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Cleveland v. United States

United States District Court, W.D. New York

April 4, 2018

RONALD CLEVELAND, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          DECISION AND ORDER

          FRANK P. GERACI, JR. Chief Judge United States District Court

         Pro se Petitioner Ronald Cleveland filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 that challenges his conviction and sentence in this Court. ECF No. 96. For the reasons set forth below, the Motion is denied.

         FACTUAL AND PROCEDURAL BACKGROUND

         I. Plea Agreement and Colloquy

         Petitioner was charged in a two-count Indictment with conspiracy to possess with intent to distribute and to distribute 500 hundred or more grams of a mixture and substance containing cocaine, in violation of 21 U.S.C. § 846, and possession of a firearm in furtherance of a drug trafficking crime, in violation of 21 U.S.C. §§ 924(c)(1) and (2). ECF No. 1.

         On May 5, 2014, Petitioner appeared before the Court pursuant to a written Plea Agreement (ECF No. 79) and entered a guilty plea to Count I of the Indictment, conspiracy to possess with intent to distribute and to distribute 500 grams of cocaine. ECF No. 100-1 at 1-12 (Transcript of May 5, 2014 Plea Colloquy). The Government agreed to move to dismiss Count II of the Indictment.

         In the Plea Agreement, the parties agreed that a two-level increase pursuant to the United States Sentencing Guidelines § 2D1.1(b)(1) (possession of a dangerous weapon), and a two-level increase pursuant to Guidelines § 3C1.1 (obstruction of justice), applied to Petitioner's base offense level of 28. The sentencing range pursuant to the Guidelines was agreed to be between 121 and 151 months, and the Plea Agreement provided that upon entry of the guilty plea, the Government would file an information, pursuant to 21 U.S.C. § 851, alleging Petitioner's prior drug felony conviction as the basis for imposing the enhanced penalty provided for in 21 U.S.C. § 841(b)(1)(B), and that Petitioner admits to a prior drug conviction. ECF No. 79 at 2-5. The Plea Agreement also contained an express waiver of Petitioner's rights to appeal and collaterally attack the sentence the Court imposed if it fell within the sentencing range set forth the Plea Agreement. Id. at 10.

         After an extensive plea colloquy, the Plea Agreement was signed and entered in open court. ECF No. 100-1 at 14-44. The Court confirmed that Petitioner was of sound mind and was not coerced into entering the guilty plea. ECF No. 100-1 at 15-17. The Court reviewed and confirmed that Petitioner understood the substance of the charge he was pleading guilty to, that the charge carried a mandatory minimum of 10 years imprisonment and a maximum term of life, and that the Government would file an Information alleging that Petitioner was previously convicted of a drug felony and that Petitioner admitted that he was convicted of a prior drug felony. Id. at 18-24. The Court also asked whether Petitioner was satisfied with the representation of counsel. Petitioner indicated he was satisfied with his counsel, who had represented him throughout the “[m]ajority of [the proceedings].” Id. at 18.

         The Court then discussed and reviewed the Guidelines with Petitioner. Petitioner confirmed that he understood and agreed with each of the two-level increases to his base offense level for possession of a dangerous weapon and obstruction of justice. Petitioner asked questions related to the obstruction of justice enhancement but, after additional questioning from the Court, Petitioner confirmed that he understood there was a two-level increase for obstruction of justice. Id. at 24-29.

         The Court also confirmed that Petitioner understood that he was waiving his right to appeal or attack any component of the sentence the Court imposed. Id. at 32. Petitioner then executed the Plea Agreement in the Court's presence. The Court read the charge set forth in Count I of the Indictment and Petitioner entered his guilty plea to the charge. The Court summarized the proceedings and stated that Petitioner indicated that no one threatened or coerced him into pleading guilty, that he reviewed the Plea Agreement with his counsel before the plea colloquy and asked his counsel and the Court questions regarding the plea-questions “that were all intelligent”-and that he acknowledged that he understood the elements of the particular offense and the Guidelines calculations, including the adjusted offense level. Id. at 38-40. Accordingly, the Court found that the plea “was in all respects knowing and voluntary” and accepted Petitioner's plea. Id. at 39-40.

         II. Sentence

         The Court sentenced Petitioner to 125 months imprisonment and eight years of supervised release. ECF No. 86 (Judgment); ECF No. 100-1 at 47-66. The parties discussed the differing sentencing range set forth in the Presentence Report as a result of the changes in the Guidelines. These changes reduced the sentencing range from 121 to 151 months to 120 to 125 months. ECF No. 100-1 at 53-57. The Court advised Petitioner of his right to appeal, but noted that because his sentence was within the sentencing range set forth in the Plea Agreement, he waived his right to appeal the sentence. ECF 100-1 at 63.

         III. Appeal

          Petitioner timely filed a Notice of Appeal (ECF No. 87) and argued that his counsel was ineffective for agreeing to the two-level obstruction of justice enhancement and that the Court erred in adopting the enhancement. The United States Court of Appeals for the Second Circuit dismissed the appeal in a Summary Order. Because Petitioner claimed ineffective assistance of counsel that rendered the appeal waiver unenforceable, the Court would not consider the claim on direct appeal because the record did “not contain information necessary to resolve [Petitioner's] claim that his counsel was ineffective in failing to seek to reserve his right to appeal the district court's imposition of the obstruction-of-justice enhancement.” ECF No. 92 (Mandate). Petitioner's ineffective assistance of counsel claim was therefore dismissed ...


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