United States District Court, E.D. New York
MEMORANDUM & ORDER
L. IRIZARRY, Chief United States District Judge:
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). On December 18, 2012, this Court sentenced
Petitioner to 77 months of incarceration, followed by three
(3) years of supervised release. Dec. 18, 2012 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.
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.
reasons that follow, Petitioner's Section 2255 motion is
denied in its entirety.
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.
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
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.
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.
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.
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).
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.