallel civil action, 17-CV-0563-A.