United States District Court, W.D. New York
DECISION AND ORDER
P. GERACI, JR. Chief Judge United States District Court
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.
AND PROCEDURAL BACKGROUND
Plea Agreement and Colloquy
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
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.
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.
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.
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.
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.
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.
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 ...