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Shand v. United States

United States District Court, E.D. New York

March 30, 2018

WAYNE ANTHONY SHAND, pro se, Petitioner,


          DORA L. IRIZARRY, Chief United States District Judge:

         On August 28, 2012, pro se petitioner Wayne Anthony Shand (“Petitioner”) was convicted upon a plea of guilty to illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2).[1] On December 18, 2012, this Court sentenced Petitioner to 77 months of incarceration, followed by three (3) years of supervised release. Dec. 18, 2012[2] Sentencing Tr. at 13:7-9, Dkt. Entry No. 6-7 (“Dec. 18 Tr.”). On January 13, 2014, the Second Circuit Court of Appeals affirmed the judgment of this Court. See generally, United States v. Shand, 739 F.3d 714 (2d Cir. 2014). Petitioner has not petitioned the United States Supreme Court for a writ of certiorari.

         On March 17, 2014, Petitioner timely filed a motion to “vacate, set aside, or correct sentence, ” pursuant to 28 U.S.C. § 2255 (“Section 2255”). See generally, Pet'r's Mot. to Vacate, Set Aside, or Correct Sentence, Dkt. Entry No. 1 (“Pet'r's Mot.”). Petitioner contends that he received ineffective assistance of trial counsel because trial counsel failed to argue at sentencing that this Court was without discretion to deny the Government's motion for a four-point downward departure, under Section 5K3.1 of the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”). Pet'r's Mot. at 4-5; Gov't Mem. of Law in Opp'n to Pet. at 12, Dkt. Entry No. 6 (“Gov't Opp'n”). Petitioner also seems to argue that trial counsel promised Petitioner that Petitioner would qualify for the downward departure. Gov't Opp'n at 12. Petitioner requests that the Court hold an evidentiary hearing and assign him counsel on the motion. Pet'r's Mot. at 12.

         For the reasons that follow, Petitioner's Section 2255 motion is denied in its entirety.


         Officers from the New York City Police Department (“NYPD”) arrested Petitioner in Queens, New York, on May 6, 2011, and charged him with Possession of a Forged Instrument in the Second Degree, in violation of New York State Penal Law § 170.25. Gov't Opp'n at 4. When the officers ran a criminal history report for Petitioner, they discovered that he had been removed previously from the United States after being convicted of an aggravated felony in New York State. Id. A search of United States Immigration and Customs Enforcement records reflected that Petitioner neither had sought nor received permission to reenter the United States after being removed. Id. On September 8, 2011, a grand jury of this district returned an indictment on a single count of illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2). See Indictment, No. 11-cr-627 (DLI), Dkt. Entry No. 7.

         Petitioner pled guilty pursuant to a plea agreement to the sole count of the Indictment before the Honorable Roanne L. Mann, U.S.M.J., on July 13, 2012. See Gov't Opp'n at 4. Under the terms of the plea agreement, Petitioner consented to removal and waived any right to apply for relief or protection from removal. Id. The Government agreed to seek a four-level downward departure of Petitioner's total offense level under U.S.S.G. § 5K3.1, pursuant to the United States Department of Justice's “fast-track” program for certain immigration offenses. Id. at 4-5. The plea agreement set forth an estimated offense level of 13 for Petitioner, which accounted for the four-level downward departure under the fast-track program, plus a three-level reduction if Petitioner demonstrated his acceptance of responsibility and pled guilty on or before July 13, 2012. Id. at 5. Premised on the parties' belief that Petitioner had a Criminal History Category (“CHC”) of III, the resulting Sentence Guideline Range (“SGR”) contained in the plea agreement was 18 to 24 months of imprisonment. Id.

         Petitioner's guilty plea was accepted by this Court on August 28, 2012. Gov't Opp'n at 7. The Probation Department disclosed Petitioner's Presentence Report (“PSR”) on September 27, 2012. Id. at 5. Probation determined that Defendant had a CHC of VI, rather than III. Id. The reason for the discrepancy between the plea agreement's CHC and that contained in the PSR was the Probation Department's discovery that Petitioner had reentered the United States illegally in or before 2004. Id. The Government had assumed that the illegal reentry occurred in 2011. Id. Because the offense commenced in 2004, or earlier, prior convictions that had been excluded previously from the calculation of Petitioner's CHC were now included, yielding a higher CHC. Id. at 6. Additionally, Probation calculated Petitioner's total offense level (“TOL”) at 17, including the four-level downward departure that the Government had promised to seek under the fast-track program. Id. at 5. Without that departure, Probation calculated the TOL at 21. Id. With a CHC of VI, the former TOL would result in a SGR of imprisonment of 51 to 63 months. Id. The latter TOL would result in a SGR of 77 to 96 months. Id.

         Petitioner first appeared for sentencing before this Court on December 5, 2012. See generally, Dec. 5, 2012 Sentencing Tr., Dkt. Entry No. 6-6 (“Dec. 5 Tr.”). At the hearing, the Government sought the four-level downward departure set forth in the plea agreement. See Id. at 15:11-15. The Court explained to both parties that, although the Government may move for such a departure, it ultimately is within the Court's discretion whether to grant the reduction. Id. at 16:13-15. The Court denied the Government's motion. Dec. 5 Tr. at 25:22-23. After the denial, the Court adjourned the hearing to give Petitioner the opportunity to consult with his attorney and decide whether he wished to withdraw his guilty plea in light of the Court's ruling. Id. at 26:5-11.

         The parties reconvened before the Court on December 18, 2012. See generally, Dec. 18 Tr. At the December 18 hearing, Petitioner stated that he did not want to withdraw his guilty plea, and was ready to go forward with sentencing. Id. at 4:15-24. Having denied the Government's downward departure motion, the Court sentenced Petitioner to the bottom of the Guideline range calculated by the Probation Department: 77 months in custody, followed by three (3) years of supervised release. Id. at 13:3-10.

         Petitioner timely appealed, arguing that the Court did not have discretion to deny the Government's motion for a four-level downward departure, and that his sentence was procedurally and substantively unreasonable. See Gov't Opp'n at 9. Petitioner did not raise an ineffective assistance of counsel claim on appeal. The Second Circuit affirmed Petitioner's conviction and sentence on January 13, 2014, and held that “a district court may, but need not, depart downward upon an appropriate motion by the Government under U.S.S.G § 5K3.1.” Shand, 739 F.3d at 715 (emphasis added).

         Petitioner now argues that his trial counsel was constitutionally ineffective, and asks this Court to grant him an evidentiary hearing on this issue, and appoint him counsel.


         I. ...

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